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Table of Contents

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
_________________________________________________ 
FORM 10-Q
_________________________________________________ 
☒
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarterly Period Ended September 30, 2019
OR
☐
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from                      to                     
Commission File Number 1-12658
_________________________________________________ 
ALBEMARLE CORPORATION
(Exact name of registrant as specified in its charter)
_________________________________________________ 
Virginia
 
54-1692118
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
4250 Congress Street, Suite 900
Charlotte, North Carolina 28209
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code - (980) 299-5700
_________________________________________________ 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  ☒    No  ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).    Yes  ☒    No  ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
 
☒
 
Accelerated filer
 
☐
Non-accelerated filer
 
☐
 
Smaller reporting company
 
☐
 
 
 
 
Emerging growth company
 
☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  ☐    No  ☒
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
 
Trading Symbol
 
Name of each exchange on which registered
COMMON STOCK, $.01 Par Value
 
ALB
 
New York Stock Exchange
Number of shares of common stock, $.01 par value, outstanding as of October 31, 2019: 106,033,033

Table of Contents

ALBEMARLE CORPORATION
INDEX – FORM 10-Q
 
 
 
 
 
 
Page
Number(s)
 
 
 
 
 
 
 
 
 
3
 
 
 
 
4
 
 
 
 
5
 
 
 
 
6
 
 
 
 
7
 
 
 
 
8-25
 
 
 
25-42
 
 
 
42
 
 
 
42
 
 
 
 
 
 
 
43
 
 
 
43
 
 
 
43
 
 
 
43
 
 
 
 
44
 
 
 
EXHIBITS
 
 

2
Table of Contents

PART I. FINANCIAL INFORMATION
 
Item 1.
Financial Statements (Unaudited).
ALBEMARLE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(In Thousands, Except Per Share Amounts)
(Unaudited)

 
Three Months Ended
September 30,
 
Nine Months Ended
September 30,
 
2019
 
2018
 
2019
 
2018
Net sales
$
879,747

 
$
777,748

 
$
2,596,863

 
$
2,453,251

Cost of goods sold
569,880

 
497,211

 
1,677,596

 
1,556,379

Gross profit
309,867

 
280,537

 
919,267

 
896,872

Selling, general and administrative expenses
108,135

 
100,167

 
348,205

 
325,174

Research and development expenses
15,585

 
16,610

 
44,024

 
53,670

Gain on sale of business
—

 
—

 
—

 
(218,705
)
Operating profit
186,147

 
163,760

 
527,038

 
736,733

Interest and financing expenses
(11,108
)
 
(12,988
)
 
(35,295
)
 
(39,834
)
Other (expenses) income, net
(11,316
)
 
3,793

 
(7,090
)
 
(31,906
)
Income before income taxes and equity in net income of unconsolidated investments
163,723

 
154,565

 
484,653

 
664,993

Income tax expense
25,341

 
33,167

 
93,266

 
133,630

Income before equity in net income of unconsolidated investments
138,382

 
121,398

 
391,387

 
531,363

Equity in net income of unconsolidated investments (net of tax)
33,236

 
22,081

 
106,727

 
61,727

Net income
171,618

 
143,479

 
498,114

 
593,090

Net income attributable to noncontrolling interests
(16,548
)
 
(13,734
)
 
(55,277
)
 
(29,124
)
Net income attributable to Albemarle Corporation
$
155,070

 
$
129,745

 
$
442,837

 
$
563,966

Basic earnings per share
$
1.46

 
$
1.21

 
$
4.18

 
$
5.16

Diluted earnings per share
$
1.46

 
$
1.20

 
$
4.16

 
$
5.11

Weighted-average common shares outstanding – basic
105,999

 
107,315

 
105,920

 
109,223

Weighted-average common shares outstanding – diluted
106,299

 
108,302

 
106,324

 
110,276

See accompanying Notes to the Condensed Consolidated Financial Statements.

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Table of Contents

ALBEMARLE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(In Thousands)
(Unaudited)

 
Three Months Ended
September 30,
 
Nine Months Ended
September 30,
 
2019
 
2018
 
2019
 
2018
Net income
$
171,618

 
$
143,479

 
$
498,114

 
$
593,090

Other comprehensive (loss) income, net of tax:
 
 
 
 
 
 
 
Foreign currency translation
(100,069
)
 
(9,549
)
 
(100,380
)
 
(95,515
)
Pension and postretirement benefits
(5
)
 
11

 
8

 
37

Net investment hedge
12,745

 
(3,621
)
 
13,012

 
4,947

Interest rate swap
641

 
642

 
1,923

 
1,926

Total other comprehensive loss, net of tax
(86,688
)
 
(12,517
)
 
(85,437
)
 
(88,605
)
Comprehensive income
84,930

 
130,962

 
412,677

 
504,485

Comprehensive income attributable to noncontrolling interests
(16,426
)
 
(13,729
)
 
(55,135
)
 
(29,042
)
Comprehensive income attributable to Albemarle Corporation
$
68,504

 
$
117,233

 
$
357,542

 
$
475,443

See accompanying Notes to the Condensed Consolidated Financial Statements.

4
Table of Contents

ALBEMARLE CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands)
(Unaudited)
 
September 30,
 
December 31,
 
2019
 
2018
Assets
 
 
 
Current assets:
 
 
 
Cash and cash equivalents
$
317,823

 
$
555,320

Trade accounts receivable, less allowance for doubtful accounts (2019 – $4,391; 2018 – $4,460)
637,037

 
605,712

Other accounts receivable
86,556

 
52,059

Inventories
802,434

 
700,540

Other current assets
125,902

 
84,790

Total current assets
1,969,752

 
1,998,421

Property, plant and equipment, at cost
5,406,123

 
4,799,063

Less accumulated depreciation and amortization
1,882,086

 
1,777,979

Net property, plant and equipment
3,524,037

 
3,021,084

Investments
551,657

 
528,722

Other assets
200,858

 
80,135

Goodwill
1,534,241

 
1,567,169

Other intangibles, net of amortization
361,058

 
386,143

Total assets
$
8,141,603

 
$
7,581,674

Liabilities And Equity
 
 
 
Current liabilities:
 
 
 
Accounts payable
$
527,052

 
$
522,516

Accrued expenses
273,709

 
257,323

Current portion of long-term debt
539,960

 
307,294

Dividends payable
38,678

 
35,169

Current operating lease liability
24,606

 
—

Income taxes payable
17,238

 
60,871

Total current liabilities
1,421,243

 
1,183,173

Long-term debt
1,381,984

 
1,397,916

Postretirement benefits
45,752

 
46,157

Pension benefits
272,345

 
285,396

Other noncurrent liabilities
618,822

 
526,942

Deferred income taxes
393,120

 
382,982

Commitments and contingencies (Note 9)

 

Equity:
 
 
 
Albemarle Corporation shareholders’ equity:
 
 
 
Common stock, $.01 par value, issued and outstanding – 106,031 in 2019 and 105,616 in 2018
1,060

 
1,056

Additional paid-in capital
1,379,419

 
1,368,897

Accumulated other comprehensive loss
(435,977
)
 
(350,682
)
Retained earnings
2,892,057

 
2,566,050

Total Albemarle Corporation shareholders’ equity
3,836,559

 
3,585,321

Noncontrolling interests
171,778

 
173,787

Total equity
4,008,337

 
3,759,108

Total liabilities and equity
$
8,141,603

 
$
7,581,674

See accompanying Notes to the Condensed Consolidated Financial Statements.

5
Table of Contents

ALBEMARLE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
(Unaudited)
(In Thousands, Except Share Data)
 
 
 
 
Additional
Paid-in Capital
 
Accumulated Other
Comprehensive (Loss) Income
 
Retained Earnings
 
Total Albemarle
Shareholders’ Equity
 
Noncontrolling
Interests
 
Total Equity
Common Stock
 
Shares
 
Amounts
 
 
 
 
 
 
Balance at June 30, 2019
105,971,464

 
$
1,059

 
$
1,373,213

 
$
(349,411
)
 
$
2,775,940

 
$
3,800,801

 
$
173,602

 
$
3,974,403

Net income
 
 
 
 
 
 
 
 
155,070

 
155,070

 
16,548

 
171,618

Other comprehensive loss
 
 
 
 
 
 
(86,566
)
 
 
 
(86,566
)
 
(122
)
 
(86,688
)
Cash dividends declared, $0.3675 per common share
 
 
 
 
 
 
 
 
(38,953
)
 
(38,953
)
 
(18,250
)
 
(57,203
)
Stock-based compensation
 
 
 
 
4,802

 
 
 
 
 
4,802

 
 
 
4,802

Exercise of stock options
36,000

 
1

 
1,608

 
 
 
 
 
1,609

 
 
 
1,609

Issuance of common stock, net
26,489

 
—

 
—

 
 
 
 
 
—

 
 
 
—

Shares withheld for withholding taxes associated with common stock issuances
(2,865
)
 
—

 
(204
)
 
 
 
 
 
(204
)
 
 
 
(204
)
Balance at September 30, 2019
106,031,088

 
$
1,060

 
$
1,379,419

 
$
(435,977
)
 
$
2,892,057

 
$
3,836,559

 
$
171,778

 
$
4,008,337

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Balance at June 30, 2018
108,441,363

 
$
1,084

 
$
1,609,526

 
$
(301,679
)
 
$
2,384,645

 
$
3,693,576

 
$
143,704

 
$
3,837,280

Net income
 
 
 
 
 
 
 
 
129,745

 
129,745

 
13,734

 
143,479

Other comprehensive loss
 
 
 
 
 
 
(12,512
)
 
 
 
(12,512
)
 
(5
)
 
(12,517
)
Cash dividends declared, $0.335 per common share
 
 
 
 
 
 
 
 
(35,679
)
 
(35,679
)
 


 
(35,679
)
Stock-based compensation
 
 
 
 
3,287

 
 
 
 
 
3,287

 
 
 
3,287

Exercise of stock options
42,683

 
1

 
1,013

 
 
 
 
 
1,014

 
 
 
1,014

Shares repurchased
(2,311,485
)
 
(23
)
 
(249,977
)
 
 
 
 
 
(250,000
)
 
 
 
(250,000
)
Issuance of common stock, net
20,079

 
—

 
—

 
 
 
 
 
—

 
 
 
—

Shares withheld for withholding taxes associated with common stock issuances
(6,137
)
 
—

 
(587
)
 
 
 
 
 
(587
)
 
 
 
(587
)
Balance at September 30, 2018
106,186,503

 
$
1,062

 
$
1,363,262

 
$
(314,191
)
 
$
2,478,711

 
$
3,528,844

 
$
157,433

 
$
3,686,277

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Balance at January 1, 2019
105,616,028

 
$
1,056

 
$
1,368,897

 
$
(350,682
)
 
$
2,566,050

 
$
3,585,321

 
$
173,787

 
$
3,759,108

Net income
 
 
 
 
 
 
 
 
442,837

 
442,837

 
55,277

 
498,114

Other comprehensive loss
 
 
 
 
 
 
(85,295
)
 
 
 
(85,295
)
 
(142
)
 
(85,437
)
Cash dividends declared, $1.1025 per common share
 
 
 
 
 
 
 
 
(116,830
)
 
(116,830
)
 
(57,212
)
 
(174,042
)
Stock-based compensation
 
 
 
 
16,999

 
 
 
 
 
16,999

 
 
 
16,999

Exercise of stock options
161,909

 
2

 
4,812

 
 
 
 
 
4,814

 
 
 
4,814

Issuance of common stock, net
383,313

 
3

 
(3
)
 
 
 
 
 
—

 
 
 
—

Increase in ownership interest of noncontrolling interest
 
 
 
 
(513
)
 
 
 
 
 
(513
)
 
68

 
(445
)
Shares withheld for withholding taxes associated with common stock issuances
(130,162
)
 
(1
)
 
(10,773
)
 
 
 
 
 
(10,774
)
 
 
 
(10,774
)
Balance at September 30, 2019
106,031,088

 
$
1,060

 
$
1,379,419

 
$
(435,977
)
 
$
2,892,057

 
$
3,836,559

 
$
171,778

 
$
4,008,337

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Balance at January 1, 2018
110,546,674

 
$
1,105

 
$
1,863,949

 
$
(225,668
)
 
$
2,035,163

 
$
3,674,549

 
$
143,147

 
$
3,817,696

Net income
 
 
 
 
 
 
 
 
563,966

 
563,966

 
29,124

 
593,090

Other comprehensive loss
 
 
 
 
 
 
(88,523
)
 
 
 
(88,523
)
 
(82
)
 
(88,605
)
Cash dividends declared, $1.005 per common share
 
 
 
 
 
 
 
 
(109,219
)
 
(109,219
)
 
(14,756
)
 
(123,975
)
Cumulative adjustment from adoption of income tax standard update (Note 1)
 
 
 
 
 
 
 
 
(11,199
)
 
(11,199
)
 
 
 
(11,199
)
Stock-based compensation
 
 
 
 
14,015

 
 
 
 
 
14,015

 
 
 
14,015

Exercise of stock options
71,649

 
1

 
2,301

 
 
 
 
 
2,302

 
 
 
2,302

Shares repurchased
(4,665,618
)
 
(47
)
 
(499,953
)
 
 
 
 
 
(500,000
)
 
 
 
(500,000
)
Issuance of common stock, net
378,006

 
4

 
(4
)
 
 
 
 
 
—

 
 
 
—

Shares withheld for withholding taxes associated with common stock issuances
(144,208
)
 
(1
)
 
(17,046
)
 
 
 
 
 
(17,047
)
 
 
 
(17,047
)
Balance at September 30, 2018
106,186,503

 
$
1,062

 
$
1,363,262

 
$
(314,191
)
 
$
2,478,711

 
$
3,528,844

 
$
157,433

 
$
3,686,277

See accompanying Notes to the Condensed Consolidated Financial Statements.

6
Table of Contents

ALBEMARLE CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
(Unaudited)
 
Nine Months Ended
September 30,
 
2019
 
2018
Cash and cash equivalents at beginning of year
$
555,320

 
$
1,137,303

Cash flows from operating activities:
 
 
 
Net income
498,114

 
593,090

Adjustments to reconcile net income to cash flows from operating activities:
 
 
 
Depreciation and amortization
156,718

 
150,511

Gain on sale of business
—

 
(218,705
)
Gain on sale of property
(11,079
)
 
—

Stock-based compensation and other
15,169

 
11,785

Equity in net income of unconsolidated investments (net of tax)
(106,727
)
 
(61,727
)
Dividends received from unconsolidated investments and nonmarketable securities
62,982

 
32,794

Pension and postretirement expense (benefit)
1,641

 
(2,708
)
Pension and postretirement contributions
(10,728
)
 
(11,068
)
Unrealized gain on investments in marketable securities
(1,701
)
 
(1,615
)
Deferred income taxes
7,726

 
43,400

Working capital changes
(289,587
)
 
(131,813
)
Other, net
23,110

 
(27,003
)
Net cash provided by operating activities
345,638

 
376,941

Cash flows from investing activities:
 
 
 
Acquisitions, net of cash acquired
—

 
(11,403
)
Capital expenditures
(608,456
)
 
(471,675
)
Cash proceeds from divestitures, net
—

 
413,479

Proceeds from sale of property and equipment
10,356

 
—

Sales of (investments in) marketable securities, net
1,177

 
(761
)
Investments in equity and other corporate investments
(2,569
)
 
(5,346
)
Net cash used in investing activities
(599,492
)
 
(75,706
)
Cash flows from financing activities:
 
 
 
Other borrowings (repayments), net
232,183

 
(134,505
)
Dividends paid to shareholders
(113,321
)
 
(108,922
)
Dividends paid to noncontrolling interests
(57,212
)
 
(14,756
)
Repurchases of common stock
—

 
(500,000
)
Proceeds from exercise of stock options
4,814

 
2,302

Withholding taxes paid on stock-based compensation award distributions
(10,774
)
 
(17,047
)
Other
(445
)
 
—

Net cash provided by (used in) financing activities
55,245

 
(772,928
)
Net effect of foreign exchange on cash and cash equivalents
(38,888
)
 
(24,384
)
Decrease in cash and cash equivalents
(237,497
)
 
(496,077
)
Cash and cash equivalents at end of period
$
317,823

 
$
641,226

See accompanying Notes to the Condensed Consolidated Financial Statements.

7
Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)


NOTE 1—Basis of Presentation:
In the opinion of management, the accompanying unaudited condensed consolidated financial statements of Albemarle Corporation and our wholly-owned, majority-owned and controlled subsidiaries (collectively, “Albemarle,” “we,” “us,” “our” or “the Company”) contain all adjustments necessary for a fair statement, in all material respects, of our condensed consolidated balance sheets as of September 30, 2019 and December 31, 2018, our consolidated statements of income, consolidated statements of comprehensive income and consolidated statements of changes in equity for the three-month and nine-month periods ended September 30, 2019 and 2018 and our condensed consolidated statements of cash flows for the nine-month periods ended September 30, 2019 and 2018. Cost of goods sold for the three-month period ended September 30, 2019 includes expense of $7.0 million due to the correction of an out-of-period error regarding carbonate inventory values related to the three-month period ended June 30, 2019. The Company does not believe this adjustment is material to the consolidated financial statements for the three- or nine-month periods ended September 30, 2019, or the three- or six-month periods ended June 30, 2019. All other adjustments are of a normal and recurring nature. These unaudited condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2018, which was filed with the Securities and Exchange Commission (“SEC”) on February 27, 2019. The December 31, 2018 condensed consolidated balance sheet data herein was derived from audited financial statements, but does not include all disclosures required by generally accepted accounting principles (“GAAP”) in the United States (“U.S.”). The results of operations for the three-month and nine-month periods ended September 30, 2019 are not necessarily indicative of the results to be expected for the full year. The nine-month period ended September 30, 2018 includes an $11.2 million cumulative adjustment to decrease Retained earnings due to the adoption of accounting guidance that eliminated the deferral of tax effects of intra-entity asset transfers other than inventory.
Effective January 1, 2019, we adopted Accounting Standards Update (“ASU”) No. 2016-02, “Leases” and all related amendments using the modified retrospective method. Adoption of the new standard resulted in the recording of additional net lease assets and lease liabilities of $139.1 million as of January 1, 2019. Comparative periods have not been restated and are reported in accordance with our historical accounting. The standard did not have an impact on our consolidated Net income or cash flows. In addition, as a result of the adoption of this new standard, we have implemented internal controls and system changes to prepare the financial information.
As part of this adoption, we have elected the practical expedient relief package allowed by the new standard, which does not require the reassessment of (1) whether existing contracts contain a lease, (2) the lease classification or (3) unamortized initial direct costs for existing leases; and have elected to apply hindsight to the existing leases. Additionally, we have made accounting policy elections such as exclusion of short-term leases (leases with a term of 12 months or less and which do not include a purchase option that we are reasonably certain to exercise) from the balance sheet presentation, use of portfolio approach in determination of discount rate and accounting for non-lease components in a contract as part of a single lease component for all asset classes.
See Note 2, “Leases” and Note 17, “Recently Issued Accounting Pronouncements,” for additional information. In addition, see below for a description of our updated lease accounting policy.
Leases
We determine if an arrangement is a lease at inception. Right-of-use (“ROU”) assets represent our right to use an underlying asset for the lease term and lease liabilities represent our obligation to make lease payments arising from the lease. Operating lease ROU assets and liabilities are recognized at commencement date based on the present value of lease payments over the lease term. As an implicit rate for most of our leases is not determinable, we use our incremental borrowing rate based on the information available at commencement date in determining the present value of lease payments. The lease payments for the initial measurement of lease ROU assets and lease liabilities include fixed and variable payments based on an index or a rate. Variable lease payments that are not index or rate based are recorded as expenses when incurred. Our variable lease payments typically include real estate taxes, insurance costs and common-area maintenance. The operating lease ROU asset also includes any lease payments made, net of lease incentives. The lease term is the non-cancelable period of the lease, including any options to extend, purchase or terminate the lease when it is reasonably certain that we will exercise that option. We amortize the operating lease ROU assets on a straight-line basis over the period of the lease and the finance lease ROU assets on a straight-line basis over the shorter of their estimated useful lives or the lease terms. Leases with an initial term of 12 months or less are not recorded on the balance sheet, and we recognize lease expense for these leases on a straight-line basis over the lease term.


8
Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

NOTE 2—Leases:
We lease certain office space, buildings, transportation and equipment in various countries. The initial lease terms generally range from 1 to 30 years for real estate leases, and from 2 to 15 years for non-real estate leases. Leases with an initial term of 12 months or less are not recorded on the balance sheet, and we recognize lease expense for these leases on a straight-line basis over the lease term.
Many leases include options to terminate or renew, with renewal terms that can extend the lease term from 1 to 50 years or more. The exercise of lease renewal options is at our sole discretion. Certain leases also include options to purchase the leased property. The depreciable life of assets and leasehold improvements are limited by the expected lease term, unless there is a transfer of title or purchase option reasonably certain of exercise. Our lease agreements do not contain any material residual value guarantees or material restrictive covenants.
The following table provides details of our lease contracts for the three-month and nine-month periods ended September 30, 2019 (in thousands):
 
Three Months Ended September 30, 2019
 
Nine Months Ended September 30, 2019
Operating lease cost
$
7,939

 
$
25,741

Finance lease cost:
 
 
 
Amortization of right of use assets
157

 
471

Interest on lease liabilities
31

 
96

Total finance lease cost
188

 
567

 
 
 
 
Short-term lease cost
2,587

 
6,422

Variable lease cost
1,541

 
4,059

Total lease cost
$
12,255

 
$
36,789

Supplemental cash flow information related to our lease contracts for the nine months ended September 30, 2019 is as follows (in thousands):
 
Nine Months Ended
 
September 30, 2019
Cash paid for amounts included in the measurement of lease liabilities:
 
Operating cash flows from operating leases
$
22,486

Operating cash flows from finance leases
96

Financing cash flows from finance leases
509

Right-of-use assets obtained in exchange for lease obligations:
 
Operating leases
21,578



9
Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

Supplemental balance sheet information related to our lease contracts, including the location on balance sheet, at September 30, 2019 is as follows (in thousands, except as noted):
 
September 30, 2019
Operating leases:
 
Other assets
$
138,222

 
 
Current operating lease liability
24,606

Other noncurrent liabilities
116,590

Total operating lease liabilities
141,196

Finance leases:
 
Net property, plant and equipment
3,793

 
 
Current portion of long-term debt
660

Long-term debt
3,174

Total finance lease liabilities
3,834

Weighted average remaining lease term (in years):
 
Operating leases
11.4

Finance leases
6.0

Weighted average discount rate (%):
 
Operating leases
3.85
%
Finance leases
2.88
%

Maturities of lease liabilities as of September 30, 2019 were as follows (in thousands):
 
Operating Leases
 
Finance Leases
Remainder of 2019
$
7,318

 
$
197

2020
25,982

 
745

2021
14,843

 
657

2022
12,870

 
657

2023
12,349

 
657

Thereafter
105,536

 
1,313

Total lease payments
178,898

 
4,226

Less imputed interest
37,702

 
392

Total
$
141,196

 
$
3,834


As of December 31, 2018, future non-cancelable minimum lease payments were $25.6 million in 2019; $17.9 million in 2020; $12.5 million in 2021; $10.8 million in 2022; $10.1 million in 2023; and $87.1 million thereafter.

NOTE 3—Goodwill and Other Intangibles:

The following table summarizes the changes in goodwill by reportable segment for the nine months ended September 30, 2019 (in thousands):
 
Lithium
 
Bromine Specialties
 
Catalysts
 
All Other
 
Total
Balance at December 31, 2018
$
1,354,779

 
$
20,319

 
$
185,485

 
$
6,586

 
$
1,567,169

   Foreign currency translation adjustments
(25,992
)
 
—

 
(6,936
)
 
—

 
(32,928
)
Balance at September 30, 2019
$
1,328,787

 
$
20,319

 
$
178,549

 
$
6,586

 
$
1,534,241



10
Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)


The following table summarizes the changes in other intangibles and related accumulated amortization for the nine months ended September 30, 2019 (in thousands):
 
Customer Lists and Relationships
 
Trade Names and Trademarks(a)
 
Patents and Technology
 
Other
 
Total
Gross Asset Value
 
 
 
 
 
 
 
 
 
  Balance at December 31, 2018
$
428,372

 
$
18,453

 
$
55,801

 
$
43,708

 
$
546,334

Foreign currency translation adjustments and other
(8,094
)
 
(304
)
 
(1,217
)
 
1,807

 
(7,808
)
  Balance at September 30, 2019
$
420,278

 
$
18,149

 
$
54,584

 
$
45,515

 
$
538,526

Accumulated Amortization
 
 
 
 
 
 
 
 
 
  Balance at December 31, 2018
$
(95,797
)
 
$
(8,176
)
 
$
(35,248
)
 
$
(20,970
)
 
$
(160,191
)
    Amortization
(17,453
)
 
—

 
(1,091
)
 
(1,965
)
 
(20,509
)
Foreign currency translation adjustments and other
1,994

 
104

 
686

 
448

 
3,232

  Balance at September 30, 2019
$
(111,256
)
 
$
(8,072
)
 
$
(35,653
)
 
$
(22,487
)
 
$
(177,468
)
Net Book Value at December 31, 2018
$
332,575

 
$
10,277

 
$
20,553

 
$
22,738

 
$
386,143

Net Book Value at September 30, 2019
$
309,022

 
$
10,077

 
$
18,931

 
$
23,028

 
$
361,058


(a)
Net Book Value includes only indefinite-lived intangible assets.

NOTE 4—Income Taxes:
The effective income tax rate for the three-month and nine-month periods ended September 30, 2019 was 15.5% and 19.2%, respectively, compared to 21.5% and 20.1% for the three-month and nine-month periods ended September 30, 2018, respectively. The Company’s effective income tax rate fluctuates based on, among other factors, its level and location of income. The difference between the U.S. federal statutory income tax rate and our effective income tax rate for the three-month and nine-month periods ended September 30, 2019 and 2018 was impacted by a variety of factors, primarily stemming from the location in which income was earned. For the three-month and nine-month periods ended September 30, 2019, this was mainly attributable to our share of the income of our Jordan Bromine Company Limited (“JBC”) joint venture, a Free Zones company under the laws of the Hashemite Kingdom of Jordan. Income tax expense for the three-month period ended September 30, 2018 included discrete tax expenses of $1.9 million from stock-based compensation arrangements and $1.7 million related to the accounting for the U.S. Tax Cuts and Jobs Act (“TCJA”), partially offset by discrete tax benefits of $2.0 million from foreign accrual to return adjustments and $1.2 million from the release of foreign valuation allowances. Income tax expense for the nine-month period ended September 30, 2018 included discrete tax expenses of $42.0 million for the disposition of the polyolefin catalysts and components portion of our Performance Catalyst Solutions (“PCS”) business (“Polyolefin Catalysts Divestiture”) and $7.3 million for adjustments to foreign valuation allowances, partially offset by discrete tax benefits of $8.0 million for tax accounting method changes, $4.8 million for adjustments related to accounting for the TCJA, $5.4 million from stock-based compensation arrangements and $2.0 million from foreign accrual to return adjustments.


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Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

NOTE 5—Earnings Per Share:
Basic and diluted earnings per share for the three-month and nine-month periods ended September 30, 2019 and 2018 are calculated as follows (in thousands, except per share amounts):
 
Three Months Ended
September 30,
 
Nine Months Ended
September 30,
 
2019
 
2018
 
2019
 
2018
Basic earnings per share
 
 
 
 
 
 
 
Numerator:
 
 
 
 
 
 
 
Net income attributable to Albemarle Corporation
$
155,070

 
$
129,745

 
$
442,837

 
$
563,966

Denominator:
 
 
 
 
 
 
 
Weighted-average common shares for basic earnings per share
105,999

 
107,315

 
105,920

 
109,223

Basic earnings per share
$
1.46

 
$
1.21

 
$
4.18

 
$
5.16

 
 
 
 
 
 
 
 
Diluted earnings per share
 
 
 
 
 
 
 
Numerator:
 
 
 
 
 
 
 
Net income attributable to Albemarle Corporation
$
155,070

 
$
129,745

 
$
442,837

 
$
563,966

Denominator:
 
 
 
 
 
 
 
Weighted-average common shares for basic earnings per share
105,999

 
107,315

 
105,920

 
109,223

Incremental shares under stock compensation plans
300

 
987

 
404

 
1,053

Weighted-average common shares for diluted earnings per share
106,299

 
108,302

 
106,324

 
110,276

Diluted earnings per share
$
1.46

 
$
1.20

 
$
4.16

 
$
5.11


At September 30, 2019, there were 226,872 common stock equivalents not included in the computation of diluted earnings per share because their effect would have been anti-dilutive.
On February 26, 2019, the Company increased the regular quarterly dividend by 10% to $0.3675 per share. On July 24, 2019, the Company declared a cash dividend of $0.3675 per share, which was paid on October 1, 2019 to shareholders of record at the close of business as of September 13, 2019. On October 29, 2019, the Company declared a cash dividend of $0.3675 per share, which is payable on January 2, 2020 to shareholders of record at the close of business as of December 13, 2019.
NOTE 6—Inventories:
The following table provides a breakdown of inventories at September 30, 2019 and December 31, 2018 (in thousands):
 
September 30,
 
December 31,
 
2019
 
2018
Finished goods(a)(b)
$
561,981

 
$
482,355

Raw materials and work in process(c)
173,973

 
158,290

Stores, supplies and other
66,480

 
59,895

Total
$
802,434

 
$
700,540



(a)
Increase primarily due to the build-up of inventory in our Lithium and Catalysts segments to meet higher projected sales during the remainder of 2019.
(b)
Included $96.3 million and $104.3 million at September 30, 2019 and December 31, 2018, respectively, of chemical grade spodumene in our Lithium segment, most of which is converted to battery-grade products either internally or through our tolling agreements. We expect this amount to continue to decrease in the fourth quarter of 2019.
(c)
Included $70.3 million and $71.4 million at September 30, 2019 and December 31, 2018, respectively, of work in process in our Lithium segment.

NOTE 7—Investments:
The Company holds a 49% equity interest in Windfield Holdings Pty. Ltd. (“Windfield”), where the ownership parties share risks and benefits disproportionate to their voting interests. As a result, the Company considers Windfield to be a variable interest entity (“VIE”), however this investment is not consolidated as the Company is not the primary beneficiary. The carrying

12
Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

amount of our 49% equity interest in Windfield, which is our most significant VIE, was $376.5 million and $349.6 million at September 30, 2019 and December 31, 2018, respectively. The Company’s aggregate net investment in all other entities which it considers to be VIEs for which the Company is not the primary beneficiary was $7.7 million and $8.1 million at September 30, 2019 and December 31, 2018, respectively. Our unconsolidated VIEs are reported in Investments on the condensed consolidated balance sheets. The Company does not guarantee debt for, or have other financial support obligations to, these entities, and its maximum exposure to loss in connection with its continuing involvement with these entities is limited to the carrying value of the investments.

NOTE 8—Long-Term Debt:
Long-term debt at September 30, 2019 and December 31, 2018 consisted of the following (in thousands):
 
September 30,
 
December 31,
 
2019
 
2018
1.875% Senior notes, net of unamortized discount and debt issuance costs of $2,040 at September 30, 2019 and $2,841 at December 31, 2018
$
427,941

 
$
444,155

4.15% Senior notes, net of unamortized discount and debt issuance costs of $2,519 at September 30, 2019 and $2,884 at December 31, 2018
422,481

 
422,116

4.50% Senior notes, net of unamortized discount and debt issuance costs of $364 at September 30, 2019 and $589 at December 31, 2018
174,852

 
174,626

5.45% Senior notes, net of unamortized discount and debt issuance costs of $3,889 at September 30, 2019 and $4,004 at December 31, 2018
346,112

 
345,996

Commercial paper notes
539,300

 
306,606

Variable-rate foreign bank loans
7,424

 
7,216

Finance lease obligations
3,834

 
4,495

Total long-term debt
1,921,944

 
1,705,210

Less amounts due within one year
539,960

 
307,294

Long-term debt, less current portion
$
1,381,984

 
$
1,397,916


Current portion of long-term debt at September 30, 2019 consisted primarily of commercial paper notes with a weighted-average interest rate of approximately 2.28% and a weighted-average maturity of 31 days.
The carrying value of our 1.875% Euro-denominated senior notes has been designated as an effective hedge of our net investment in certain foreign subsidiaries where the Euro serves as the functional currency, and gains or losses on the revaluation of these senior notes to our reporting currency are recorded in accumulated other comprehensive loss. During the three-month and nine-month periods ended September 30, 2019, gains of $12.7 million and $13.0 million (net of income taxes), respectively, and during the three-month and nine-month periods ended September 30, 2018, (losses) gains of ($3.6) million and $4.9 million (net of income taxes), respectively, were recorded in accumulated other comprehensive loss in connection with the revaluation of these senior notes to our reporting currency.
On August 14, 2019, the Company entered into a $1.2 billion unsecured credit facility (the “2019 Credit Facility”) with several banks and other financial institutions. The lenders’ commitment to provide loans under the 2019 Credit Facility terminates on August 11, 2020, with each such loan maturing one year after the funding of such loan. The Company can request that the maturity date of loans be extended for an additional period of up to four additional years, but any such extension is subject to the approval of the lenders. Borrowings under the 2019 Credit Facility bear interest at variable rates based on an average London inter-bank offered rate (“LIBOR”) for deposits in the relevant currency plus an applicable margin which ranges from 0.875% to 1.625%, depending on the Company’s credit rating from Standard & Poor’s Financial Services LLC, Moody’s Investor Services, Inc. and Fitch Ratings, Inc. As of the closing of the 2019 Credit Facility, the applicable margin over LIBOR was 1.125%. There were no borrowings outstanding under the 2019 Credit Facility as of September 30, 2019. In October 2019, we borrowed $1.0 billion under this credit facility to fund the cash portion of the October 31, 2019 acquisition of a 60% interest in Mineral Resources Limited’s (“MRL”) Wodgina hard rock lithium mine project (“Wodgina Project”) and for general corporate purposes. See Note 18, “Subsequent Events,” for further details of the acquisition.
In addition, on August 14, 2019, the Company entered into an amendment to its existing credit agreement, dated as of June 21, 2018 to (a) extend the maturity date to August 9, 2024 (subject to the Company’s right to request that such maturity date be further extended for an additional one-year period), and (b) conform certain representations, warranties and covenants to those under the 2019 Credit Facility.

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Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)


NOTE 9—Commitments and Contingencies:
Environmental
We had the following activity in our recorded environmental liabilities for the nine months ended September 30, 2019 (in thousands):
Beginning balance at December 31, 2018
$
49,569

Expenditures
(4,626
)
Accretion of discount
799

Additions and changes in estimates
1,070

Foreign currency translation adjustments and other
(2,007
)
Ending balance at September 30, 2019
44,805

Less amounts reported in Accrued expenses
9,588

Amounts reported in Other noncurrent liabilities
$
35,217


Environmental remediation liabilities included discounted liabilities of $37.0 million and $40.4 million at September 30, 2019 and December 31, 2018, respectively, discounted at rates with a weighted-average of 3.7%, with the undiscounted amount totaling $69.7 million and $74.5 million at September 30, 2019 and December 31, 2018, respectively. For certain locations where the Company is operating groundwater monitoring and/or remediation systems, prior owners or insurers have assumed all or most of the responsibility.
The amounts recorded represent our future remediation and other anticipated environmental liabilities. These liabilities typically arise during the normal course of our operational and environmental management activities or at the time of acquisition of the site, and are based on internal analysis as well as input from outside consultants. As evaluations proceed at each relevant site, changes in risk assessment practices, remediation techniques and regulatory requirements can occur, therefore such liability estimates may be adjusted accordingly. The timing and duration of remediation activities at these sites will be determined when evaluations are completed. Although it is difficult to quantify the potential financial impact of these remediation liabilities, management estimates (based on the latest available information) that there is a reasonable possibility that future environmental remediation costs associated with our past operations, could be an additional $10 million to $30 million before income taxes, in excess of amounts already recorded. The variability of this range is primarily driven by possible environmental remediation activity at a formerly owned site where we indemnify the buyer through a set cutoff date in 2024.
We believe that any sum we may be required to pay in connection with environmental remediation matters in excess of the amounts recorded would likely occur over a period of time and would likely not have a material adverse effect upon our results of operations, financial condition or cash flows on a consolidated annual basis although any such sum could have a material adverse impact on our results of operations, financial condition or cash flows in a particular quarterly reporting period.
Litigation
We are involved from time to time in legal proceedings of types regarded as common in our business, including administrative or judicial proceedings seeking remediation under environmental laws, such as the federal Comprehensive Environmental Response, Compensation and Liability Act, commonly known as CERCLA or Superfund, products liability, breach of contract liability and premises liability litigation. Where appropriate, we may establish financial reserves for such proceedings. We also maintain insurance to mitigate certain of such risks. Costs for legal services are generally expensed as incurred.
As previously reported in 2018, following receipt of information regarding potential improper payments being made by third party sales representatives of our Refining Solutions business, within our Catalysts segment, we promptly retained outside counsel and forensic accountants to investigate potential violations of the Company’s Code of Conduct, the Foreign Corrupt Practices Act and other potentially applicable laws. Based on this internal investigation, we have voluntarily self-reported potential issues relating to the use of third party sales representatives in our Refining Solutions business, within our Catalysts segment, to the U.S. Department of Justice (“DOJ”), the SEC, and the Dutch Public Prosecutor (“DPP”), and are cooperating with the DOJ, the SEC, and DPP in their review of these matters. In connection with our internal investigation, we have implemented, and are continuing to implement, appropriate remedial measures.
At this time, we are unable to predict the duration, scope, result or related costs associated with any investigations by the DOJ, the SEC, or DPP. We are unable to predict what, if any, action may be taken by the DOJ, the SEC, or DPP, or what

14
Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

penalties or remedial actions they may seek to impose. Any determination that our operations or activities are not in compliance with existing laws or regulations could result in the imposition of fines, penalties, disgorgement, equitable relief, or other losses. We do not believe, however, that any fines, penalties, disgorgement, equitable relief or other losses would have a material adverse effect on our financial condition or liquidity.
Indemnities
We are indemnified by third parties in connection with certain matters related to acquired and divested businesses. Although we believe that the financial condition of those parties who may have indemnification obligations to the Company is generally sound, in the event the Company seeks indemnity under any of these agreements or through other means, there can be no assurance that any party who may have obligations to indemnify us will adhere to their obligations and we may have to resort to legal action to enforce our rights under the indemnities.
The Company may be subject to indemnity claims relating to properties or businesses it divested, including properties or businesses of acquired businesses that were divested prior to the completion of the acquisition. In the opinion of management, and based upon information currently available, the ultimate resolution of any indemnification obligations owed to the Company or by the Company is not expected to have a material effect on the Company’s financial condition, results of operations or cash flows. The Company had approximately $26.2 million and $45.3 million at September 30, 2019 and December 31, 2018, respectively, recorded in Other noncurrent liabilities, and $20.6 million recorded in Accrued expenses at September 30, 2019, related to the indemnification of certain income and non-income tax liabilities associated with the Chemetall Surface Treatment entities sold, as well as the proposed settlement of an ongoing audit of a previously disposed business in Germany.
Other
We have contracts with certain of our customers, which serve as guarantees on product delivery and performance according to customer specifications that can cover both shipments on an individual basis as well as blanket coverage of multiple shipments under certain customer supply contracts. The financial coverage provided by these guarantees is typically based on a percentage of net sales value.

NOTE 10—Segment Information:
Our three reportable segments include: (1) Lithium; (2) Bromine Specialties; and (3) Catalysts. Each segment has a dedicated team of sales, research and development, process engineering, manufacturing and sourcing, and business strategy personnel and has full accountability for improving execution through greater asset and market focus, agility and responsiveness. This business structure aligns with the markets and customers we serve through each of the segments. This structure also facilitates the continued standardization of business processes across the organization, and is consistent with the manner in which information is presently used internally by the Company’s chief operating decision maker to evaluate performance and make resource allocation decisions.
Summarized financial information concerning our reportable segments is shown in the following tables. The “All Other” category includes only the fine chemistry services business that does not fit into any of our core businesses.
The Corporate category is not considered to be a segment and includes corporate-related items not allocated to the operating segments. Pension and OPEB service cost (which represents the benefits earned by active employees during the period) and amortization of prior service cost or benefit are allocated to the reportable segments, All Other, and Corporate, whereas the remaining components of pension and OPEB benefits cost or credit (“Non-operating pension and OPEB items”) are included in Corporate. Segment data includes intersegment transfers of raw materials at cost and allocations for certain corporate costs.
The Company’s chief operating decision maker uses adjusted EBITDA (as defined below) to assess the ongoing performance of the Company’s business segments and to allocate resources. The Company defines adjusted EBITDA as earnings before interest, taxes, depreciation and amortization, as adjusted on a consistent basis for certain non-recurring or unusual items in a balanced manner and on a segment basis. These non-recurring or unusual items may include acquisition and integration related costs, gains or losses on sales of businesses, restructuring charges, facility divestiture charges, non-operating pension and OPEB items and other significant non-recurring items. In addition, management uses adjusted EBITDA for business planning purposes and as a significant component in the calculation of performance-based compensation for management and other employees. The Company has reported adjusted EBITDA because management believes it provides transparency to investors and enables period-to-period comparability of financial performance. Adjusted EBITDA is a financial

15
Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

measure that is not required by, or presented in accordance with, U.S. GAAP. Adjusted EBITDA should not be considered as an alternative to Net income attributable to Albemarle Corporation, the most directly comparable financial measure calculated and reported in accordance with U.S. GAAP, or any other financial measure reported in accordance with U.S. GAAP.
 
Three Months Ended
September 30,
 
Nine Months Ended
September 30,
 
2019
 
2018
 
2019
 
2018
 
(In thousands)
Net sales:
 
 
 
 
 
 
 
Lithium
$
330,386

 
$
270,928

 
$
947,030

 
$
886,523

Bromine Specialties
256,267

 
232,616

 
760,752

 
678,769

Catalysts
261,346

 
251,139

 
779,295

 
796,822

All Other
31,748

 
23,065

 
109,786

 
90,978

Corporate
—

 
—

 
—

 
159

Total net sales
$
879,747

 
$
777,748

 
$
2,596,863

 
$
2,453,251

 
 
 
 
 
 
 
 
Adjusted EBITDA:
 
 
 
 
 
 
 
Lithium
$
127,459

 
$
113,629

 
$
384,854

 
$
386,260

Bromine Specialties
88,814

 
78,585

 
248,743

 
217,921

Catalysts
66,944

 
62,602

 
193,890

 
205,534

All Other
10,448

 
3,968

 
28,931

 
7,729

Corporate
(39,314
)
 
(23,702
)
 
(114,300
)
 
(75,082
)
Total adjusted EBITDA
$
254,351

 
$
235,082

 
$
742,118

 
$
742,362



16
Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

See below for a reconciliation of adjusted EBITDA, the non-GAAP financial measure, from Net income attributable to Albemarle Corporation, the most directly comparable financial measure calculated and reported in accordance with U.S. GAAP (in thousands):
 
Lithium
 
Bromine Specialties
 
Catalysts
 
Reportable Segments Total
 
All Other
 
Corporate
 
Consolidated Total
Three months ended September 30, 2019
 
 
 
 
 
 
 
 
 
 
 
 
 
Net income (loss) attributable to Albemarle Corporation
$
102,136

 
$
75,224

 
$
54,345

 
$
231,705

 
$
8,305

 
$
(84,940
)
 
$
155,070

Depreciation and amortization
25,212

 
12,448

 
12,599

 
50,259

 
2,143

 
2,085

 
54,487

Acquisition and integration related costs(a)
—

 
—

 
—

 
—

 
—

 
4,114

 
4,114

Interest and financing expenses
—

 
—

 
—

 
—

 
—

 
11,108

 
11,108

Income tax expense
—

 
—

 
—

 
—

 
—

 
25,341

 
25,341

Non-operating pension and OPEB items
—

 
—

 
—

 
—

 
—

 
(551
)
 
(551
)
Other(b)
111

 
1,142

 
—

 
1,253

 
—

 
3,529

 
4,782

Adjusted EBITDA
$
127,459

 
$
88,814

 
$
66,944

 
$
283,217

 
$
10,448

 
$
(39,314
)
 
$
254,351

Three months ended September 30, 2018
 
 
 
 
 
 
 
 
 
 
 
 
 
Net income (loss) attributable to Albemarle Corporation
$
90,313

 
$
67,967

 
$
50,491

 
$
208,771

 
$
1,978

 
$
(81,004
)
 
$
129,745

Depreciation and amortization
23,370

 
10,618

 
12,111

 
46,099

 
1,990

 
1,618

 
49,707

Restructuring and other(c)
—

 
—

 
—

 
—

 
—

 
3,724

 
3,724

Acquisition and integration related costs(a)
—

 
—

 
—

 
—

 
—

 
4,305

 
4,305

Interest and financing expenses
—

 
—

 
—

 
—

 
—

 
12,988

 
12,988

Income tax expense
—

 
—

 
—

 
—

 
—

 
33,167

 
33,167

Non-operating pension and OPEB items
—

 
—

 
—

 
—

 
—

 
(2,195
)
 
(2,195
)
Legal accrual(d)
—

 
—

 
—

 
—

 
—

 
(1,017
)
 
(1,017
)
Other(e)
(54
)
 
—

 
—

 
(54
)
 
—

 
4,712

 
4,658

Adjusted EBITDA
$
113,629

 
$
78,585

 
$
62,602

 
$
254,816

 
$
3,968

 
$
(23,702
)
 
$
235,082

Nine months ended September 30, 2019
 
 
 
 
 
 
 
 
 
 
 
 
 
Net income (loss) attributable to Albemarle Corporation
$
312,609

 
$
212,320

 
$
156,328

 
$
681,257

 
$
22,629

 
$
(261,049
)
 
$
442,837

Depreciation and amortization
71,669

 
35,281

 
37,562

 
144,512

 
6,302

 
5,904

 
156,718

Acquisition and integration related costs(a)
—

 
—

 
—

 
—

 
—

 
14,388

 
14,388

Gain on sale of property(f)
—

 
—

 
—

 
—

 
—

 
(11,079
)
 
(11,079
)
Interest and financing expenses
—

 
—

 
—

 
—

 
—

 
35,295

 
35,295

Income tax expense
—

 
—

 
—

 
—

 
—

 
93,266

 
93,266

Non-operating pension and OPEB items
—

 
—

 
—

 
—

 
—

 
(1,810
)
 
(1,810
)
Other(b)
576

 
1,142

 
—

 
1,718

 
—

 
10,785

 
12,503

Adjusted EBITDA
$
384,854

 
$
248,743

 
$
193,890

 
$
827,487

 
$
28,931

 
$
(114,300
)
 
$
742,118

Nine months ended September 30, 2018
 
 
 
 
 
 
 
 
 
 
 
 
 
Net income (loss) attributable to Albemarle Corporation
$
315,939

 
$
187,176

 
$
387,038

 
$
890,153

 
$
1,659

 
$
(327,846
)
 
$
563,966

Depreciation and amortization
71,760

 
30,745

 
37,201

 
139,706

 
6,070

 
4,735

 
150,511

Restructuring and other(c)
—

 
—

 
—

 
—

 
—

 
3,724

 
3,724

Gain on sale of business(g)
—

 
—

 
(218,705
)
 
(218,705
)
 
—

 
—

 
(218,705
)
Acquisition and integration related costs(a)
—

 
—

 
—

 
—

 
—

 
13,016

 
13,016

Interest and financing expenses
—

 
—

 
—

 
—

 
—

 
39,834

 
39,834

Income tax expense
—

 
—

 
—

 
—

 
—

 
133,630

 
133,630

Non-operating pension and OPEB items
—

 
—

 
—

 
—

 
—

 
(6,596
)
 
(6,596
)
Legal accrual(d)
—

 
—

 
—

 
—

 
—

 
27,027

 
27,027

Environmental accrual(h)
—

 
—

 
—

 
—

 
—

 
15,597

 
15,597

Albemarle Foundation contribution(i)
—

 
—

 
—

 
—

 
—

 
15,000

 
15,000

Other(e)
(1,439
)
 
—

 
—

 
(1,439
)
 
—

 
6,797

 
5,358

Adjusted EBITDA
$
386,260

 
$
217,921

 
$
205,534

 
$
809,715

 
$
7,729

 
$
(75,082
)
 
$
742,362



17
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ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

(a)
Included acquisition and integration related costs relating to various significant projects. For the three-month and nine-month periods ended September 30, 2019, $4.1 million and $14.4 million was recorded in Selling, general and administrative expenses. For the three-month and nine-month periods ended September 30, 2018, $0.9 million and $2.9 million was recorded in Cost of goods sold, respectively, and $3.4 million and $10.2 million was recorded in Selling, general and administrative expenses, respectively.
(b)
Included amounts for the three months ended September 30, 2019 recorded in:
▪
Cost of goods sold - $0.1 million related to non-routine labor and compensation related costs in Chile that are outside normal compensation arrangements.
▪
Selling, general and administrative expenses - $1.1 million of a write-off of uncollectable accounts receivable from a terminated distributor in the Bromine Specialties segment.
▪
Other (expenses) income, net - $3.1 million of unrecoverable vendor costs outside the operations of the business related to the construction of the future Kemerton production facility, as well as a net loss of $0.4 million primarily resulting from the settlement of legal matters related to previously disposed businesses or recorded in purchase accounting.
Included amounts for the nine months ended September 30, 2019 recorded in:
▪
Cost of goods sold - $0.6 million related to non-routine labor and compensation related costs in Chile that are outside normal compensation arrangements.
▪
Selling, general and administrative expenses - Expected severance payments to be made in 2019 as part of a business reorganization plan of $5.3 million, with the unpaid balance recorded in Accrued expenses as of September 30, 2019, $1.0 million of shortfall contributions for our multiemployer plan financial improvement plan, and $1.1 million of a write-off of uncollectable accounts receivable from a terminated distributor in the Bromine Specialties segment.
▪
Other (expenses) income, net - $3.1 million of unrecoverable vendor costs outside the operations of the business related to the construction of the future Kemerton production facility, a net loss of $0.4 million primarily resulting from the settlement of legal matters related to previously disposed businesses or recorded in purchase accounting, and $0.9 million of a net loss primarily resulting from the revision of indemnifications and other liabilities related to previously disposed businesses.
(c)
Severance payments as part of a business reorganization plan, recorded in Selling, general and administrative expenses.
(d)
Included in Other (expenses) income, net for the three-month and nine-month periods ended September 30, 2018 is a gain of $1.4 million and an expense of $16.2 million, respectively, resulting from a jury rendered verdict against Albemarle related to certain business concluded under a 2014 sales agreement for products that Albemarle no longer manufactures and expenses of $0.4 million and $10.8 million, respectively, resulting from a settlement of a legal matter related to guarantees from a previously disposed business.
(e)
Included amounts for the three months ended September 30, 2018 recorded in:
▪
Cost of goods sold - $3.8 million for the write-off of fixed assets related to a major capacity expansion in our Jordanian joint venture.
▪
Selling, general and administrative expenses - $0.1 million gain related to a refund from Chilean authorities due to an overpayment made in a prior year, partially offset by a $1.2 million contribution, using a portion of the proceeds received from the Polyolefin Catalysts Divestiture, to schools in the state of Louisiana for qualified tuition purposes. This contribution is significant in size and is intended to provide long-term benefits for families in the Louisiana community.
▪
Other (expenses) income, net - $0.2 million gain related to the revision of previously recorded expenses of disposed businesses.
Included amounts for the nine months ended September 30, 2018 recorded in:
▪
Cost of goods sold - $4.9 million for the write-off of fixed assets related to a major capacity expansion in our Jordanian joint venture.
▪
Selling, general and administrative expenses - $1.5 million gain related to a refund from Chilean authorities due to an overpayment made in a prior year, partially offset by a $1.2 million contribution, using a portion of the proceeds received from the Polyolefin Catalysts Divestiture, to schools in the state of Louisiana for qualified tuition purposes. This contribution is significant in size and is intended to provide long-term benefits for families in the Louisiana community.
▪
Other (expenses) income, net - $0.8 million related to the revision of previously recorded expenses of disposed businesses.
(f)
Gain recorded in Other (expenses) income, net related to the sale of land in Pasadena, Texas not used as part of our operations.
(g)
Gain related to the sale of the Polyolefin Catalysts Divestiture, which closed in the second quarter of 2018.
(h)
Increase in environmental reserve to indemnify the buyer of a formerly owned site recorded in Other (expenses) income, net. As defined in the agreement of sale, this indemnification has a set cutoff date in 2024, at which point we will no longer be required to provide financial coverage.
(i)
Included in Selling, general and administrative expenses is a charitable contribution, using a portion of the proceeds received from the Polyolefin Catalysts Divestiture, to the Albemarle Foundation, a non-profit organization that sponsors grants, health and social projects, educational initiatives, disaster relief, matching gift programs, scholarships and other charitable initiatives in locations where our employees live and operate. This contribution is in addition to the ordinary annual contribution made to the Albemarle Foundation by the Company, and is significant in size and nature in that it is intended to provide more long-term benefits in the communities where we live and operate.


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Table of Contents
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

NOTE 11—Pension Plans and Other Postretirement Benefits:
The components of pension and postretirement benefits cost (credit) for the three-month and nine-month periods ended September 30, 2019 and 2018 were as follows (in thousands):
 
Three Months Ended
September 30,
 
Nine Months Ended
September 30,
 
2019
 
2018
 
2019
 
2018
Pension Benefits Cost (Credit):
 
 
 
 
 
 
 
Service cost
$
1,118

 
$
1,238

 
$
3,371

 
$
3,765

Interest cost
8,314

 
7,967

 
24,854

 
24,010

Expected return on assets
(9,414
)
 
(10,703
)
 
(28,311
)
 
(32,227
)
Amortization of prior service benefit
(5
)
 
25

 
7

 
71

Total net pension benefits cost (credit)
$
13

 
$
(1,473
)
 
$
(79
)
 
$
(4,381
)
Postretirement Benefits Cost (Credit):
 
 
 
 
 
 
 
Service cost
$
24

 
$
29

 
$
73

 
$
88

Interest cost
549

 
542

 
1,647

 
1,626

Expected return on assets
—

 
(1
)
 
—

 
(5
)
Amortization of prior service benefit
—

 
(12
)
 
—

 
(36
)
Total net postretirement benefits cost
$
573

 
$
558

 
$
1,720

 
$
1,673

Total net pension and postretirement benefits cost (credit)
$
586

 
$
(915
)
 
$
1,641

 
$
(2,708
)

All components of net benefit cost (credit), other than service cost, are included in Other (expenses) income, net on the consolidated statements of income.
During the three-month and nine-month periods ended September 30, 2019, we made contributions of $2.1 million and $8.6 million, respectively, to our qualified and nonqualified pension plans. During the three-month and nine-month periods ended September 30, 2018, we made contributions of $3.1 million and $9.0 million, respectively, to our qualified and nonqualified pension plans.
We paid $0.8 million and $2.1 million in premiums to the U.S. postretirement benefit plan during the three-month and nine-month periods ended September 30, 2019, respectively. During the three-month and nine-month periods ended September 30, 2018, we paid $0.8 million and $2.0 million, respectively, in premiums to the U.S. postretirement benefit plan.

NOTE 12—Fair Value of Financial Instruments:
In assessing the fair value of financial instruments, we use methods and assumptions that are based on market conditions and other risk factors existing at the time of assessment. Fair value information for our financial instruments is as follows:
Long-Term Debt—the fair values of our senior notes are estimated using Level 1 inputs and account for the difference between the recorded amount and fair value of our long-term debt. The carrying value of our remaining long-term debt reported in the accompanying condensed consolidated balance sheets approximates fair value as substantially all of such debt bears interest based on prevailing variable market rates currently available in the countries in which we have borrowings.
 
September 30, 2019
 
December 31, 2018
 
Recorded
Amount
 
Fair Value
 
Recorded
Amount
 
Fair Value
 
(In thousands)
Long-term debt
$
1,927,898

 
$
2,019,115

 
$
1,712,003

 
$
1,731,271


Foreign Currency Forward Contracts—we enter into foreign currency forward contracts in connection with our risk management strategies in an attempt to minimize the financial impact of changes in foreign currency exchange rates. These derivative financial instruments are used to manage risk and are not used for trading or other speculative purposes. The fair values of our foreign currency forward contracts are estimated based on current settlement values. At September 30, 2019 and December 31, 2018, we had outstanding foreign currency forward contracts with notional values totaling $1.11 billion and $626.5 million, respectively, hedging our exposure to various currencies including the Euro, Chinese Renminbi, Chilean Peso

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ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

and Australian Dollar. Our foreign currency forward contracts outstanding at September 30, 2019 and December 31, 2018 have not been designated as hedging instruments under ASC 815, Derivatives and Hedging. The following table summarizes the fair value of our foreign currency forward contracts included in the condensed consolidated balance sheets as of September 30, 2019 and December 31, 2018 (in thousands):
 
September 30,
 
December 31,
 
2019
 
2018
Foreign currency forward contracts - Other accounts receivable
$
—

 
$
431

Foreign currency forward contracts - Accrued expenses
$
1,697

 
$
—


Gains and losses on foreign currency forward contracts are recognized currently in Other (expenses) income, net; further, fluctuations in the value of these contracts are generally expected to be offset by changes in the value of the underlying exposures being hedged, which are also reported in Other (expenses) income, net. The following table summarizes these net losses recognized in our consolidated statements of income during the three-month and nine-month periods ended September 30, 2019 and 2018 (in thousands):
 
Three Months Ended
September 30,
 
Nine Months Ended
September 30,
 
2019
 
2018
 
2019
 
2018
Foreign currency forward contracts losses
$
(19,331
)
 
$
(203
)
 
$
(27,647
)
 
$
(13,034
)

In addition, for the nine-month periods ended September 30, 2019 and 2018, we recorded losses of $27.6 million and $13.0 million, respectively, related to the change in the fair value of our foreign currency forward contracts, and net cash settlements of $25.5 million and $18.1 million, respectively, in Other, net, in our condensed consolidated statements of cash flows.
The counterparties to our foreign currency forward contracts are major financial institutions with which we generally have other financial relationships. We are exposed to credit loss in the event of nonperformance by these counterparties. However, we do not anticipate nonperformance by the counterparties.

NOTE 13—Fair Value Measurement:
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (exit price). The inputs used to measure fair value are classified into the following hierarchy:
Level 1
Unadjusted quoted prices in active markets for identical assets or liabilities
 
 
Level 2
Unadjusted quoted prices in active markets for similar assets or liabilities, or unadjusted quoted prices for identical or similar assets or liabilities in markets that are not active, or inputs other than quoted prices that are observable for the asset or liability
 
 
Level 3
Unobservable inputs for the asset or liability

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ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

We endeavor to utilize the best available information in measuring fair value. Financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The following tables set forth our financial assets and liabilities that were accounted for at fair value on a recurring basis as of September 30, 2019 and December 31, 2018 (in thousands):
 
September 30, 2019
 
Quoted Prices in Active Markets for Identical Items (Level 1)
 
Quoted Prices in Active Markets for Similar Items (Level 2)
 
Unobservable Inputs (Level 3)
 
 
 
 
Assets:
 
 
 
 
 
 
 
Investments under executive deferred compensation plan(a)
$
26,816

 
$
26,816

 
$
—

 
$
—

Private equity securities(b)
$
29

 
$
29

 
$
—

 
$
—

Private equity securities measured at net asset value(b)(c)
$
4,884

 
$
—

 
$
—

 
$
—

 
 
 
 
 
 
 
 
Liabilities:
 
 
 
 
 
 
 
Obligations under executive deferred compensation plan(a)
$
26,816

 
$
26,816

 
$
—

 
$
—

Foreign currency forward contracts(d)
$
1,697

 
$
—

 
$
1,697

 
$
—

 
December 31, 2018
 
Quoted Prices in Active Markets for Identical Items (Level 1)
 
Quoted Prices in Active Markets for Similar Items (Level 2)
 
Unobservable Inputs (Level 3)
 
 
 
 
Assets:
 
 
 
 
 
 
 
Investments under executive deferred compensation plan(a)
$
26,292

 
$
26,292

 
$
—

 
$
—

Private equity securities(b)
$
26

 
$
26

 
$
—

 
$
—

Private equity securities measured at net asset value(b)(c)
$
7,195

 
$
—

 
$
—

 
$
—

Foreign currency forward contracts(d)
$
431

 
$
—

 
$
431

 
$
—

 
 
 
 
 
 
 
 
Liabilities:
 
 
 
 
 
 
 
Obligations under executive deferred compensation plan(a)
$
26,292

 
$
26,292

 
$
—

 
$
—


(a)
We maintain an Executive Deferred Compensation Plan (“EDCP”) that was adopted in 2001 and subsequently amended. The purpose of the EDCP is to provide current tax planning opportunities as well as supplemental funds upon the retirement or death of certain of our employees. The EDCP is intended to aid in attracting and retaining employees of exceptional ability by providing them with these benefits. We also maintain a Benefit Protection Trust (the “Trust”) that was created to provide a source of funds to assist in meeting the obligations of the EDCP, subject to the claims of our creditors in the event of our insolvency. Assets of the Trust are consolidated in accordance with authoritative guidance. The assets of the Trust consist primarily of mutual fund investments (which are accounted for as trading securities and are marked-to-market on a monthly basis through the consolidated statements of income) and cash and cash equivalents. As such, these assets and obligations are classified within Level 1.
(b)
Primarily consists of private equity securities classified as available-for-sale and are reported in Investments in the condensed consolidated balance sheets. The changes in fair value are reported in Other (expenses) income, net, in our consolidated statements of income.
(c)
Holdings in certain private equity securities are measured at fair value using the net asset value per share (or its equivalent) practical expedient and have not been categorized in the fair value hierarchy.
(d)
As a result of our global operating and financing activities, we are exposed to market risks from changes in foreign currency exchange rates, which may adversely affect our operating results and financial position. When deemed appropriate, we minimize our risks from foreign currency exchange rate fluctuations through the use of foreign currency forward contracts. Unless otherwise noted, these derivative financial instruments are not designated as hedging instruments under ASC 815, Derivatives and Hedging. The foreign currency forward contracts are valued using broker quotations or market transactions in either the listed or over-the-counter markets. As such, these derivative instruments are classified within Level 2.


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ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

NOTE 14—Accumulated Other Comprehensive (Loss) Income:
The components and activity in Accumulated other comprehensive (loss) income (net of deferred income taxes) consisted of the following during the periods indicated below (in thousands):
 
Foreign Currency Translation
 
Pension and Postretirement Benefits(a)
 
Net Investment Hedge
 
Interest Rate Swap(b)
 
Total
Three months ended September 30, 2019
 
 
 
 
 
 
 
 
 
Balance at June 30, 2019
$
(407,937
)
 
$
(146
)
 
$
72,604

 
$
(13,932
)
 
$
(349,411
)
Other comprehensive (loss) income before reclassifications
(100,069
)
 
—

 
12,745

 
—

 
(87,324
)
Amounts reclassified from accumulated other comprehensive loss
—

 
(5
)
 
—

 
641

 
636

Other comprehensive (loss) income, net of tax
(100,069
)
 
(5
)
 
12,745

 
641

 
(86,688
)
Other comprehensive loss attributable to noncontrolling interests
122

 
—

 
—

 
—

 
122

Balance at September 30, 2019
$
(507,884
)
 
$
(151
)
 
$
85,349

 
$
(13,291
)
 
$
(435,977
)
Three months ended September 30, 2018
 
 
 
 
 
 
 
 
 
Balance at June 30, 2018
$
(343,458
)
 
$
5

 
$
55,119

 
$
(13,345
)
 
$
(301,679
)
Other comprehensive loss before reclassifications
(9,549
)
 
—

 
(3,621
)
 
—

 
(13,170
)
Amounts reclassified from accumulated other comprehensive loss
—

 
11

 
—

 
642

 
653

Other comprehensive (loss) income, net of tax
(9,549
)
 
11

 
(3,621
)
 
642

 
(12,517
)
Other comprehensive loss attributable to noncontrolling interests
5

 
—

 
—

 
—

 
5

Balance at September 30, 2018
$
(353,002
)
 
$
16

 
$
51,498

 
$
(12,703
)
 
$
(314,191
)
Nine months ended September 30, 2019
 
 
 
 
 
 
 
 
 
Balance at December 31, 2018
$
(407,646
)
 
$
(159
)
 
$
72,337

 
$
(15,214
)
 
$
(350,682
)
Other comprehensive (loss) income before reclassifications
(100,380
)
 
—

 
13,012

 
—

 
(87,368
)
Amounts reclassified from accumulated other comprehensive loss
—

 
8

 
—

 
1,923

 
1,931

Other comprehensive (loss) income, net of tax
(100,380
)
 
8

 
13,012

 
1,923

 
(85,437
)
Other comprehensive loss attributable to noncontrolling interests
142

 
—

 
—

 
—

 
142

Balance at September 30, 2019
$
(507,884
)
 
$
(151
)
 
$
85,349

 
$
(13,291
)
 
$
(435,977
)
Nine months ended September 30, 2018
 
 
 
 
 
 
 
 
 
Balance at December 31, 2017
$
(257,569
)
 
$
(21
)
 
$
46,551

 
$
(14,629
)
 
$
(225,668
)
Other comprehensive (loss) income before reclassifications
(95,515
)
 
—

 
4,947

 
—

 
(90,568
)
Amounts reclassified from accumulated other comprehensive loss
—

 
37

 
—

 
1,926

 
1,963

Other comprehensive (loss) income, net of tax
(95,515
)
 
37

 
4,947

 
1,926

 
(88,605
)
Other comprehensive loss attributable to noncontrolling interests
82

 
—

 
—

 
—

 
82

Balance at September 30, 2018
$
(353,002
)
 
$
16

 
$
51,498

 
$
(12,703
)
 
$
(314,191
)


(a)
The pre-tax portion of amounts reclassified from accumulated other comprehensive loss consists of amortization of prior service benefit, which is a component of pension and postretirement benefits cost (credit). See Note 11, “Pension Plans and Other Postretirement Benefits,” for additional information.
(b)
The pre-tax portion of amounts reclassified from accumulated other comprehensive loss is included in interest expense.

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ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

The amount of income tax (expense) benefit allocated to each component of Other comprehensive (loss) income for the three-month and nine-month periods ended September 30, 2019 and 2018 is provided in the following tables (in thousands):
 
Three Months Ended September 30,
 
2019
 
2018
 
Foreign Currency Translation
 
Pension and Postretirement Benefits
 
Net Investment Hedge
 
Interest Rate Swap
 
Foreign Currency Translation
 
Pension and Postretirement Benefits
 
Net Investment Hedge
 
Interest Rate Swap
Other comprehensive (loss) income, before tax
$
(100,069
)
 
$
(3
)
 
$
16,584

 
$
834

 
$
(9,550
)
 
$
13

 
$
(4,704
)
 
$
834

Income tax (expense) benefit
—

 
(2
)
 
(3,839
)
 
(193
)
 
1

 
(2
)
 
1,083

 
(192
)
Other comprehensive (loss) income, net of tax
$
(100,069
)
 
$
(5
)
 
$
12,745

 
$
641

 
$
(9,549
)
 
$
11

 
$
(3,621
)
 
$
642

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Nine Months Ended September 30,
 
2019
 
2018
 
Foreign Currency Translation
 
Pension and Postretirement Benefits
 
Net Investment Hedge
 
Interest Rate Swap
 
Foreign Currency Translation
 
Pension and Postretirement Benefits
 
Net Investment Hedge
 
Interest Rate Swap
Other comprehensive (loss) income, before tax
$
(100,379
)
 
$
10

 
$
16,932

 
$
2,502

 
$
(95,517
)
 
$
43

 
$
6,426

 
$
2,502

Income tax (expense) benefit
(1
)
 
(2
)
 
(3,920
)
 
(579
)
 
2

 
(6
)
 
(1,479
)
 
(576
)
Other comprehensive (loss) income, net of tax
$
(100,380
)
 
$
8

 
$
13,012

 
$
1,923

 
$
(95,515
)
 
$
37

 
$
4,947

 
$
1,926



NOTE 15—Related Party Transactions:
Our consolidated statements of income include sales to and purchases from unconsolidated affiliates in the ordinary course of business as follows (in thousands):
 
Three Months Ended
September 30,
 
Nine Months Ended
September 30,
 
2019
 
2018
 
2019
 
2018
Sales to unconsolidated affiliates
$
4,465

 
$
4,970

 
$
14,128

 
$
20,608

Purchases from unconsolidated affiliates(a)
$
41,304

 
$
60,136

 
$
160,420

 
$
186,111


(a)
Purchases from unconsolidated affiliates primarily relate to purchases from our Windfield joint venture.

Our condensed consolidated balance sheets include accounts receivable due from and payable to unconsolidated affiliates in the ordinary course of business as follows (in thousands):
 
September 30, 2019
 
December 31, 2018
Receivables from unconsolidated affiliates
$
3,041

 
$
14,348

Payables to unconsolidated affiliates
$
32,699

 
$
68,357



NOTE 16—Supplemental Cash Flow Information:
Supplemental information related to the condensed consolidated statements of cash flows is as follows (in thousands):
 
Nine Months Ended
September 30,
 
2019
 
2018
Supplemental non-cash disclosure related to investing activities:
 
 
 
Capital expenditures included in Accounts payable
$
174,510

 
$
107,385


Other, net within Cash flows from operating activities on the condensed consolidated statements of cash flows for the nine months ended September 30, 2019 and 2018 included $14.4 million and $33.9 million, respectively, representing the

23
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ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

reclassification of the current portion of the one-time transition tax resulting from the enactment of the TCJA, from Other noncurrent liabilities to Income taxes payable within current liabilities.

NOTE 17—Recently Issued Accounting Pronouncements:
In February 2016, the Financial Accounting Standards Board (“FASB”) issued accounting guidance that requires assets and liabilities arising from leases to be recorded on the balance sheet. Additional disclosures are required regarding the amount, timing, and uncertainty of cash flows from leases. In July 2018, the FASB issued an amendment which would allow entities to initially apply this new standard at the adoption date and recognize a cumulative effect adjustment to the opening balance of Retained earnings. The Company adopted this standard on January 1, 2019 using this transition method. See Note 1, “Basis of Presentation,” for further details.
In June 2016, the FASB issued accounting guidance that, among other things, changes the way entities recognize impairment of financial assets by requiring immediate recognition of estimated credit losses expected to occur over the remaining life of the financial asset. Additional disclosures are required regarding an entity’s assumptions, models and methods for estimating the expected credit loss. This guidance will be effective for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years, and is to be applied using a modified retrospective approach. Early adoption is permitted. We currently do not expect this guidance to have a significant impact on our financial statements.
In January 2017, the FASB issued accounting guidance to simplify the accounting for goodwill impairment. The guidance removes Step 2 of the goodwill impairment test, which requires a reporting unit to calculate the implied fair value of goodwill by assigning the fair value of a reporting unit to all of its assets and liabilities as if that reporting unit has been acquired in a business combination. A goodwill impairment will now be the amount by which a reporting unit’s carrying value exceeds its fair value, not to exceed the carrying amount of goodwill. All other goodwill impairment guidance will remain unchanged. Entities will continue to have the option to perform a qualitative assessment to determine if a quantitative impairment test is necessary. This guidance will be effective for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years, and is to be applied on a prospective basis. Early adoption is permitted for goodwill impairment tests performed after January 1, 2017. We expect to adopt this guidance on January 1, 2020 and do not expect it to have a significant impact on our financial statements.
In August 2017, the FASB issued accounting guidance to better align an entity’s risk management activities with hedge accounting, simplify the application of hedge accounting, and increase transparency as to the scope and results of hedging programs. This guidance will make more financial and nonfinancial hedging strategies eligible for hedge accounting. It also amends the presentation and disclosure requirements and changes how companies assess effectiveness. In October 2018, the FASB issued additional guidance that permits the use of the Overnight Index Swap Rate based on the Secured Overnight Financing Rate as a U.S. benchmark interest rate for hedge accounting purposes under ASC 815, Derivatives and Hedging. These new requirements became effective on January 1, 2019 and did not have a significant impact on our financial statements.
In August 2018, the FASB issued accounting guidance that requires implementation costs incurred in a cloud computing arrangement that is a service contract to be capitalized. Entities will be required to recognize the capitalized implementation costs to expense over the noncancellable term of the cloud computing arrangement. As allowed by its provisions, we early-adopted this new guidance in the first quarter of 2019. The adoption of this new guidance did not have a significant impact on our financial statements.

NOTE 18—Subsequent Events:
On October 31, 2019, we completed the previously announced acquisition of a 60% interest in MRL’s Wodgina Project for a total purchase price of $1.3 billion. The purchase price is comprised of $820 million in cash, subject to certain adjustments, and the transfer of 40% interest in certain lithium hydroxide conversion assets being built by Albemarle in Kemerton, Western Australia, expected to be valued at $480 million. The cash consideration was funded by the 2019 Credit Facility entered into on August 14, 2019, see Note 8, “Long-Term Debt,” for further details.
In addition, we have formed an unincorporated joint venture with MRL for the exploration, development, mining, processing and production of lithium and other minerals (other than iron ore and tantalum) from the Wodgina Project and for the operation of the Kemerton assets. We are entitled to a pro rata portion of 60% of all minerals (other than iron ore and tantalum) recovered from the tenements and produced by the joint venture. These undivided interests will be accounted for using the proportionate consolidation method and our proportionate share of assets, liabilities, revenue and expenses will be included in the appropriate classifications in the condensed consolidated financial statements. As part of this acquisition,

24
ALBEMARLE CORPORATION AND SUBSIDIARIES
Notes to the Condensed Consolidated Financial Statements
(Unaudited)

MARBL Lithium Operations Pty. Ltd. (the “Manager”), an incorporated joint venture, has been formed to manage the Wodgina Project. We will consolidate our 60% ownership interest in the Manager in our condensed consolidated financial statements.
Included in Selling, general and administrative expenses on our consolidated statements of income for the three and nine months ended September 30, 2019 is $1.3 million and $4.4 million, respectively, of costs directly related to this acquisition.
As this acquisition was completed on October 31, 2019, the preliminary fair value of the assets acquired and liabilities assumed are not recorded in the Company’s consolidated balance sheet as of September 30, 2019. The preliminary fair value of these assets and liabilities, as well as the results of operations of the formed joint venture, will be recorded in the fourth quarter of 2019. The Company has not completed the detailed valuation work necessary to arrive at the required estimates of the fair value of the assets acquired and liabilities assumed and the related allocation of purchase price.
Item 2.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Forward-looking Statements
Some of the information presented in this Quarterly Report on Form 10-Q, including the documents incorporated by reference, may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements are based on our current expectations, which are in turn based on assumptions that we believe are reasonable based on our current knowledge of our business and operations. We have used words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “should,” “would,” “will” and variations of such words and similar expressions to identify such forward-looking statements.
These forward-looking statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions, which are difficult to predict and many of which are beyond our control. There can be no assurance that our actual results will not differ materially from the results and expectations expressed or implied in the forward-looking statements. Factors that could cause actual results to differ materially from the outlook expressed or implied in any forward-looking statement include, without limitation:
•
changes in economic and business conditions;
•
changes in financial and operating performance of our major customers and industries and markets served by us;
•
the timing of orders received from customers;
•
the gain or loss of significant customers;
•
competition from other manufacturers;
•
changes in the demand for our products or the end-user markets in which our products are sold;
•
limitations or prohibitions on the manufacture and sale of our products;
•
availability of raw materials;
•
increases in the cost of raw materials and energy, and our ability to pass through such increases to our customers;
•
changes in our markets in general;
•
fluctuations in foreign currencies;
•
changes in laws and government regulation impacting our operations or our products;
•
the occurrence of regulatory actions, proceedings, claims or litigation;
•
the occurrence of cyber-security breaches, terrorist attacks, industrial accidents, natural disasters or climate change;
•
hazards associated with chemicals manufacturing;
•
the inability to maintain current levels of product or premises liability insurance or the denial of such coverage;
•
political unrest affecting the global economy, including adverse effects from terrorism or hostilities;
•
political instability affecting our manufacturing operations or joint ventures;
•
changes in accounting standards;
•
the inability to achieve results from our global manufacturing cost reduction initiatives as well as our ongoing continuous improvement and rationalization programs;
•
changes in the jurisdictional mix of our earnings and changes in tax laws and rates;
•
changes in monetary policies, inflation or interest rates that may impact our ability to raise capital or increase our cost of funds, impact the performance of our pension fund investments and increase our pension expense and funding obligations;

25

•
volatility and uncertainties in the debt and equity markets;
•
technology or intellectual property infringement, including through cyber-security breaches, and other innovation risks;
•
decisions we may make in the future;
•
the ability to successfully execute, operate and integrate acquisitions and divestitures; and
•
the other factors detailed from time to time in the reports we file with the Securities and Exchange Commission (“SEC”).
We assume no obligation to provide revisions to any forward-looking statements should circumstances change, except as otherwise required by securities and other applicable laws. The following discussion should be read together with our condensed consolidated financial statements and related notes included in this Quarterly Report on Form 10-Q.
The following is a discussion and analysis of our results of operations for the three-month and nine-month periods ended September 30, 2019 and 2018. A discussion of our consolidated financial condition and sources of additional capital is included under a separate heading “Financial Condition and Liquidity.”
Overview
We are a leading global developer, manufacturer and marketer of highly-engineered specialty chemicals that are designed to meet our customers’ needs across a diverse range of end markets. The end markets we serve include energy storage, petroleum refining, consumer electronics, construction, automotive, lubricants, pharmaceuticals, crop protection and custom chemistry services. We believe that our commercial and geographic diversity, technical expertise, innovative capability, flexible, low-cost global manufacturing base, experienced management team and strategic focus on our core base technologies will enable us to maintain leading market positions in those areas of the specialty chemicals industry in which we operate.
Secular trends favorably impacting demand within the end markets that we serve combined with our diverse product portfolio, broad geographic presence and customer-focused solutions will continue to be key drivers of our future earnings growth. We continue to build upon our existing green solutions portfolio and our ongoing mission to provide innovative, yet commercially viable, clean energy products and services to the marketplace. We believe our disciplined cost reduction efforts and ongoing productivity improvements, among other factors, position us well to take advantage of strengthening economic conditions as they occur, while softening the negative impact of the current challenging global economic environment.
Third Quarter 2019
During the third quarter of 2019:
•
Our board of directors declared a quarterly dividend of $0.3675 per share on July 24, 2019, which was paid on October 1, 2019 to shareholders of record at the close of business as of September 13, 2019.
•
Our net sales for the quarter were $879.7 million, up 13% from net sales of $777.7 million in the third quarter of 2018.
•
Diluted earnings per share were $1.46, an increase from third quarter 2018 results of $1.20 per diluted share.
•
We announced a revised agreement with Mineral Resources Limited (“MRL”) to acquire 60% ownership of MRL’s Wodgina hard rock lithium mine in Western Australia (“Wodgina Project”) and form a 60%-40% joint venture with MRL to operate the mine and battery grade lithium hydroxide production facilities. Albemarle will pay $820 million in cash and transfer a 40% interest in certain lithium hydroxide conversion assets being built in Kemerton, Western Australia. This acquisition and joint venture transaction was completed on October 31, 2019.
•
On August 14, 2019, the Company entered into a $1.2 billion unsecured credit facility with several banks and other financial institutions. Borrowings under this facility bear interest at variable rates based on an average London inter-bank offered rate (“LIBOR”), plus an applicable margin that depends on certain credit ratings of the Company. As of the closing, the applicable margin over LIBOR was 1.125%. There were no borrowings outstanding as of September 30, 2019. In October 2019, we borrowed $1.0 billion under this credit facility to fund the cash portion of October 31, 2019 acquisition of a 60% interest in the Wodgina Project.

Outlook
The current global business environment presents a diverse set of opportunities and challenges in the markets we serve. In particular, the market demand for lithium battery and energy storage continues to accelerate, providing the opportunity to continue to develop high quality and innovative products while managing the high cost of expanding capacity. The other markets we serve continue to present various opportunities for value and growth as we have positioned ourselves to manage the impact on our business of changing global conditions, such as slow and uneven global growth, currency exchange volatility, crude oil price fluctuation, a dynamic pricing environment, an ever-changing landscape in electronics, the continuous need for

26

cutting edge catalysts and technology by our refinery customers and increasingly stringent environmental standards. Amidst these dynamics, we believe our business fundamentals are sound and that we are strategically well-positioned as we remain focused on increasing sales volume, optimizing and improving the value of our portfolio primarily through pricing and product development, managing costs and delivering value to our customers and shareholders. We believe that our businesses remain well-positioned to capitalize on new business opportunities and long-term trends driving growth within our end markets and to respond quickly to changes in economic conditions in these markets.
Lithium: We expect strong year-over-year growth for the remainder of 2019 in Lithium, led by strong demand in battery-grade applications and increased conversion capacity. However, we expect pricing pressure in certain markets and the need to utilize tolled volume to meet customer commitments to impact Lithium performance during the remainder of the year.
On a longer term basis, we believe that demand for lithium will continue to grow as new lithium applications advance and the use of plug-in hybrid electric vehicles and full battery electric vehicles increases. This demand for lithium is supported by a favorable backdrop of steadily declining lithium ion battery costs, increasing battery performance and favorable global public policy toward e-mobility/renewable energy usage. Our outlook is also bolstered by long-term supply agreements with key strategic customers, reflecting our standing as a preferred global lithium partner, highlighted by our scale, access to geographically diverse, low-cost resources and long-term track record of reliability of supply and operating execution.
Bromine Specialties: We expect to see continued growth in net sales and profitability in 2019 due to healthy demand and pricing for our flame retardants and other derivatives. However, with sustained low oil prices, we expect stable, albeit low, drilling completion fluid demand throughout the year. While it is possible oil prices could continue to rebound some in 2019, the short-term impact will be to increase raw material costs. Offshore well completions lag oil pricing, so any benefit in completion fluid volume would likely extend throughout the year.
On a longer term basis, we continue to believe that improving global standards of living, widespread digitization, increasing demand for data management capacity and the potential for increasingly stringent fire safety regulations in developing markets are likely to drive continued demand for fire safety products. Absent an increase in regulatory pressure on offshore drilling, we would expect this business to follow a long-term growth trajectory once oil prices recover from prevailing levels as we expect that deep water drilling will continue to increase around the world. We are focused on profitably growing our globally competitive bromine and derivatives production network to serve all major bromine consuming products and markets. We believe the global supply/demand gap could tighten as demand for existing and possible new uses of bromine expands over time. The combination of our solid, long-term business fundamentals, strong cost position, product innovations and effective management of raw material costs will enable us to manage our business through end-market challenges and to capitalize on opportunities that are expected with favorable market trends in select end markets.
Catalysts: We believe increased global demand for transportation fuels, new refinery start-ups and ongoing adoption of cleaner fuels will be the primary drivers of growth in our Catalysts business. We believe delivering superior end-use performance continues to be the most effective way to create sustainable value in the refinery catalysts industry. We believe our technologies continue to provide significant performance and financial benefits to refiners challenged to meet tighter regulations around the world, including those managing new contaminants present in North America tight oil, and those in the Middle East and Asia seeking to use heavier feedstock while pushing for higher propylene yields. Longer term, we believe that the global crude supply will get heavier and more sour, a trend that bodes well for our catalysts portfolio. With superior technology and production capacities, and expected growth in end market demand, we believe that Catalysts remains well-positioned for the future. In Performance Catalyst Solutions (“PCS”), we expect growth on a longer term basis in our organometallic business due to growing global demand for plastics driven by rising standards of living and infrastructure spending.
All Other: The fine chemistry services business is reported outside the Company’s reportable segments as it does not fit in the Company’s core businesses. We expect the near future prospects for the fine chemistry services business to be impacted by a challenging agriculture industry environment and the timing of customer orders in pharmaceuticals. We continue to work to reinvigorate the pipeline of new products and services to these markets.
Corporate: In the first quarter of 2019, we increased our quarterly dividend rate to $0.3675 per share. We continue to focus on cash generation, working capital management and process efficiencies. We expect our global effective tax rate for 2019 to be between 18% and 19%; however, our rate will vary based on the locales in which income is actually earned and remains subject to potential volatility from changing legislation in the U.S., including the U.S. Tax Cuts and Jobs Act (“TCJA”), and other tax jurisdictions.
We remain committed to evaluating the merits of any opportunities that may arise for acquisitions or other business development activities that will complement our business footprint. Additional information regarding our products, markets and

27

financial performance is provided at our website, www.albemarle.com. Our website is not a part of this document nor is it incorporated herein by reference.

Results of Operations

The following data and discussion provide an analysis of certain significant factors affecting our results of operations during the periods included in the accompanying consolidated statements of income.

Third Quarter 2019 Compared to Third Quarter 2018

Selected Financial Data (Unaudited)

Net Sales
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Net sales
$
879,747

 
$
777,748

 
$
101,999

 
13
%
▪
$91.6 million of higher sales volume in all businesses and $17.9 million of favorable pricing impacts, primarily in Lithium and Bromine Specialties
▪
$7.6 million of unfavorable currency exchange resulting from the stronger U.S. Dollar against various currencies

Gross Profit
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Gross profit
$
309,867

 
$
280,537

 
$
29,330

 
10
%
Gross profit margin
35.2
%
 
36.1
%
 
 
 
 
▪
Higher sales volume in all businesses and favorable pricing impacts in Lithium and Bromine Specialties
▪
Higher tolled product costs in our Lithium segment to meet customer commitments and address operating issues in La Negra, Chile
▪
$7.0 million out-of-period non-cash expense recorded in the third quarter of 2019 in Cost of goods sold due to an adjustment of lithium carbonate inventory values in the second quarter of 2019

Selling, General and Administrative Expenses
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Selling, general and administrative expenses
$
108,135

 
$
100,167

 
$
7,968

 
8
%
Percentage of Net sales
12.3
%
 
12.9
%
 
 
 
 
▪
Higher professional fees to support planned projects and higher compensation-related spend

Research and Development Expenses
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Research and development expenses
$
15,585

 
$
16,610

 
$
(1,025
)
 
(6
)%
Percentage of Net sales
1.8
%
 
2.1
%
 
 
 
 
▪
Lower third quarter spend in our Lithium and Catalysts segments

Interest and Financing Expenses
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Interest and financing expenses
$
(11,108
)
 
$
(12,988
)
 
$
1,880

 
(14
)%
▪
Higher capitalized interest from an increase in capital expenditures in 2019, partially offset by higher commercial paper loan balances in 2019


28

Other (Expenses) Income, Net
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Other (expenses) income, net
$
(11,316
)
 
$
3,793

 
$
(15,109
)
 
(398
)%
▪
Increase in foreign exchange losses of $5.1 million
▪
Decrease in interest income due to lower cash balances
▪
$4.4 million decrease from the remeasurement of the fair value of our investment in private equity securities
▪
$3.1 million of unrecoverable vendor costs outside the operations of the business related to the construction of the future Kemerton production facility in 2019

Income Tax Expense
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Income tax expense
$
25,341

 
$
33,167

 
$
(7,826
)
 
(24
)%
Effective income tax rate
15.5
%
 
21.5
%
 
 
 
 
▪
Change in geographic mix of earnings, mainly attributable to our share of the income of our Jordan Bromine Company Limited (“JBC”) joint venture, a Free Zones company under the laws of the Hashemite Kingdom of Jordan

Equity in Net Income of Unconsolidated Investments
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Equity in net income of unconsolidated investments
$
33,236

 
$
22,081

 
$
11,155

 
51
%
▪
Higher equity income reported by our Lithium segment joint venture, Windfield Holdings Pty. Ltd.
▪
Approximately $6.2 million of foreign currency losses

Net Income Attributable to Noncontrolling Interests
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Net income attributable to noncontrolling interests
$
(16,548
)
 
$
(13,734
)
 
$
(2,814
)
 
20
%
▪
Increase in consolidated income related to our JBC joint venture from higher sales volume

Net Income Attributable to Albemarle Corporation
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Net income attributable to Albemarle Corporation
$
155,070

 
$
129,745

 
$
25,325

 
20
%
Percentage of Net sales
17.6
%
 
16.7
%
 
 
 
 
Basic earnings per share
$
1.46

 
$
1.21

 
$
0.25

 
21
%
Diluted earnings per share
$
1.46

 
$
1.20

 
$
0.26

 
22
%
▪
Higher sales volume in all businesses and favorable pricing impacts in Lithium and Bromine Specialties
▪
Lower effective tax rate in 2019 from a change in geographic mix of earnings
▪
Higher tolled product costs in Lithium to meet customer commitments and address operating issues in La Negra, Chile
▪
Increased Corporate costs for professional fees to support planned projects
▪
$3.8 million for the write-off of fixed assets related to a major capacity expansion in our Jordanian joint venture and $3.7 million of restructuring and other costs in 2018


29

Other Comprehensive Loss, Net of Tax
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Other comprehensive loss, net of tax
$
(86,688
)
 
$
(12,517
)
 
$
(74,171
)
 
593
 %
▪
Foreign currency translation
$
(100,069
)
 
$
(9,549
)
 
$
(90,520
)
 
948
 %
▪
2019 included unfavorable movements in the Euro of approximately $83 million, the Chinese Renminbi of approximately $8 million, the Brazilian Real of approximately $7 million and a net unfavorable variance in various other currencies totaling approximately $2 million
▪
2018 included unfavorable movements in the Chinese Renminbi of approximately $11 million, the Brazilian Real of approximately $3 million and a net unfavorable variance in various other currencies totaling approximately $4 million, partially offset by favorable movements in the Euro of approximately $8 million
▪
Net investment hedge
$
12,745

 
$
(3,621
)
 
$
16,366

 
(452
)%

Segment Information Overview. We have identified three reportable segments according to the nature and economic characteristics of our products as well as the manner in which the information is used internally by the Company’s chief operating decision maker to evaluate performance and make resource allocation decisions. Our reportable business segments consist of: (1) Lithium, (2) Bromine Specialties and (3) Catalysts.

Summarized financial information concerning our reportable segments is shown in the following tables. The “All Other” category includes only the fine chemistry services business, that does not fit into any of our core businesses.

The Corporate category is not considered to be a segment and includes corporate-related items not allocated to the operating segments. Pension and OPEB service cost (which represents the benefits earned by active employees during the period) and amortization of prior service cost or benefit are allocated to the reportable segments, All Other, and Corporate, whereas the remaining components of pension and OPEB benefits cost or credit (“Non-operating pension and OPEB items”) are included in Corporate. Segment data includes intersegment transfers of raw materials at cost and allocations for certain corporate costs.

The Company’s chief operating decision maker uses adjusted EBITDA (as defined below) to assess the ongoing performance of the Company’s business segments and to allocate resources. The Company defines adjusted EBITDA as earnings before interest, taxes, depreciation and amortization, as adjusted on a consistent basis for certain non-recurring or unusual items in a balanced manner and on a segment basis. These non-recurring or unusual items may include acquisition and integration related costs, gains or losses on sales of businesses, restructuring charges, facility divestiture charges, non-operating pension and OPEB items and other significant non-recurring items. In addition, management uses adjusted EBITDA for business planning purposes and as a significant component in the calculation of performance-based compensation for management and other employees. The Company has reported adjusted EBITDA because management believes it provides transparency to investors and enables period-to-period comparability of financial performance. Adjusted EBITDA is a financial measure that is not required by, or presented in accordance with, U.S. GAAP. Adjusted EBITDA should not be considered as an alternative to Net income attributable to Albemarle Corporation, the most directly comparable financial measure calculated and reported in accordance with U.S. GAAP, or any other financial measure reported in accordance with U.S. GAAP.


30

 
Three Months Ended September 30,
 
Percentage Change
 
2019
 
%
 
2018
 
%
 
2019 vs 2018
 
(In thousands, except percentages)
Net sales:
 
 
 
 
 
 
 
 
 
   Lithium
$
330,386

 
37.6
 %
 
$
270,928

 
34.8
 %
 
22
%
   Bromine Specialties
256,267

 
29.1
 %
 
232,616

 
29.9
 %
 
10
%
   Catalysts
261,346

 
29.7
 %
 
251,139

 
32.3
 %
 
4
%
   All Other
31,748

 
3.6
 %
 
23,065

 
3.0
 %
 
38
%
      Total net sales
$
879,747

 
100.0
 %
 
$
777,748

 
100.0
 %
 
13
%
 
 
 
 
 
 
 
 
 
 
Adjusted EBITDA:
 
 
 
 
 
 
 
 
 
   Lithium
$
127,459

 
50.1
 %
 
$
113,629

 
48.4
 %
 
12
%
   Bromine Specialties
88,814

 
34.9
 %
 
78,585

 
33.4
 %
 
13
%
   Catalysts
66,944

 
26.3
 %
 
62,602

 
26.6
 %
 
7
%
   All Other
10,448

 
4.1
 %
 
3,968

 
1.7
 %
 
163
%
   Corporate
(39,314
)
 
(15.4
)%
 
(23,702
)
 
(10.1
)%
 
66
%
      Total adjusted EBITDA
$
254,351

 
100.0
 %
 
$
235,082

 
100.0
 %
 
8
%

See below for a reconciliation of adjusted EBITDA, the non-GAAP financial measure, from Net income attributable to Albemarle Corporation, the most directly comparable financial measure calculated and reported in accordance with U.S. GAAP, (in thousands):

 
Lithium
 
Bromine Specialties
 
Catalysts
 
Reportable Segments Total
 
All Other
 
Corporate
 
Consolidated Total
Three months ended September 30, 2019
 
 
 
 
 
 
 
 
 
 
 
 
 
Net income (loss) attributable to Albemarle Corporation
$
102,136

 
$
75,224

 
$
54,345

 
$
231,705

 
$
8,305

 
$
(84,940
)
 
$
155,070

Depreciation and amortization
25,212

 
12,448

 
12,599

 
50,259

 
2,143

 
2,085

 
54,487

Acquisition and integration related costs(a)
—

 
—

 
—

 
—

 
—

 
4,114

 
4,114

Interest and financing expenses
—

 
—

 
—

 
—

 
—

 
11,108

 
11,108

Income tax expense
—

 
—

 
—

 
—

 
—

 
25,341

 
25,341

Non-operating pension and OPEB items
—

 
—

 
—

 
—

 
—

 
(551
)
 
(551
)
Other(b)
111

 
1,142

 
—

 
1,253

 
—

 
3,529

 
4,782

Adjusted EBITDA
$
127,459

 
$
88,814

 
$
66,944

 
$
283,217

 
$
10,448

 
$
(39,314
)
 
$
254,351

Three months ended September 30, 2018
 
 
 
 
 
 
 
 
 
 
 
 
 
Net income (loss) attributable to Albemarle Corporation
$
90,313

 
$
67,967

 
$
50,491

 
$
208,771

 
$
1,978

 
$
(81,004
)
 
$
129,745

Depreciation and amortization
23,370

 
10,618

 
12,111

 
46,099

 
1,990

 
1,618

 
49,707

Restructuring and other(c)
—

 
—

 
—

 
—

 
—

 
3,724

 
3,724

Acquisition and integration related costs(a)
—

 
—

 
—

 
—

 
—

 
4,305

 
4,305

Interest and financing expenses
—

 
—

 
—

 
—

 
—

 
12,988

 
12,988

Income tax expense
—

 
—

 
—

 
—

 
—

 
33,167

 
33,167

Non-operating pension and OPEB items
—

 
—

 
—

 
—

 
—

 
(2,195
)
 
(2,195
)
Legal accrual(d)
—

 
—

 
—

 
—

 
—

 
(1,017
)
 
(1,017
)
Other(e)
(54
)
 
—

 
—

 
(54
)
 
—

 
4,712

 
4,658

Adjusted EBITDA
$
113,629

 
$
78,585

 
$
62,602

 
$
254,816

 
$
3,968

 
$
(23,702
)
 
$
235,082


(a)
Included acquisition and integration related costs relating to various significant projects. For the three-month period ended September 30, 2019, $4.1 million was recorded in Selling, general and administrative expenses. For the three-month period ended September 30, 2018, $0.9 million was recorded in Cost of goods sold and $3.4 million was recorded in Selling, general and administrative expenses.
(b)
Included amounts for the three months ended September 30, 2019 recorded in:
▪
Cost of goods sold - $0.1 million related to non-routine labor and compensation related costs in Chile that are outside normal compensation arrangements.

31

▪
Selling, general and administrative expenses - $1.1 million of a write-off of uncollectable accounts receivable from a terminated distributor in the Bromine Specialties segment.
▪
Other (expenses) income, net - $3.1 million of unrecoverable vendor costs outside the operations of the business related to the construction of the future Kemerton production facility, as well as a net loss of $0.4 million primarily resulting from the settlement of legal matters related to previously disposed businesses or recorded in purchase accounting.
(c)
Severance payments as part of a business reorganization plan, recorded in Selling, general and administrative expenses.
(d)
Included in Other (expenses) income, net is a gain of $1.4 million resulting from a jury rendered verdict against Albemarle related to certain business concluded under a 2014 sales agreement for products that Albemarle no longer manufactures, partially offset by a $0.4 million expense resulting from a settlement of a legal matter related to guarantees from a previously disposed business.
(e)
Included amounts for the three months ended September 30, 2018 recorded in:
▪
Cost of goods sold - $3.8 million for the write-off of fixed assets related to a major capacity expansion in our Jordanian joint venture.
▪
Selling, general and administrative expenses - $0.1 million gain related to a refund from Chilean authorities due to an overpayment made in a prior year, partially offset by a $1.2 million contribution, using a portion of the proceeds received from the sale of the polyolefin catalysts and components portion of the PCS business (“Polyolefin Catalysts Divestiture”), to schools in the state of Louisiana for qualified tuition purposes. This contribution is significant in size and is intended to provide long-term benefits for families in the Louisiana community.
▪
Other (expenses) income, net - $0.2 million gain related to the revision of previously recorded expenses of disposed businesses.

Lithium
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Net sales
$
330,386

 
$
270,928

 
$
59,458

 
22
%
▪
$59.5 million of higher sales volume, primarily in battery grade salts, despite deferred shipments due to disruption caused by Typhoon Tapah in Shanghai in late September. The impacted volume is expected to be fully recovered in the fourth quarter of 2019.
▪
$2.8 million of favorable pricing impacts, mainly on lithium hydroxide
▪
$3.0 million of unfavorable currency translation resulting from the stronger U.S. Dollar against various currencies
Adjusted EBITDA
$
127,459

 
$
113,629

 
$
13,830

 
12
%
▪
Higher sales volume and favorable pricing impacts
▪
$4.0 million of favorable currency translation resulting from a weaker Chilean Peso
▪
Increased cost of goods sold, mainly related to higher tolling product costs to meet customer commitments and address operating issues in La Negra, Chile
▪
$7.0 million out-of-period non-cash expense recorded in the third quarter of 2019 in Cost of goods sold due to an adjustment of lithium carbonate inventory values in the second quarter of 2019

Bromine Specialties
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Net sales
$
256,267

 
$
232,616

 
$
23,651

 
10
%
▪
$16.4 million in favorable pricing and $8.6 million in higher sales volume in flame-retardants and other bromine derivatives due to continued strong demand
▪
$1.3 million of unfavorable currency translation resulting from the stronger U.S. Dollar
Adjusted EBITDA
$
88,814

 
$
78,585

 
$
10,229

 
13
%
▪
Favorable pricing and higher sales volume

Catalysts
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Net sales
$
261,346

 
$
251,139

 
$
10,207

 
4
%
▪
$14.2 million of higher sales volume, mainly in our Clean Fuel Technology business, partially offset lower volumes in the Fluid Catalytic Cracking (“FCC”) Catalysts business related to delays in the start-up of new FCC units
▪
$0.7 million of unfavorable pricing impacts
▪
$3.2 million of unfavorable currency translation resulting from the stronger U.S. Dollar against various currencies
Adjusted EBITDA
$
66,944

 
$
62,602

 
$
4,342

 
7
%
▪
Higher sales volume and a favorable product mix in the Clean Fuel Technology business
▪
Unfavorable pricing impacts
▪
Partial insurance claim reimbursement of $2.2 million received in 2018


32

All Other
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Net sales
$
31,748

 
$
23,065

 
$
8,683

 
38
%
▪
Increased sales volume in our fine chemistry services business
Adjusted EBITDA
$
10,448

 
$
3,968

 
$
6,480

 
163
%
▪
Increased sales volume in our fine chemistry services business
▪
$4.4 million decrease from the remeasurement of the fair value of our investment in private equity securities

Corporate
In thousands
Q3 2019
 
Q3 2018
 
$ Change
 
% Change
Adjusted EBITDA
$
(39,314
)
 
$
(23,702
)
 
$
(15,612
)
 
66
%
▪
Higher selling, general and administrative spending related to professional fees to support planned projects
▪
$11.3 million of unfavorable currency exchange impacts, including approximately $6.2 million of foreign currency losses reported within Equity in net income of unconsolidated investments


Nine Months 2019 Compared to Nine Months 2018

Selected Financial Data (Unaudited)

Net Sales
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Net sales
$
2,596,863

 
$
2,453,251

 
$
143,612

 
6
%
▪
$140.3 million of higher sales volume and $67.4 million of favorable pricing impacts in all businesses
▪
$37.0 million of unfavorable currency exchange resulting from a stronger U.S. Dollar
▪
$27.1 million related to the Polyolefin Catalysts Divestiture

Gross Profit
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Gross profit
$
919,267

 
$
896,872

 
$
22,395

 
2
%
Gross profit margin
35.4
%
 
36.6
%
 
 
 
 
▪
Higher sales volume and favorable pricing impacts in all businesses
▪
Higher input costs in our Lithium segment
▪
Higher raw material costs primarily in our Bromine Specialties and Catalysts segments
▪
$10.7 million related to the Polyolefin Catalysts Divestiture
▪
Unfavorable currency exchange impacts resulting from the stronger U.S. Dollar against various currencies

Selling, General and Administrative Expenses
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Selling, general and administrative expenses
$
348,205

 
$
325,174

 
$
23,031

 
7
%
Percentage of Net sales
13.4
%
 
13.3
%
 
 
 
 
▪
$5.3 million of severance payments as part of a business reorganization plan in 2019
▪
$4.2 million of increased acquisition and integration related costs
▪
Higher professional fees to support planned projects and compensation-related spend
▪
$16.2 million of charitable contributions in 2018 beyond the Company’s ordinary, recurring charitable contributions

Research and Development Expenses
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Research and development expenses
$
44,024

 
$
53,670

 
$
(9,646
)
 
(18
)%
Percentage of Net sales
1.7
%
 
2.2
%
 
 
 
 
▪
Lower spend in our Lithium and Catalysts segments


33

Gain on Sale of Business
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Gain on sale of business
$
—

 
$
(218,705
)
 
$
218,705

 
(100
)%
▪
Gain related to the Polyolefin Catalysts Divestiture, which closed in the second quarter of 2018

Interest and Financing Expenses
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Interest and financing expenses
$
(35,295
)
 
$
(39,834
)
 
$
4,539

 
(11
)%
▪
Higher capitalized interest from a continued increase in capital expenditures in 2019, partially offset by higher commercial paper loan balances in 2019

Other Expenses, Net
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Other expenses, net
$
(7,090
)
 
$
(31,906
)
 
$
24,816

 
(78
)%
▪
$11.1 million gain related to the sale of land in Pasadena, Texas
▪
$27.0 million of legal expenses in 2018, related to products that Albemarle no longer manufactures and a previously disposed business
▪
$15.6 million in 2018 related to environmental charges related to a site formerly owned by Albemarle
▪
Increase in foreign exchange losses of $15.7 million
▪
$4.4 million decrease from the remeasurement of the fair value of our investment in private equity securities

Income Tax Expense
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Income tax expense
$
93,266

 
$
133,630

 
$
(40,364
)
 
(30
)%
Effective income tax rate
19.2
%
 
20.1
%
 
 
 
 
▪
Change in geographic mix of earnings, mainly attributable to our share of the income of our JBC joint venture, a Free Zones company under the laws of the Hashemite Kingdom of Jordan
▪
$30.4 million of discrete net tax expense in 2018, primarily related to the Polyolefin Catalysts Divestiture

Equity in Net Income of Unconsolidated Investments
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Equity in net income of unconsolidated investments
$
106,727

 
$
61,727

 
$
45,000

 
73
%
▪
Higher equity income reported by our Lithium segment joint venture, Windfield Holdings Pty. Ltd.
▪
Approximately $6.2 million of foreign currency losses

Net Income Attributable to Noncontrolling Interests
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Net income attributable to noncontrolling interests
$
(55,277
)
 
$
(29,124
)
 
$
(26,153
)
 
90
%
▪
Increase in consolidated income related to our JBC joint venture from higher sales volume in the current year


34

Net Income Attributable to Albemarle Corporation
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Net income attributable to Albemarle Corporation
$
442,837

 
$
563,966

 
$
(121,129
)
 
(21
)%
Percentage of Net sales
17.1
%
 
23.0
%
 
 
 
 
Basic earnings per share
$
4.18

 
$
5.16

 
$
(0.98
)
 
(19
)%
Diluted earnings per share
$
4.16

 
$
5.11

 
$
(0.95
)
 
(19
)%
▪
After tax gain in 2018 of $176.7 million related to the Polyolefin Catalysts Divestiture
▪
Higher input costs in Lithium
▪
Increased Corporate costs for professional fees to support planned projects
▪
Unfavorable currency exchange impact
▪
Higher sales volume and favorable pricing impacts in all businesses
▪
$27.0 million of legal expenses in 2018 related to products that Albemarle no longer manufactures and a previously disposed business
▪
$16.2 million of charitable contributions in 2018 beyond the Company’s ordinary, recurring charitable contributions
▪
$15.6 million in 2018 related to environmental charges related to a site formerly owned by Albemarle

Other Comprehensive Loss, Net of Tax
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Other comprehensive loss, net of tax
$
(85,437
)
 
$
(88,605
)
 
$
3,168

 
(4
)%
▪
Foreign currency translation
$
(100,380
)
 
$
(95,515
)
 
$
(4,865
)
 
5
 %
▪
2019 included unfavorable movements in the Euro of approximately $85 million, the Chinese Renminbi of approximately $9 million, the Brazilian Real of approximately $6 million and the Korean Won of approximately $3 million, partially offset by a net favorable variance in various other currencies totaling approximately $2 million
▪
2018 included unfavorable movements in the Euro of approximately $55 million, the Brazilian Real of approximately $15 million, the Chinese Renminbi of approximately $15 million, the Korean Won of approximately $4 million and a net unfavorable variance in various other currencies totaling approximately $6 million
▪
Net investment hedge
$
13,012

 
$
4,947

 
$
8,065

 
163
 %

Segment Information Overview. Summarized financial information concerning our reportable segments is shown in the following tables. The “All Other” category includes only the fine chemistry services business, that does not fit into any of our core businesses.

 
Nine Months Ended September 30,
 
Percentage Change
 
2019
 
%
 
2018
 
%
 
2019 vs. 2018
 
(In thousands, except percentages)
Net sales:
 
 
 
 
 
 
 
 
 
   Lithium
$
947,030

 
36.5
 %
 
$
886,523

 
36.1
 %
 
7
 %
   Bromine Specialties
760,752

 
29.3
 %
 
678,769

 
27.7
 %
 
12
 %
   Catalysts
779,295

 
30.0
 %
 
796,822

 
32.5
 %
 
(2
)%
   All Other
109,786

 
4.2
 %
 
90,978

 
3.7
 %
 
21
 %
   Corporate
—

 
—
 %
 
159

 
—
 %
 
(100
)%
      Total net sales
$
2,596,863

 
100.0
 %
 
$
2,453,251

 
100.0
 %
 
6
 %
 
 
 
 
 
 
 
 
 
 
Adjusted EBITDA:
 
 
 
 
 
 
 
 
 
   Lithium
$
384,854

 
51.9
 %
 
$
386,260

 
52.0
 %
 
—
 %
   Bromine Specialties
248,743

 
33.5
 %
 
217,921

 
29.4
 %
 
14
 %
   Catalysts
193,890

 
26.1
 %
 
205,534

 
27.7
 %
 
(6
)%
   All Other
28,931

 
3.9
 %
 
7,729

 
1.0
 %
 
274
 %
   Corporate
(114,300
)
 
(15.4
)%
 
(75,082
)
 
(10.1
)%
 
52
 %
      Total adjusted EBITDA
$
742,118

 
100.0
 %
 
$
742,362

 
100.0
 %
 
—
 %


35

See below for a reconciliation of adjusted EBITDA, the non-GAAP financial measure, from Net income attributable to Albemarle Corporation, the most directly comparable financial measure calculated and reported in accordance with U.S. GAAP, (in thousands):
 
Lithium
 
Bromine Specialties
 
Catalysts
 
Reportable Segments Total
 
All Other
 
Corporate
 
Consolidated Total
Nine months ended September 30, 2019
 
 
 
 
 
 
 
 
 
 
 
 
 
Net income (loss) attributable to Albemarle Corporation
$
312,609

 
$
212,320

 
$
156,328

 
$
681,257

 
$
22,629

 
$
(261,049
)
 
$
442,837

Depreciation and amortization
71,669

 
35,281

 
37,562

 
144,512

 
6,302

 
5,904

 
156,718

Acquisition and integration related costs(a)
—

 
—

 
—

 
—

 
—

 
14,388

 
14,388

Gain on sale of property(b)
—

 
—

 
—

 
—

 
—

 
(11,079
)
 
(11,079
)
Interest and financing expenses
—

 
—

 
—

 
—

 
—

 
35,295

 
35,295

Income tax expense
—

 
—

 
—

 
—

 
—

 
93,266

 
93,266

Non-operating pension and OPEB items
—

 
—

 
—

 
—

 
—

 
(1,810
)
 
(1,810
)
Other(c)
576

 
1,142

 
—

 
1,718

 
—

 
10,785

 
12,503

Adjusted EBITDA
$
384,854

 
$
248,743

 
$
193,890

 
$
827,487

 
$
28,931

 
$
(114,300
)
 
$
742,118

Nine months ended September 30, 2018
 
 
 
 
 
 
 
 
 
 
 
 
 
Net income (loss) attributable to Albemarle Corporation
$
315,939

 
$
187,176

 
$
387,038

 
$
890,153

 
$
1,659

 
$
(327,846
)
 
$
563,966

Depreciation and amortization
71,760

 
30,745

 
37,201

 
139,706

 
6,070

 
4,735

 
150,511

Restructuring and other(d)
—

 
—

 
—

 
—

 
—

 
3,724

 
3,724

Gain on sale of business(e)
—

 
—

 
(218,705
)
 
(218,705
)
 
—

 
—

 
(218,705
)
Acquisition and integration related costs(a)
—

 
—

 
—

 
—

 
—

 
13,016

 
13,016

Interest and financing expenses
—

 
—

 
—

 
—

 
—

 
39,834

 
39,834

Income tax expense
—

 
—

 
—

 
—

 
—

 
133,630

 
133,630

Non-operating pension and OPEB items
—

 
—

 
—

 
—

 
—

 
(6,596
)
 
(6,596
)
Legal accrual(f)
—

 
—

 
—

 
—

 
—

 
27,027

 
27,027

Environmental accrual(g)
—

 
—

 
—

 
—

 
—

 
15,597

 
15,597

Albemarle Foundation contribution(h)
—

 
—

 
—

 
—

 
—

 
15,000

 
15,000

Other(i)
(1,439
)
 
—

 
—

 
(1,439
)
 
—

 
6,797

 
5,358

Adjusted EBITDA
$
386,260

 
$
217,921

 
$
205,534

 
$
809,715

 
$
7,729

 
$
(75,082
)
 
$
742,362


(a)
Included acquisition and integration related costs relating to various significant projects. For the nine-month period ended September 30, 2019, $14.4 million was recorded in Selling, general and administrative expenses. For the nine-month period ended September 30, 2018, $2.9 million was recorded in Cost of goods sold and $10.2 million was recorded in Selling, general and administrative expenses.
(b)
Gain recorded in Other expenses, net related to the sale of land in Pasadena, Texas not used as part of our operations.
(c)
Included amounts for the nine months ended September 30, 2019 recorded in:
▪
Cost of goods sold - $0.6 million related to non-routine labor and compensation related costs in Chile that are outside normal compensation arrangements.
▪
Selling, general and administrative expenses - Expected severance payments to be made in 2019 as part of a business reorganization plan of $5.3 million, with the unpaid balance recorded in Accrued expenses as of September 30, 2019, $1.0 million of shortfall contributions for our multiemployer plan financial improvement plan, and $1.1 million of a write off of uncollectable accounts receivable from a terminated distributor in the Bromine Specialties segment.
▪
Other expenses, net - $3.1 million of unrecoverable vendor costs outside the operations of the business related to the construction of the future Kemerton production facility, a net loss of $0.4 million primarily resulting from the settlement of legal matters related to previously disposed businesses or recorded in purchase accounting, and $0.9 million of a net loss primarily resulting from the revision of indemnifications and other liabilities related to previously disposed businesses.
(d)
Severance payments as part of a business reorganization plan, recorded in Selling, general and administrative expenses.
(e)
See “Gain on Sale of Business” on page 34 for a description of this gain.
(f)
Included in Other expenses, net is a $16.2 million expense resulting from a jury rendered verdict against Albemarle related to certain business concluded under a 2014 sales agreement for products that Albemarle no longer manufactures and a $10.8 million expense resulting from a settlement of a legal matter related to guarantees from a previously disposed business.
(g)
Increase in environmental reserve to indemnify the buyer of a formerly owned site recorded in Other expenses, net. As defined in the agreement of sale, this indemnification has a set cutoff date in 2024, at which point we will no longer be required to provide financial coverage.
(h)
Included in Selling, general and administrative expenses is a charitable contribution, using a portion of the proceeds received from the Polyolefin Catalysts Divestiture, to the Albemarle Foundation, a non-profit organization that sponsors grants, health and social projects, educational initiatives, disaster relief, matching gift programs, scholarships and other charitable initiatives in locations where our

36

employees live and operate. This contribution is in addition to the ordinary annual contribution made to the Albemarle Foundation by the Company, and is significant in size and nature in that it is intended to provide more long-term benefits in the communities where we live and operate.
(i)
Included amounts for the nine months ended September 30, 2018 recorded in:
▪
Cost of goods sold - $4.9 million for the write-off of fixed assets related to a major capacity expansion in our Jordanian joint venture.
▪
Selling, general and administrative expenses - $1.5 million gain related to a refund from Chilean authorities due to an overpayment made in a prior year, partially offset by a $1.2 million contribution, using a portion of the proceeds received from the Polyolefin Catalysts Divestiture, to schools in the state of Louisiana for qualified tuition purposes. This contribution is significant in size and is intended to provide long-term benefits for families in the Louisiana community.
▪
Other expenses, net - $0.8 million related to the revision of previously recorded expenses of disposed businesses.

Lithium
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Net sales
$
947,030

 
$
886,523

 
$
60,507

 
7
 %
▪
$59.5 million in higher sales volume, primarily in battery grade salts
▪
$16.7 million of favorable pricing impacts, mainly on lithium hydroxide
▪
$16.0 million of unfavorable currency translation resulting from the stronger U.S. Dollar against various currencies
Adjusted EBITDA
$
384,854

 
$
386,260

 
$
(1,406
)
 
—
 %
▪
Increased cost of goods sold, mainly related to higher input costs
▪
Higher sales volume and favorable pricing impacts, mainly on lithium hydroxide
▪
$6.2 million of favorable currency translation resulting from a weaker Chilean Peso

Bromine Specialties
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Net sales
$
760,752

 
$
678,769

 
$
81,983

 
12
%
▪
$47.7 million in higher sales volume and $42.2 million in favorable pricing impacts in flame retardants and other bromine derivatives due to continued strong demand
▪
$7.8 million of unfavorable currency translation resulting from the stronger U.S. Dollar against various currencies
Adjusted EBITDA
$
248,743

 
$
217,921

 
$
30,822

 
14
%
▪
Higher sales volume and favorable pricing impacts
▪
Higher production and raw material costs
▪
$5.4 million of unfavorable currency translation

Catalysts
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Net sales
$
779,295

 
$
796,822

 
$
(17,527
)
 
(2
)%
▪
$27.1 million impact of the Polyolefin Catalysts Divestiture
▪
$13.2 million of unfavorable currency translation resulting from the stronger U.S. Dollar against various currencies
▪
$15.5 million of higher sales volume and favorable pricing impacts of $7.4 million
Adjusted EBITDA
$
193,890

 
$
205,534

 
$
(11,644
)
 
(6
)%
▪
$10.9 million impact of the Polyolefin Catalysts Divestiture
▪
Higher raw material costs
▪
$5.7 million of unfavorable currency translation
▪
Higher sales volume and favorable pricing impacts
▪
Partial insurance claim reimbursement of $4.2 million received in 2018

All Other
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Net sales
$
109,786

 
$
90,978

 
$
18,808

 
21
%
▪
Higher sales volume and favorable pricing impacts in our fine chemistry services business
Adjusted EBITDA
$
28,931

 
$
7,729

 
$
21,202

 
274
%
▪
Increased sales volume and favorable pricing impacts in our fine chemistry services business
▪
$4.4 million decrease from the remeasurement of the fair value of our investment in private equity securities


37

Corporate
In thousands
YTD 2019
 
YTD 2018
 
$ Change
 
% Change
Adjusted EBITDA
$
(114,300
)
 
$
(75,082
)
 
$
(39,218
)
 
52
%
▪
Higher selling, general and administrative spending related to professional fees to support planned projects
▪
$21.9 million of unfavorable currency exchange impacts, including approximately $6.2 million of foreign currency losses reported within Equity in net income of unconsolidated investments
Financial Condition and Liquidity
Overview
The principal uses of cash in our business generally have been capital investments and resource development costs, funding working capital and service of debt. We also make contributions to our defined benefit pension plans, pay dividends to our shareholders and repurchase shares of our common stock. Historically, cash to fund the needs of our business has been principally provided by cash from operations, debt financing and equity issuances.
We are continually focused on working capital efficiency particularly in the areas of accounts receivable and inventory. We anticipate that cash on hand, cash provided by operating activities, proceeds from divestitures and borrowings will be sufficient to pay our operating expenses, satisfy debt service obligations, fund capital expenditures and other investing activities, fund pension contributions and pay dividends for the foreseeable future.
Cash Flow
During the first nine months of 2019, cash on hand, cash provided by operations and commercial paper note borrowings funded $608.5 million of capital expenditures for plant, machinery and equipment, and dividends to shareholders of $113.3 million. Our operations provided $345.6 million of cash flows during the first nine months of 2019, as compared to $376.9 million for the first nine months of 2018, with the decrease primarily arising from a higher working capital outflow and lower cash earnings in Catalysts. This was partially offset by higher dividends received from unconsolidated investments, as well as increased cash earnings in Bromine Specialties. Our outflow from working capital changes in 2019 of $289.6 million was primarily due to the build-up of inventory in the Lithium and Catalysts segments to meet higher projected sales during the remainder of 2019, the timing on collection of certain receivables and higher cash taxes paid. Overall, our cash and cash equivalents decreased by $237.5 million to $317.8 million at September 30, 2019 from $555.3 million at December 31, 2018.
Capital expenditures for the nine-month period ended September 30, 2019 of $608.5 million were associated with plant, machinery and equipment. We expect our capital expenditures to approximate between $900 million to $950 million in 2019 for Lithium growth and capacity increases, as well as productivity and continuity of operations projects in all segments. Of the total capital expenditures, our projects related to the continuity of operations are expected to remain in the range of 4-6% of net sales, similar to prior years.
Net current assets were $548.5 million and $815.2 million at September 30, 2019 and December 31, 2018, respectively. The decrease is primarily due to the increase in commercial paper notes outstanding and the reduction in cash and cash equivalents used primarily to fund the increase in capital expenditures during 2019. Additional changes in the components of net current assets are primarily due to the timing of the sale of goods and other ordinary transactions leading up to the balance sheet dates. The additional changes are not the result of any policy changes by the Company, and do not reflect any change in either the quality of our net current assets or our expectation of success in converting net working capital to cash in the ordinary course of business.
On February 26, 2019, we increased our quarterly dividend rate to $0.3675 per share, a 10% increase from the quarterly rate of $0.335 per share paid in 2018.
At September 30, 2019 and December 31, 2018, our cash and cash equivalents included $296.0 million and $525.8 million, respectively, held by our foreign subsidiaries. The majority of these foreign cash balances are associated with earnings that we have asserted are indefinitely reinvested and which we plan to use to support our continued growth plans outside the U.S. through funding of capital expenditures, acquisitions, research, operating expenses or other similar cash needs of our foreign operations. From time to time, we repatriate cash associated with earnings from our foreign subsidiaries to the U.S. for normal operating needs through intercompany dividends, but only from subsidiaries whose earnings we have not asserted to be indefinitely reinvested or whose earnings qualify as “previously taxed income” as defined by the Internal Revenue Code. During the first nine months of 2019 and 2018, we repatriated $9.3 million and $621.8 million, respectively, of cash as part of these foreign earnings cash repatriation activities.

38

On October 31, 2019, we completed the previously announced acquisition of a 60% interest in the Wodgina Project for a total purchase price of $1.3 billion. The purchase price comprised $820 million in cash, subject to certain adjustments, and the transfer of 40% interest in certain lithium hydroxide conversion assets being built by Albemarle in Kemerton, Western Australia, valued at $480 million. The cash consideration was funded by the unsecured credit facility entered into on August 14, 2019.
While we continue to closely monitor our cash generation, working capital management and capital spending in light of continuing uncertainties in the global economy, we believe that we will continue to have the financial flexibility and capability to opportunistically fund future growth initiatives. Additionally, we anticipate that future capital spending, including business acquisitions, share repurchases and other cash outlays, should be financed primarily with cash flow provided by operations and cash on hand, with additional cash needed, if any, provided by borrowings. The amount and timing of any additional borrowings will depend on our specific cash requirements.
Long-Term Debt
We currently have the following senior notes outstanding:
Issue Month/Year
 
Principal (in millions)
 
Interest Rate
 
Interest Payment Dates
 
Maturity Date
December 2014
 
€393.0
 
1.875%
 
December 8
 
December 8, 2021
November 2014
 
$425.0
 
4.15%
 
June 1
December 1
 
December 1, 2024
November 2014
 
$350.0
 
5.45%
 
June 1
December 1
 
December 1, 2044
December 2010
 
$175.3
 
4.50%
 
June 15
December 15
 
December 15, 2020
Our senior notes are senior unsecured obligations and rank equally with all our other senior unsecured indebtedness from time to time outstanding. The senior notes are effectively subordinated to any of our existing or future secured indebtedness and to the existing and future indebtedness of our subsidiaries. As is customary for such long-term debt instruments, each senior note outstanding has terms that allow us to redeem the notes before its maturity, in whole at any time or in part from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the senior notes to be redeemed, or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis using the comparable government rate (as defined in the indentures governing the senior notes) plus between 25 and 40 basis points, depending on the note, plus, in each case, accrued interest thereon to the date of redemption. Holders may require us to purchase such notes at 101% upon a change of control triggering event, as defined in the indentures. The senior notes are subject to typical events of default, including bankruptcy and insolvency events, nonpayment and the acceleration of certain subsidiary indebtedness of $40 million or more caused by a nonpayment default.
Our revolving, unsecured credit agreement dated as of June 21, 2018, as amended on August 14, 2019 (the “2018 Credit Agreement”), currently provides for borrowings of up to $1.0 billion and matures on August 9, 2024. Borrowings under the 2018 Credit Agreement bear interest at variable rates based on an average LIBOR for deposits in the relevant currency plus an applicable margin which ranges from 0.910% to 1.500%, depending on the Company’s credit rating from Standard & Poor’s Ratings Services, Moody’s Investors Services and Fitch Ratings. The applicable margin on the facility was 1.125% as of September 30, 2019. There were no borrowings outstanding under the 2018 Credit Agreement as of September 30, 2019.
On August 14, 2019, the Company entered into a $1.2 billion unsecured credit facility (the “2019 Credit Facility”) with the several banks and other financial institutions. The lenders’ commitment to provide loans under the 2019 Credit Facility terminates on August 11, 2020, with each such loan maturing one year after the funding of such loan. The Company can request that the maturity date of loans be extended for an additional period of up to four additional years, but any such extension is subject to the approval of the lenders. Borrowings under the 2019 Credit Facility bear interest at variable rates based on an average LIBOR for deposits in the relevant currency plus an applicable margin which ranges from 0.875% to 1.625%, depending on the Company’s credit rating from Standard & Poor’s Financial Services LLC, Moody’s Investor Services, Inc. and Fitch Ratings, Inc. As of the closing of the 2019 Credit Facility, the applicable margin over LIBOR was 1.125%. There were no borrowings outstanding under the 2019 Credit Facility as of September 30, 2019. In October 2019, we borrowed $1.0 billion under this credit facility to fund the cash portion of the October 31, 2019 acquisition of a 60% interest in MRL’s Wodgina Project and for general corporate purposes.
Borrowings under the 2019 Credit Facility and 2018 Credit Agreement (together “the Credit Agreements”) are conditioned upon satisfaction of certain conditions precedent, including the absence of defaults. The Company is subject to one financial covenant, as well as customary affirmative and negative covenants. The financial covenant requires that the Company’s consolidated funded debt to consolidated EBITDA ratio (as such terms are defined in the Credit Agreements) to be

39

less than or equal to 3.50:1, subject to adjustments in accordance with the terms of the Credit Agreements relating to a consummation of an acquisition where the consideration includes cash proceeds from issuance of funded debt in excess of $500 million. The Credit Agreements also contain customary default provisions, including defaults for non-payment, breach of representations and warranties, insolvency, non-performance of covenants and cross-defaults to other material indebtedness. The occurrence of an event of default under the Credit Agreements could result in all loans and other obligations becoming immediately due and payable and the credit facility being terminated. Certain representations, warranties and covenants under the 2018 Credit Agreement were conformed to those under the 2019 Credit Facility following an amendment entered into on August 14, 2019.
On May 29, 2013, we entered into agreements to initiate a commercial paper program on a private placement basis under which we may issue unsecured commercial paper notes (the “Commercial Paper Notes”) from time-to-time up to a maximum aggregate principal amount outstanding at any time of $750.0 million. The proceeds from the issuance of the Commercial Paper Notes are expected to be used for general corporate purposes, including the repayment of other debt of the Company. Our 2018 Credit Agreement is available to repay the Commercial Paper Notes, if necessary. Aggregate borrowings outstanding under the 2018 Credit Agreement and the Commercial Paper Notes will not exceed the $1.0 billion current maximum amount available under the 2018 Credit Agreement. The Commercial Paper Notes will be sold at a discount from par, or alternatively, will be sold at par and bear interest at rates that will vary based upon market conditions at the time of issuance. The maturities of the Commercial Paper Notes will vary but may not exceed 397 days from the date of issue. The definitive documents relating to the commercial paper program contain customary representations, warranties, default and indemnification provisions. At September 30, 2019, we had $539.3 million of Commercial Paper Notes outstanding bearing a weighted-average interest rate of approximately 2.28% and a weighted-average maturity of 31 days. The Commercial Paper Notes are classified as Current portion of long-term debt in our condensed consolidated balance sheets at September 30, 2019 and December 31, 2018.
The non-current portion of our long-term debt amounted to $1.38 billion at September 30, 2019, compared to $1.40 billion at December 31, 2018. In addition, at September 30, 2019, we had availability to borrow $1.66 billion under our commercial paper program and the Credit Agreements, and $286.7 million under other existing lines of credit, subject to various financial covenants under our Credit Agreements. We have the ability and intent to refinance our borrowings under our other existing credit lines with borrowings under the 2018 Credit Agreement, as applicable. Therefore, the amounts outstanding under those credit lines, if any, are classified as long-term debt. We believe that as of September 30, 2019, we were, and currently are, in compliance with all of our long-term debt covenants.
Off-Balance Sheet Arrangements
In the ordinary course of business with customers, vendors and others, we have entered into off-balance sheet arrangements, including bank guarantees and letters of credit, which totaled approximately $79.5 million at September 30, 2019. None of these off-balance sheet arrangements has, or is likely to have, a material effect on our current or future financial condition, results of operations, liquidity or capital resources.
Other Obligations
Our contractual obligations have not significantly changed based on our ordinary business activities and projected capital expenditures from the information we provided in our Annual Report on Form 10-K for the year ended December 31, 2018.
Total expected 2019 contributions to our domestic and foreign qualified and nonqualified pension plans, including our SERP, should approximate $12 million. We may choose to make additional pension contributions in excess of this amount. We have made contributions of $8.6 million to our domestic and foreign pension plans (both qualified and nonqualified) during the nine-month period ended September 30, 2019.
The liability related to uncertain tax positions, including interest and penalties, recorded in Other noncurrent liabilities totaled $26.0 million at September 30, 2019 and $22.9 million at December 31, 2018. Related assets for corresponding offsetting benefits recorded in Other assets totaled $12.1 million at September 30, 2019 and $13.0 million at December 31, 2018. We cannot estimate the amounts of any cash payments associated with these liabilities for the remainder of 2019 or the next twelve months, and we are unable to estimate the timing of any such cash payments in the future at this time.
We are subject to federal, state, local and foreign requirements regulating the handling, manufacture and use of materials (some of which may be classified as hazardous or toxic by one or more regulatory agencies), the discharge of materials into the environment and the protection of the environment. To our knowledge, we are currently complying, and expect to continue to comply, in all material respects with applicable environmental laws, regulations, statutes and ordinances. Compliance with existing federal, state, local and foreign environmental protection laws is not expected to have a material effect on capital expenditures, earnings or our competitive position, but the costs associated with increased legal or regulatory requirements could have an adverse effect on our operating results.

40

Among other environmental requirements, we are subject to the federal Superfund law, and similar state laws, under which we may be designated as a potentially responsible party (“PRP”), and may be liable for a share of the costs associated with cleaning up various hazardous waste sites. Management believes that in cases in which we may have liability as a PRP, our liability for our share of cleanup is de minimis. Further, almost all such sites represent environmental issues that are quite mature and have been investigated, studied and in many cases settled. In de minimis situations, our policy generally is to negotiate a consent decree and to pay any apportioned settlement, enabling us to be effectively relieved of any further liability as a PRP, except for remote contingencies. In other than de minimis PRP matters, our records indicate that unresolved PRP exposures should be immaterial. We accrue and expense our proportionate share of PRP costs. Because management has been actively involved in evaluating environmental matters, we are able to conclude that the outstanding environmental liabilities for unresolved PRP sites should not have a material adverse effect upon our results of operations or financial condition.
Liquidity Outlook
We anticipate that cash on hand and cash provided by operating activities, divestitures and borrowings will be sufficient to pay our operating expenses, satisfy debt service obligations, fund any capital expenditures and share repurchases, make acquisitions, make pension contributions and pay dividends for the foreseeable future. Our main focus over the next three years, in terms of uses of cash, will be investing in growth of the businesses and the return of value to shareholders. Additionally, we will continue to evaluate the merits of any opportunities that may arise for acquisitions of businesses or assets, which may require additional liquidity. For example, we funded the cash portion of the October 31, 2019 acquisition of 60% ownership of the Wodgina Project of $820 million with new debt borrowings.
Our cash flows from operations may be negatively affected by adverse consequences to our customers and the markets in which we compete as a result of moderating global economic conditions and reduced capital availability.
While we maintain business relationships with a diverse group of financial institutions, an adverse change in their credit standing could lead them to not honor their contractual credit commitments, decline funding under existing but uncommitted lines of credit, not renew their extensions of credit or not provide new financing. While the global corporate bond and bank loan markets remain strong, periods of elevated uncertainty related to global economic and/or geopolitical concerns may limit efficient access to such markets for extended periods of time. If such concerns heighten, we may incur increased borrowing costs and reduced credit capacity as our various credit facilities mature. When the U.S. Federal Reserve or similar national reserve banks in other countries decide to tighten the monetary supply in response, for example, to improving economic conditions, we may incur increased borrowing costs as interest rates increase on our variable rate credit facilities, as our various credit facilities mature or as we refinance any maturing fixed rate debt obligations, although these cost increases would be partially offset by increased income rates on portions of our cash deposits.
Overall, with generally strong cash-generative businesses and no significant long-term debt maturities before 2020, we believe we have, and will maintain, a solid liquidity position.
As previously reported in 2018, following receipt of information regarding potential improper payments being made by third party sales representatives of our Refining Solutions business, within our Catalysts segment, we promptly retained outside counsel and forensic accountants to investigate potential violations of the Company’s Code of Conduct, the Foreign Corrupt Practices Act and other potentially applicable laws. Based on this internal investigation, we have voluntarily self-reported potential issues relating to the use of third party sales representatives in our Refining Solutions business, within our Catalysts segment, to the U.S. Department of Justice (“DOJ”), the SEC, and the Dutch Public Prosecutor (“DPP”), and are cooperating with the DOJ, the SEC, and DPP in their review of these matters. In connection with our internal investigation, we have implemented, and are continuing to implement, appropriate remedial measures.
At this time, we are unable to predict the duration, scope, result or related costs associated with any investigations by the DOJ, the SEC, or DPP. We are unable to predict what, if any, action may be taken by the DOJ, the SEC, or DPP, or what penalties or remedial actions they may seek to impose. Any determination that our operations or activities are not in compliance with existing laws or regulations could result in the imposition of fines, penalties, disgorgement, equitable relief or other losses. We do not believe, however, that any fines, penalties, disgorgement, equitable relief or other losses would have a material adverse effect on our financial condition or liquidity.
We had cash and cash equivalents totaling $317.8 million at September 30, 2019, of which $296.0 million is held by our foreign subsidiaries. This cash represents an important source of our liquidity and is invested in bank accounts or money market investments with no limitations on access. The cash held by our foreign subsidiaries is intended for use outside of the U.S. We anticipate that any needs for liquidity within the U.S. in excess of our cash held in the U.S. can be readily satisfied with borrowings under our existing U.S. credit facilities or our commercial paper program.

41

Summary of Critical Accounting Policies and Estimates
Effective January 1, 2019, we adopted ASU 2016-12, “Leases.” As a result, we have updated our lease accounting policy, see Item 1 Financial Statements – Note 1, “Basis of Presentation,” for additional details. There have been no other significant changes in our critical accounting policies and estimates from the information we provided in our Annual Report on Form 10-K for the year ended December 31, 2018.
Recent Accounting Pronouncements
For a description of recent accounting pronouncements, see Item 1 Financial Statements – Note 17, “Recently Issued Accounting Pronouncements.”
Item 3.
Quantitative and Qualitative Disclosures About Market Risk.
There have been no significant changes in our interest rate risk, foreign currency exchange rate exposure, marketable securities price risk or raw material price risk from the information we provided in our Annual Report on Form 10-K for the year ended December 31, 2018.
We had variable interest rate borrowings of $546.7 million outstanding at September 30, 2019, bearing a weighted average interest rate of 2.25% and representing approximately 28% of our total outstanding debt. A hypothetical 10% change (approximately 23 basis points) in the interest rate applicable to these borrowings would change our annualized interest expense by approximately $1.2 million as of September 30, 2019. We may enter into interest rate swaps, collars or similar instruments with the objective of reducing interest rate volatility relating to our borrowing costs.
Our financial instruments which are subject to foreign currency exchange risk consist of foreign currency forward contracts with an aggregate notional value of $1.11 billion and with a fair value representing a net liability position of $1.7 million at September 30, 2019. Fluctuations in the value of these contracts are generally offset by the value of the underlying exposures being hedged. We conducted a sensitivity analysis on the fair value of our foreign currency hedge portfolio assuming an instantaneous 10% change in select foreign currency exchange rates from their levels as of September 30, 2019, with all other variables held constant. A 10% appreciation of the U.S. Dollar against foreign currencies that we hedge would result in a decrease of approximately $34.0 million in the fair value of our foreign currency forward contracts. A 10% depreciation of the U.S. Dollar against these foreign currencies would result in an increase of approximately $24.9 million in the fair value of our foreign currency forward contracts. The sensitivity of the fair value of our foreign currency hedge portfolio represents changes in fair values estimated based on market conditions as of September 30, 2019, without reflecting the effects of underlying anticipated transactions. When those anticipated transactions are realized, actual effects of changing foreign currency exchange rates could have a material impact on our earnings and cash flows in future periods.

Item 4.
Controls and Procedures.
Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we conducted an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended, or the Exchange Act), as of the end of the period covered by this report. Based on this evaluation, our principal executive officer and principal financial officer concluded that, as of the end of the period covered by this report, our disclosure controls and procedures are effective to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.
The Company has begun the implementation of a new enterprise resource platform system to increase the overall efficiency and productivity of our processes, which will result in changes in our internal control over financial reporting (as such term is defined in Exchange Act Rule 13a-15(f)) throughout the implementation process in 2019. There have been no other changes during the third quarter ended September 30, 2019 to our internal control over financial reporting that materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

42
Table of Contents

PART II. OTHER INFORMATION
Item 1.
Legal Proceedings.
We are involved from time to time in legal proceedings of types regarded as common in our business, including administrative or judicial proceedings seeking remediation under environmental laws, such as Superfund, products liability, breach of contract liability and premises liability litigation. Where appropriate, we may establish financial reserves for such proceedings. We also maintain insurance to mitigate certain of such risks. Additional information with respect to this Item 1 is contained in Note 9 to the Notes to the Condensed Consolidated Financial Statements in this Quarterly Report on Form 10-Q.
Item 1A.
Risk Factors.
While we attempt to identify, manage and mitigate risks and uncertainties associated with our business to the extent practical under the circumstances, some level of risk and uncertainty will always be present. The risk factors set forth in Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2018 describes some of the risks and uncertainties associated with our business. These risks and uncertainties have the potential to materially affect our results of operations and our financial condition. We do not believe that there have been any material changes to the risk factors previously disclosed in our Annual Report on Form 10-K for the year ended December 31, 2018.
Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds.

NONE
Item 6.
Exhibits.
(a) Exhibits

 
 
 
 

 
 
 
 

 

 
 
 

 

 
 
 

 
 
 
 

 
 
 
 

 
 
 
 

 
 
 
 
101

 
Interactive Data File (Quarterly Report on Form 10-Q, for the quarterly period ended September 30, 2019, furnished in XBRL (eXtensible Business Reporting Language)).
Attached as Exhibit 101 to this report are the following documents formatted in XBRL: (i) the Consolidated Statements of Income for the three and nine months ended September 30, 2019 and 2018, (ii) the Consolidated Statements of Comprehensive Income for the three and nine months ended September 30, 2019 and 2018, (iii) the Condensed Consolidated Balance Sheets at September 30, 2019 and December 31, 2018, (iv) the Consolidated Statements of Changes in Equity for the three and nine months ended September 30, 2019 and 2018, (v) the Condensed Consolidated Statements of Cash Flows for the nine months ended September 30, 2019 and 2018 and (vi) the Notes to the Condensed Consolidated Financial Statements.

43
Table of Contents

SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
 
 
 
 
 
 
 
 
 
ALBEMARLE CORPORATION
 
 
 
(Registrant)
 
 
 
 
Date:
November 6, 2019
 
By:
 
/S/    SCOTT A. TOZIER        
 
 
 
 
 
Scott A. Tozier
 
 
 
 
 
Executive Vice President and Chief Financial Officer
 
 
 
 
 
(principal financial officer)

44
Exhibit 10.1



SYNDICATED FACILITY AGREEMENT
dated as of August 14, 2019,
among
ALBEMARLE CORPORATION,
ALBEMARLE FINANCE COMPANY B.V.,
ALBEMARLE NEW HOLDING GMBH,
ALBEMARLE WODGINA PTY LTD,
THE LENDERS PARTY HERETO
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
                                                           
JPMORGAN CHASE BANK, N.A.
and
BOFA SECURITIES, INC.,
as Joint Lead Arrangers and Joint Bookrunners
BANK OF AMERICA, N.A.,
as Syndication Agent
WELLS FARGO BANK, NATIONAL ASSOCIATION,
MUFG BANK, LTD.,
MIZUHO BANK, LTD.,
HSBC BANK USA, NATIONAL ASSOCIATION,
SUMITOMO MITSUI BANKING CORPORATION
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents







TABLE OF CONTENTS
ARTICLE I

Definitions and Accounting Terms
Defined Terms
1

Other Interpretive Provisions
26

Accounting Terms
27

Rounding
28

References to Agreements and Laws
29

Blocking Regulation
29

Interest Rate; LIBOR Notification
29

Dutch Terms
30

ARTICLE II

The Commitments and Loans
Loans
30

Borrowings, Conversions and Continuations of Loans
30

[Reserved.]
32

[Reserved.]
32

Optional and Mandatory Prepayments
32

Termination or Reduction of Commitments
33

Repayment of Loans
34

Interest
34

Fees
35

Computation of Interest and Fees
35

Evidence of Debt
36

Payments Generally; Administrative Agent’s Clawback
36

Sharing of Payments
38

[Reserved.]
39

Extension of Maturity Date
39

[Reserved.]
41

Defaulting Lenders
41


i

ARTICLE III

Taxes, Yield Protection and Illegality
Taxes
41

Illegality
46

Inability to Determine Rates
47

Increased Cost and Reduced Return; Capital Adequacy and Liquidity
48

Funding Losses
50

Matters Applicable to all Requests for Compensation
50

Survival
51

ARTICLE IV

Guaranty
The Guaranty
51

Obligations Unconditional
51

Reinstatement
52

Certain Additional Waivers
53

Remedies
53

Guarantee of Payment; Continuing Guarantee
53

ARTICLE V

Conditions Precedent
Conditions to the Closing Date
53

Conditions to Each Funding Date
55

ARTICLE VI

Representations and Warranties

ii

Existence, Qualification and Power
56

Authorization; No Contravention
56

Governmental Authorization; Other Consents
57

Binding Effect
57

Financial Statements; No Material Adverse Change
57

Litigation
58

No Default
58

Ownership of Property; Liens
58

Environmental Compliance
58

Insurance
59

Taxes
59

ERISA Compliance
59

Margin Regulations; Investment Company Act
60

Disclosure
60

Compliance with Laws
61

Intellectual Property; Licenses, Etc
61

Subsidiaries
61

Solvency
61

Certain Matters with Respect to Borrowers
61

OFAC; Anti-Corruption Laws
62

EEA Financial Institutions
63

ARTICLE VII

Affirmative Covenants
Financial Statements
63

Certificates; Other Information
64

Notices
66

Binding Effect
66

Payment of Obligations
66

Maintenance of Properties
67

Maintenance of Insurance
67

Compliance with Laws
67

Books and Records
67

Inspection Rights
67

Use of Proceeds
68



iii

ARTICLE VIII

Negative Covenants
Liens
68

Mergers, Dispositions, Etc
72

Change in Nature of Business
72

Transactions with Affiliates
73

Use of Proceeds
73

Financial Covenant
73

Subsidiary Indebtedness
73

Sanctions
74

Anti-Corruption Laws
75

ARTICLE IX

Events of Default and Remedies
Events of Default
75

Remedies Upon Event of Default
77

Application of Funds
78

ARTICLE X

Administrative Agent
Appointment and Authority
78

Rights as a Lender
79

Exculpatory Provisions
79

Reliance by Administrative Agent
80

Delegation of Duties
81

Resignation of Administrative Agent
81

Non-Reliance on Administrative Agent and Other Lenders
82

No Other Duties, Etc
82

Administrative Agent May File Proofs of Claim
83

ERISA Matters
83

ARTICLE XI

Miscellaneous

iv

Amendments, Etc
85

Notices; Effectiveness; Electronic Communication
87

No Waiver; Cumulative Remedies; Enforcement
89

Expenses; Indemnity; Damage Waiver
90

Concerning Several Liability of the Borrowers
92

Payments Set Aside
92

Successors and Assigns
93

Confidentiality
98

Set-off
100

Interest Rate Limitation
100

Counterparts
100

Integration; Effectiveness
100

Survival of Representations and Warranties
101

Severability
101

Tax Forms
102

Replacement of Lenders
103

USA PATRIOT Act Notice
104

Governing Law; Jurisdiction; Etc
104

Waiver of Right to Trial by Jury
105

Judgment Currency
105

No Advisory or Fiduciary Responsibility
106

Electronic Execution of Assignments and Certain Other Documents
107

Appointment of Company as Agent
107

Appointment of Agent for Service of Process; Waiver of Immunity
107

Acknowledgement and Consent to Bail-In of EEA Financial Institutions
108

SCHEDULES
2.01    Commitments
6.09    Environmental Matters
6.17    Subsidiaries
6.20    Certain Anti-Corruption Laws Matters
8.01    Existing Liens
11.02    Eurocurrency and Domestic Lending Offices; Notice Addresses
EXHIBITS
A    Form of Loan Notice
B    Form of Note
C    Form of Compliance Certificate
D    Form of Assignment and Assumption


v


SYNDICATED FACILITY AGREEMENT dated as of August 14, 2019, among ALBEMARLE CORPORATION, a Virginia corporation (the “Company”), ALBEMARLE FINANCE COMPANY B.V., a besloten vennootschap organized under the laws of the Netherlands, with its official seat in Amsterdam, the Netherlands, and registered with the Dutch Chamber of Commerce under number 71812075 (“Albemarle Finance”), ALBEMARLE NEW HOLDING GMBH, a Gesellschaft mit beschränkter Haftung incorporated under the laws of the Federal Republic of Germany (“Albemarle Germany”), ALBEMARLE WODGINA PTY LTD (ACN 630 509 303), a proprietary limited company incorporated under the laws of Australia (“Albemarle Wodgina”), the Lenders party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
RECITALS
The Company has requested that the Lenders provide a term loan facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
The term loan facility and the transactions contemplated hereunder are in the corporate interests of the Company and the Borrowers.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I

Definitions and Accounting Terms
SECTION 1.01.    Defined Terms.
As used in this Agreement, the following terms shall have the meanings set forth below:
“Acquisition” by any Person means the acquisition by such Person, in a single transaction or in a series of related transactions, of all or substantially all of the assets of, or of a business unit or division of, another Person or at least a majority of the Securities having ordinary voting power for the election of directors, managing general partners or the equivalent of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.
“Acquisition Agreement” means that certain Asset Sale and Share Subscription Agreement, dated as of December 14, 2018, as amended by that certain Amendment Deed dated as of August 1, 2019, among the Company, Albemarle Wodgina, the Seller and Mineral Resources Limited (ACN 118 549 910), an Australian public company limited by shares.
“Acquisition Agreement Closing Date” means the date on which the transactions contemplated by the Acquisition Agreement are consummated in accordance with its terms.


“Adjusted LIBO Rate” means, with respect to any LIBOR Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent” means JPMorgan in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. Unless the context requires otherwise, the term “Administrative Agent” shall include any Affiliate of JPMorgan through which it shall perform any of its obligations in such capacity hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in the form provided by the Administrative Agent.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the generality of the foregoing, for purposes of determining Affiliates of a member of the Consolidated Group, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 35% or more of the Securities having ordinary voting power for the election of directors, managing general partners or the equivalent of such Person.
“Agent Parties” has the meaning specified in Section 11.02.
“Aggregate Commitments” means, at any time, the aggregate amount of Commitments of all the Lenders in effect at such time. The amount of the Aggregate Commitments in effect on the Closing Date is $1,200,000,000.
“Agreement” means this Syndicated Facility Agreement.
“Albemarle Finance” has the meaning specified in the preamble hereto.
“Albemarle Germany” has the meaning specified in the preamble hereto.
“Albemarle Wodgina” has the meaning specified in the preamble hereto.
“Applicable Foreign Obligor Documents” has the meaning specified in Section 6.19.
“Applicable Rate” means, from time to time, the following percentages per annum, based upon the Debt Rating, as set forth below:


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Pricing
Level
Debt Rating
S&P/Moody’s/ Fitch
Applicable Rate for Eurocurrency Rate Loans
Applicable Rate for Base Rate Loans
 
 
 
 
1
A-/A3/A- or better
0.875%
0.000%
2
BBB+/Baal/BBB+
1.000%
0.000%
3
BBB/Baa2/BBB
1.125%
0.125%
4
BBB-/Baa3/BBB-
1.375%
0.375%
5
worse than or equal to BB+/Ba1/BB+
1.625%
0.625%
For purposes of the foregoing, (a) if each of Moody’s, S&P and Fitch shall have a Debt Rating in effect and the Debt Ratings established by such rating agencies shall fall within different Levels in the foregoing table, the Applicable Rate shall be based on the Level in which two of such Ratings shall fall or, if there shall be no such Level, on the Level in which the second highest of the three Debt Ratings shall fall; (b) if only two of S&P, Moody’s and Fitch shall have Debt Ratings in effect, then the Applicable Rate shall be based on the Level in which the higher Debt Rating shall fall unless one of such Debt Ratings is two or more Levels lower than the other, in which case the Applicable Rate shall be based on the Level next above that of the lower of the two Debt Ratings; (c) if only one of S&P, Moody’s and Fitch shall have a Debt Rating in effect, then the Applicable Rate shall be based on the Level next below that in which such Debt Rating shall fall; and (d) if none of Moody’s, S&P and Fitch shall have a Debt Rating in effect, then the Applicable Rate shall be based on Level 5. If the rating system of S&P, Moody’s or Fitch shall change, the Company and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined as provided above as if the affected rating agency did not have a Debt Rating in effect. For the avoidance of doubt, Level 1 in the table above is the “highest” Level and Level 5 is the “lowest” Level.
Each change in the Applicable Rate, if any, resulting from a publicly announced change in a Debt Rating shall be effective, in the case of an upgrade, during the period commencing on the date of delivery by the Company to the Administrative Agent of notice thereof pursuant to Section 7.03(c) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
Determinations by the Administrative Agent of the appropriate Level shall be conclusive absent manifest error.
“Approved Fund” means any Fund 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.
“Arrangers” means JPMorgan and BofA Securities, Inc., in their capacities as joint lead arrangers and joint bookrunners for the term loan facility provided for herein.

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“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required by Section 11.07(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“Associate” has the meaning specified in section 128F(9) of the Income Tax Assessment Act 1936 (Cth) (Australia).
“Attributable Principal Amount” means (a) in the case of capital leases, the amount of capital lease obligations determined in accordance with GAAP, (b) in the case of Synthetic Leases, an amount determined by capitalization of the remaining lease payments thereunder as if it were a capital lease determined in accordance with GAAP, (c) in the case of Securitization Transactions, the outstanding principal amount of the financing thereunder, after taking into account reserve accounts and making appropriate adjustments, as determined by the Administrative Agent in its reasonable judgment and (d) in the case of any Sale and Lease Back Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease.
“Availability Period” means the period from and including the Closing Date to, but excluding, the Commitment Outside Date.
“Average COF Rate” has the meaning specified in Section 3.03.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% per annum and (c) the Adjusted LIBO Rate on such day (or, if such day is not a Business Day, the immediately preceding Business Day) for a deposit in Dollars with a maturity of one month plus 1% per annum. For purposes of clause (c) above, the Adjusted LIBO Rate for any day shall be based on the applicable Screen Rate at approximately 11:00 a.m., London time, on such day for deposits in Dollars with a maturity of one month (or, if the applicable Screen Rate is not available for a maturity of one month with respect to Dollars but is available for periods both longer and shorter than such period, the Interpolated Screen Rate as of such time). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03, then, for purposes of clause (c) above, the Adjusted LIBO Rate shall be deemed to be zero.
“Base Rate Borrowing” means a Borrowing comprised of Base Rate Loans.

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“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“Borrower Materials” has the meaning specified in Section 7.02.
“Borrowers” means Albemarle Finance, Albemarle Germany and Albemarle Wodgina.
“Borrowing” means Loans of the same Type, in the same currency and to the same Borrower made, converted or continued on the same date and, in the case of Eurocurrency Rate Loans, having the same Interest Period.
“Borrowing Minimum” means (a) in the case of a Borrowing denominated in Dollars, $5,000,000 and (b) in the case of a Borrowing denominated in Euros, €5,000,000.
“Borrowing Multiple” means (a) in the case of a Borrowing denominated in Dollars, $1,000,000 and (b) in the case of a Borrowing denominated in Euros, €1,000,000.
“Business Day” means any day that is not a Saturday, a Sunday or any other day on which commercial banks in New York City are authorized or required by applicable Law to remain closed; provided that (a) when used in connection with a LIBOR Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market or any day on which banks in London are not open for general business, (b) when used in connection with a EURIBOR Loan, the term “Business Day” shall also exclude any day that is not a TARGET Day or on which banks in London are not open for general business and (c) when used in connection with any payment by Albemarle Wodgina, the term “Business Day” shall also exclude any day on which commercial banks in Perth, Australia are authorized or required by applicable Law to remain closed.
“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law 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 Dodd-Frank Wall 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 Committee on Banking Supervision (or any successor or similar authority) or the United

5


States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.
“Change of Control” means an event or series of events by which: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) acquires directly or indirectly, beneficially or of record, shares representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Company or any Person directly or indirectly Controlling the Company; (b) a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board of directors on the Closing Date, (ii) whose election or nomination to that board of directors or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least two-thirds of that board of directors or equivalent governing body or (iii) whose election or nomination to that board of directors or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least two-thirds of that board of directors or equivalent governing body; or (c) the Company fails to directly or indirectly own and control all of the outstanding capital stock (or other equity Securities) of each Borrower.
“Closing Date” means the date on which the conditions specified in Section 5.01 are satisfied (or waived in accordance with Section 11.01).
“COF Rate” has the meaning specified in Section 3.03.
“Commitment” means, as to each Lender, the obligation of such Lender to make Loans hereunder, expressed as an amount representing the maximum sum of the Dollar Equivalents of the principal amounts of the Loans to be made by such Lender hereunder, as such amount is set forth with respect to such Lender as its “Commitment” on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, and as such amount may be adjusted from time to time in accordance with this Agreement.
“Commitment Outside Date” means the date that is 364 days after the Closing Date.
“Company” has the meaning specified in the preamble hereto.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Consolidated EBITDA” means, for any period, for the Consolidated Group, an amount equal to the sum of (a) Consolidated Net Income for such period plus (b) the following, in each case (other than in the case of clause (x) below) to the extent deducted in calculating such Consolidated Net Income, without duplication: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income taxes payable by the Consolidated Group for such period, (iii) the amount of depreciation and amortization expense for such period, (iv) non-cash expenses for such period (excluding any non-cash expense to the extent that it represents an accrual of or reserve for cash payments in any future period), (v) non-cash goodwill impairment charges for such period, (vi) any non‑cash loss for such period attributable to the mark‑to‑market adjustments in the valuation of pension liabilities (to the extent the cash impact resulting from such loss has not been realized) in accordance with FASB ASC 715, (vii) any fees,

6


expenses or charges for such period (other than depreciation or amortization expense) related to any Acquisition, Disposition, issuance of equity interests, other transactions (excluding intercompany transactions) permitted by Section 8.02, or the incurrence of Indebtedness not prohibited by this Agreement (including any refinancing or amendment thereof) (in each case, whether or not consummated), including, but not limited to, such fees, expenses or charges related to this Agreement and the other Loan Documents and any amendment or other modification of this Agreement or the other Loan Documents, (viii) any expense for such period to the extent that a corresponding amount is received during such period in cash by the Company or any of its Subsidiaries under any agreement providing for indemnification or reimbursement of such expenses, (ix) any expense with respect to liability or casualty events or business interruption to the extent reimbursed to the Company or any of its Subsidiaries during such period by third party insurance, and (x) the amount of dividends, distributions or other payments (including any ordinary course dividend, distribution or other payment) that are actually received in cash (or converted into cash) for such period by a member of the Consolidated Group from any Person that is not a member of the Consolidated Group or otherwise in respect of any unconsolidated investment, minus (c) to the extent included in calculating such Consolidated Net Income, (i) non-cash income for such period (excluding any non-cash income to the extent that it represents cash receipts in any future period) and (ii) any non‑cash gains for such period attributable to the mark‑to‑market adjustments in the valuation of pension liabilities in accordance with FASB ASC 715, all as determined in accordance with GAAP.
“Consolidated Funded Debt” means Funded Debt of the Consolidated Group determined on a consolidated basis in accordance with GAAP.
“Consolidated Group” means the Company and its consolidated Subsidiaries as determined in accordance with GAAP.
“Consolidated Interest Charges” means, for any period, for the Consolidated Group, all interest expense, including the amortization of debt discount and premium, the interest component under capital leases and the implied interest component under Securitization Transactions, in each case on a consolidated basis determined in accordance with GAAP.
“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Debt as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters ending on such date.
“Consolidated Net Income” means, for any period, for the Consolidated Group, the sum, without duplication, of (a) net income of the Consolidated Group (excluding items reported as nonrecurring or unusual in the consolidated financial statements of the Company and the Consolidated Group and related tax effects) for such period minus (b) to the extent included in the amount determined pursuant to clause (a) above, the income of any Subsidiary to the extent the payment of such income in the form of a distribution or repayment of any Indebtedness to the Company or a Subsidiary is not permitted, whether on account of any Organization Document restriction, any Contractual Obligation or any Law applicable to such Subsidiary, all as determined in accordance with GAAP.

7


“Consolidated Net Tangible Assets” means, as of any date of determination, the Consolidated Total Assets less goodwill and intangibles (other than intangibles arising from, or relating to, intellectual property, licenses or permits (including, but not limited to, emissions rights) of the Consolidated Group), in each case calculated in accordance with GAAP; provided, that in the event that the Company or any of its Subsidiaries acquires any assets in connection with the Acquisition by the Company and its Subsidiaries of another Person subsequent to the date as of which the Consolidated Net Tangible Assets is being calculated (the “Balance Sheet Date”) but prior to the event for which the calculation of the Consolidated Net Tangible Assets is made, then the Consolidated Net Tangible Assets shall be calculated giving pro forma effect to such Acquisition of assets, as if the same had occurred on or prior to the Balance Sheet Date.
“Consolidated Total Assets” means, as of any date of determination, the total consolidated assets of the Consolidated Group, as shown on the most recent balance sheet required to be delivered pursuant to Section 7.01 (or, prior to the first such delivery, referred to in Section 6.05).
“Contractual Obligation” means, as to any Person, any provision of any Security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate”.
“Debt Rating” means, as of any date of determination, the public rating as determined by any of S&P, Moody’s or Fitch of the Company’s non-credit-enhanced, senior unsecured long-term debt.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, the bankruptcy or insolvency laws of the Netherlands (including the Dutch Bankruptcy Act (Faillissementswet)), the insolvency laws of Germany (including the German Insolvency Code (Insolvenzordnung)), the Insolvency Regulation and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, Australia, the Netherlands, Germany or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Deed of Cross Security” means that certain Deed of Cross Security executed on or about the Acquisition Agreement Closing Date by the Seller, Albemarle Wodgina and Wodgina Lithium Operations Pty Ltd, an Australian proprietary limited company, and including each other similar deed of charge executed by a new participant or joint venturer with respect to the Wodgina Lithium Joint Venture.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to the sum of (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to any principal of or interest on a Eurocurrency Rate Loan, the Default Rate shall

8


be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum.
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s 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, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Company or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s 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) has failed, within three Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in such Lender or any direct or indirect parent company thereof by a 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) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company and each Lender.
“Designated Jurisdiction” means, at any time, any country, region or territory that itself, at such time is the subject of any Sanction.
“Disposition” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by any Person, 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.

9


“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, as of any date of determination, (a) with respect to the principal amount of any Loan denominated in Dollars, such amount, and (b) with respect to the principal amount of any Loan denominated in Euros, the equivalent in Dollars of such amount, determined by the Administrative Agent pursuant to Section 1.02(e) using the Exchange Rate at the time in effect under the provisions of such Section.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
“EEA Financial Institution” 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 in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA Resolution Authority” 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.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 11.07(b)(iii) and 11.07(b)(v) (subject to such consents, if any, as may be required under Section 11.07(b)(iii)).
“Environmental Laws” means any legally binding and applicable statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement or restriction imposed by any federal, state, local, and foreign Governmental Authority relating to human health and the natural environment.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company or any of its Subsidiaries resulting from or caused by (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) the release or threatened release of any Hazardous Materials into the natural environment or (d) any contract, agreement or other consensual arrangement pursuant to which environmental liability is assumed or imposed with respect to any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).

10


“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EURIBO Rate” means, with respect to any Loan denominated in Euros for any Interest Period, the applicable Screen Rate as of the Specified Time on the Quotation Day.
“EURIBOR Borrowing” means a Borrowing comprised of EURIBOR Loans.
“EURIBOR Loan” means a Loan that bears interest based on the EURIBO Rate. All EURIBOR Loans shall be denominated in Euros.
“Euro” and “EUR” mean the single currency of the Participating Member States.
“Eurocurrency Rate Borrowing” means a Borrowing comprised of Eurocurrency Rate Loans.
“Eurocurrency Rate Loan” means a LIBOR Loan or a EURIBOR Loan.
“Event of Default” has the meaning specified in Section 9.01.
“Exchange Rate” means, as of any date of determination, for purposes of determining the Dollar Equivalent of Euro, the rate at which Euros may be exchanged into Dollars at the time of determination on such day as last provided (either by publication or as may otherwise be provided to the Administrative Agent) by the applicable Reuters source on the Business Day (determined based on New York City time) immediately preceding such date of determination. In the event that Reuters ceases to provide such rate of exchange or such rate does not appear on the applicable Reuters source, the Exchange Rate shall be determined by reference to such other publicly available information service for displaying such rate of exchange at such time as shall be selected by the Administrative Agent from time to time in its reasonable discretion.
“Exchange Rate Date” means (a) with respect to any Loan denominated in Euros, each of (i) the date of the commencement of the initial Interest Period therefor and (ii) the date of the commencement of each subsequent Interest Period therefor and (b) if an Event of Default has occurred and is continuing, any Business Day designated as an Exchange Rate Date by the Administrative Agent in its sole discretion.

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“Excluded Taxes” means (a) in the case of the Administrative Agent and each Lender, Taxes imposed on or measured by its income or gross receipts, branch profits Taxes, and franchise Taxes imposed on it, by any jurisdiction (i) as a result of the Administrative Agent or such Lender, as the case may be, being organized under the Laws of or maintaining a lending office in such jurisdiction or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any withholding Taxes that are imposed by the Netherlands, Australia or Germany with respect to the Loans on amounts payable to or for the account of such Lender under any Loan Document pursuant to a Law in effect on the date on which such Lender becomes a party to this Agreement or such Lender changes its Lending Office, except, in each case, to the extent that such Lender (or its assignor, if any) was entitled, at the time of the change in its Lending Office (or of the assignment), to receive additional amounts from the Loan Parties with respect to such Taxes pursuant to Section 3.01, (c) any withholding Taxes imposed under FATCA, (d) any Taxes attributable to a failure by a Lender to comply with Section 11.15 and (e) in the case of a Lender, any withholding Taxes imposed as a result of such Lender becoming an Offshore Associate of Albemarle Wodgina after becoming a Lender hereunder.
“Existing Maturity Date” has the meaning specified in Section 2.15(a).
“Extending Lender” has the meaning specified in Section 2.15(b).
“Extension Closing Date” has the meaning specified in Section 2.15(a).
“Extension Lender Response Date” has the meaning specified in Section 2.15(b).
“Extension Upfront Fee” means, with respect to any Lender, a fee in the amount equal to the product of (a) (i) 0.02% multiplied by (ii) (A) the number of days in the period from and including the applicable Existing Maturity Date to but excluding the date to which the applicable Maturity Date is requested to be extended pursuant to Section 2.15(a) divided by (B) 360 multiplied by (b) the sum of the Dollar Equivalents of the principal amounts of the Loans of such Lender.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue 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 Internal Revenue 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 Internal Revenue Code.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depository institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if such rate would be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.

12


“Financial Covenant” means the covenant set forth in Section 8.06.
“Fitch” means Fitch Ratings, Inc., or any successor thereto.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funded Debt” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or long-term (including the Loans), and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, including convertible debt instruments;
(b) all purchase money indebtedness (including indebtedness and obligations in respect of conditional sales and title retention arrangements, except for customary conditional sales and title retention arrangements with suppliers that are entered into in the ordinary course of business) and all indebtedness and obligations in respect of the deferred purchase price of property or services (other than trade accounts payable incurred in the ordinary course of business and payable on customary trade terms);
(c) all contingent obligations and unreimbursed drawings under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(d) the Attributable Principal Amount of capital leases and Synthetic Leases;
(e) the Attributable Principal Amount of Securitization Transactions;
(f) all preferred stock and comparable equity interests providing for mandatory redemption, sinking fund or other like payments prior to 91 days after the latest Maturity Date then in effect;
(g) Guarantees in respect of Funded Debt of another Person; and
(h) any Funded Debt described in clauses (a) through (g) above of any partnership or joint venture or other similar entity in which such Person is a general partner or joint venturer, and, as such, has personal liability for such obligations, but only to the extent there is recourse to such Person for payment thereof.
For purposes hereof, the amount of Funded Debt shall be determined based on the outstanding principal amount in the case of borrowed money indebtedness under clause (a) and purchase money indebtedness and the deferred purchase obligations under clause (b), based on the maximum amount available to be drawn in the case of letter of credit obligations and the other obligations under clause (c), and based on the outstanding principal amount of Funded Debt that is

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the subject of the Guarantees in the case of Guarantees under clause (g) or, if less, the amount expressly guaranteed.
“Funding Date” means, with respect to any Loan or any Borrowing, the date on which such Loan, or the Loans comprising such Borrowing, is or are made pursuant to Section 2.01.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Financial Accounting Standards Board Accounting Standards Codification, consistently applied and, subject to Section 1.03(a), as in effect from time to time.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranty” means the Guarantee of the Obligations provided by the Company pursuant to Article IV.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes regulated pursuant to any Environmental Law.

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“Immaterial Subsidiary” means any Subsidiary of the Company that neither (a) owns assets with an aggregate book value in excess of $25,000,000 nor (b) has annual revenues in excess of $25,000,000.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all Funded Debt;
(b) net obligations under any Swap Contract;
(c) Guarantees in respect of Indebtedness of another Person; and
(d) any Indebtedness described in clauses (a) through (c) above of any partnership or joint venture or other similar entity in which such Person is a general partner or joint venturer, and, as such, has personal liability for such obligations, but only to the extent there is recourse to such Person for payment thereof.
For purposes hereof, the amount of Indebtedness shall be determined based on Swap Termination Value in the case of net obligations under Swap Contracts under clause (c) and based on the outstanding principal amount of Indebtedness that is the subject of the Guarantees in the case of Guarantees under clause (d) or, if less, the amount expressly guaranteed.
“Indemnified Taxes” means (a) Taxes other than Excluded Taxes and (b) to the extent not described in clause (a) above, Other Taxes.
“Indemnitee” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.08.
“Insolvency Regulation” means Regulation (EU) No 2015/848 of the European Parliament and of the Council of the European Union of 20 May 2015 on insolvency proceedings (recast).
“Interest Payment Date” means (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date applicable to such Loan; provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date applicable to such Loan.
“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date seven days thereafter or on the numerically corresponding day in the calendar month that is one, two (other than in the case of EURIBOR Loans), three or six months thereafter, as selected by the applicable Borrower (or the Company on its behalf) in the applicable Loan Notice; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, other than with respect to an

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Interest Period of seven days, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period, other than any Interest Period of seven days, 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; and
(c) no Interest Period for any Loan shall extend beyond the Maturity Date applicable to such Loan.
“Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended.
“Interpolated Screen Rate” means, with respect to any Eurocurrency Rate Loan for any Interest Period or for purposes of clause (c) of the definition of “Base Rate”, a rate per annum that results from interpolating on a linear basis between (a) the applicable Screen Rate for the longest maturity for which such Screen Rate is available that is shorter than the applicable period and (b) the applicable Screen Rate for the shortest maturity for which such Screen Rate is available that is longer than the applicable period, in each case as of the time the Interpolated Screen Rate is required to be determined in accordance with the other provisions hereof; provided that the Interpolated Screen Rate shall in no event be less than zero.
“IRS” means the United States Internal Revenue Service.
“JPMorgan” means JPMorgan Chase Bank, N.A., and its successors.
“Laws” means, collectively, (a) all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and (b) all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case under this clause (b), having the force of law.
“Lender” means each of the Persons identified on Schedule 2.01 and any other Person that becomes a Lender pursuant to an Assignment and Assumption, other than any such Person that shall have ceased to be a party hereto pursuant to an Assignment and Assumption.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
“LIBO Rate” means, with respect to any LIBOR Loan for any Interest Period, the applicable Screen Rate as of as of the Specified Time on the Quotation Day.

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“LIBOR Borrowing” means a Borrowing comprised of LIBOR Loans.
“LIBOR Loan” means a Loan that bears interest based on the Adjusted LIBO Rate. All LIBOR Loans shall be denominated in Dollars.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing).
“Loan” means a loan made by a Lender to a Borrower pursuant to Section 2.01.
“Loan Documents” means this Agreement and each Note.
“Loan Notice” means a notice of (a) a borrowing of Loans, (b) a conversion of any Borrowing from one Type to another Type or (c) a continuation of any Eurocurrency Rate Borrowing, in each case, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent, appropriately completed and signed by a Responsible Officer of the applicable Borrower (or the Company on its behalf).
“Loan Parties” means the Company and the Borrowers.
“Local Time” means (a) with respect to a Loan or Borrowing denominated in Dollars or with respect to any payment not relating to the principal of or interest on any Loan or Borrowing (including any payment of fees hereunder), New York City time and (b) with respect to a Loan or Borrowing denominated in Euros, London time.
“Mandatory Restrictions” has the meaning specified in Section 1.06.
“Material Adverse Effect” means a material adverse change in, or a material adverse effect upon, (a) the operations, business, properties, liabilities (actual or contingent) or financial condition of the Consolidated Group taken as a whole; (b) the ability of the Company or any Borrower to perform its material obligations under any Loan Document to which it is a party; or (c) the legality, validity, binding effect or enforceability against the Company or any Borrower of any Loan Document to which it is a party.
“Maturity Date” means, with respect to any Loan, the date that is 364 days after the Funding Date with respect to such Loan; provided that if any Lender shall have consented to the extension of the Maturity Date with respect to the Loans held by such Lender pursuant to Section 2.15, then as to such Loans the “Maturity Date” shall be the final scheduled maturity date as determined pursuant to such Section; provided further that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Maximum Rate” has the meaning specified in Section 11.10.
“MNPI” has the meaning specified in Section 7.02.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

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“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Non-Extending Lender” has the meaning specified in Section 2.15(b).
“Note” means a promissory note made by a Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit B.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Obligations” means, without duplication, (a) the Loans and (b) all advances to, and debts, liabilities, obligations, covenants and duties of, the Company or any Borrower arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Company or any Borrower of any proceeding under any Debtor Relief Laws naming it as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Offshore Associate” means an Associate (a) that is a non-resident of Australia and does not become a Lender or receive a payment in carrying on a business in Australia at or through a permanent establishment of such Associate in Australia or (b) that is a resident of Australia and becomes a Lender or receives a payment in carrying on a business in a country outside Australia at or through a permanent establishment of such Associate in that country, and, in either case, which does not become a Lender and receive payment in the capacity of a clearing house, custodian, funds manager or responsible entity of a registered scheme.
“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing

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or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” means, with respect to any Lender or the Administrative Agent, Taxes imposed as a result of a present or former connection between such Lender or the Administrative Agent, as the case may be, and the jurisdiction imposing such Tax (other than connections arising from such Lender or the Administrative Agent, as the case may be, 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).
“Other Taxes” has the meaning specified in Section 3.01(b).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Participant” has the meaning specified in Section 11.07(d).
“Participant Register” has the meaning specified in Section 11.07(d).
“Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with the legislation of the European Union relating to Economic and Monetary Union.
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Company or, with respect to any such plan that is subject to Section 412 of the Internal Revenue Code or Title IV of ERISA, any ERISA Affiliate.

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“Platform” has the meaning specified in Section 7.02.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Pro Forma Basis” means, for purposes of determining compliance with the Financial Covenant, that the subject Acquisition or Disposition and any related incurrence or discharge of Indebtedness shall be deemed to have occurred as of the first day of the period of four consecutive fiscal quarters ending with the fiscal quarter as of the end of which such compliance is being determined. Further, for purposes of making calculations on a “Pro Forma Basis” hereunder, (a) income statement items (whether positive or negative) attributable to the property, entities or business units that are the subject of the subject Acquisition or Disposition shall be, in the case of Acquisitions, included or, in the case of Dispositions, excluded to the extent relating to any period prior to the date of subject transaction, and (b) Indebtedness incurred or, in the case of a Disposition, discharged in connection with the subject Acquisition or Disposition shall be deemed to have been incurred or, in the case of a Disposition, discharged as of the first day of the applicable period (and interest expense shall be imputed for the applicable period assuming prevailing interest rates hereunder or excluded based on actual interest accrued in accordance with GAAP).
“Pro Rata Share” means, with respect to any Lender at any time, (a) when used in reference to the funding of any Loans or Borrowings or other matters relating to Commitments, including when used in reference to ticking fees, a fraction (expressed as percentage, carried out to the ninth decimal place), the numerator of which is the aggregate amount of the Commitment of such Lender at such time and the denominator of which is the aggregate amount of the Commitments of all Lenders at such time, (b) when used in reference to any Borrowing, including prepayments of any Borrowing, a fraction (expressed as percentage, carried out to the ninth decimal place), the numerator of which is the principal amount of the Loan of such Lender included in such Borrowing and the denominator is the aggregate principal amount of such Borrowing and (c) when used for other purposes, including as used in Section 11.04(c), a fraction (expressed as percentage, carried out to the ninth decimal place), the numerator of which is the sum of (i) the amount of the Commitment of such Lender at such time plus (ii) the sum of the Dollar Equivalents of the principal amounts of the Loans of such Lender outstanding at such time and the denominator of which is the sum of (x) the aggregate amount of the Commitments of all Lenders at such time plus (y) the Dollar Equivalents of the principal amounts of the Loans of all Lenders outstanding at such time.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 7.02.

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“Quotation Day” means (a) with respect to any Loan denominated in Dollars for any Interest Period, the day two Business Days prior to the first day of such Interest Period and (b) with respect to any Loan denominated in Euros for any Interest Period, the day two TARGET Days before the first day of such Interest Period, in each case unless market practice differs for loans such as the applicable Loan priced by reference to rates quoted in the Relevant Interbank Market, in which case the Quotation Day for such Loan shall be determined by the Administrative Agent in accordance with market practice for such loans priced by reference to rates quoted in the Relevant Interbank Market (and if quotations would normally be given by leading banks for such loans priced by reference to rates quoted in the Relevant Interbank Market on more than one day, the Quotation Day shall be the last of those days).
“Register” has the meaning specified in Section 11.07(c).
“Related Indemnitee” of an Indemnitee means (a) any controlling Person or controlled Affiliate of such Indemnitee, (b) the respective directors, officers or employees of such Indemnitee or any of its controlling Persons or controlled Affiliates and (c) the respective agents of such Indemnitee or any of its controlling Persons or controlled Affiliates, in the case of this clause (c), acting on behalf of, or at the express instructions of, such Indemnitee, controlling Person or such controlled affiliate; provided that each reference to a controlling Person, controlled affiliate, director, officer or employee in this definition pertains solely to a controlling Person, controlled Affiliate, director, officer or employee involved in the negotiation or syndication of this Agreement.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, representatives and advisors of such Person and of such Person’s Affiliates.
“Relevant Interbank Market” means (a) with respect to Dollars, the London interbank market, and (b) with respect to Euros, the European interbank market.
“Replacement Lender” means any Person that is an Eligible Assignee and that agrees to assume interests, rights and obligations of any Lender pursuant to Section 11.16.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.
“Required Lenders” means, at any time, Lenders holding Commitments and Loans representing in the aggregate more than 50% of the sum of the aggregate amount of the Commitments of all Lenders at such time and the sum of the Dollar Equivalents of the principal amount of the Loans of all Lenders outstanding at such time; provided that the Commitment and Loans held by any Defaulting Lender shall be disregarded for purposes of making a determination of Required Lenders.
“Responsible Officer” means, with respect to any Loan Party, the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or a director of such Loan Party and, solely for purposes of the delivery of incumbency certificates pursuant to Section 5.01, a director, the secretary or any assistant secretary of such Loan Party and, solely for purposes of notices given pursuant to Article II, any of the foregoing officers and any other officer of such Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any

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other officer or employee of such Loan Party designated in or pursuant to an agreement between such Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Lender” has the meaning specified in Section 1.06.
“Revolving Credit Agreement” means that certain Credit Agreement dated as of June 21, 2018, as amended as of August 14, 2019, among the Company, certain of its Subsidiaries party thereto, the lenders party thereto and Bank of America, N.A., as administrative agent and swing line lender, and any refinancing or replacement thereof.
“Reuters” means Thomson Reuters Corporation, a corporation incorporated under and governed by the Business Corporations Act (Ontario), Canada, Refinitiv or, any each case, any successor thereto.
“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, and any successor thereto.
“Sale and Leaseback Transaction” means, with respect to the Company or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Company or such Subsidiary shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
“Sanctions” means any economic or financial sanctions or trade embargoes administered or enforced by the United States Government (including, without limitation, OFAC and the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.
“Screen Rate” means (a) in respect of the LIBO Rate for any Interest Period, or in respect of any determination of the Base Rate pursuant to clause (c) of the definition thereof, a rate per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to the relevant period as displayed on the Reuters screen page that displays such rate (currently LIBOR01 or LIBOR02) (or, in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion) and (b) in respect of the EURIBO Rate for any Interest Period, the rate per annum determined by the European Money Market Institute (or any other Person that takes over the administration of such rate) as the rate at which interbank deposits in Euros are being offered by one prime bank to another within the EMU zone for such Interest Period, as set forth on the Reuters screen page that displays such rate (currently EURIBOR01) (or, in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service that publishes such rate as shall be selected by

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the Administrative Agent from time to time in its reasonable discretion); provided that (i) if no Screen Rate shall be available for a particular period at such time but Screen Rates shall be available for maturities both longer and shorter than such period at such time, than the Screen Rate for such period shall be the Interpolated Screen Rate as of such time and (ii) if the Screen Rate, determined as provided above, would be less than zero, the Screen Rate shall be deemed to be zero.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Securitization Transaction” means any financing or factoring or similar transaction (or series of such transactions) that has been or may be entered into by a member of the Consolidated Group pursuant to which such member of the Consolidated Group may sell, convey or otherwise transfer, or may grant a security interest in, any accounts receivable, payment intangibles, notes receivable, rights to future lease payments or residuals or other similar rights to payment to a special purpose Subsidiary or Affiliate or any other Person.
“Security” means all capital stock, voting trust certificates, bonds, debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or subordinated, all certificates of interest, share or participation in, all certificates for the acquisition of, and all warrants, options and other rights to acquire, any of the foregoing.
“Seller” means Wodgina Lithium Pty Ltd (ACN 611 488 931), a proprietary limited company incorporated under the laws of Australia.
“Solvent” means, with respect to any Person as of a particular date, after giving full effect to rights of contribution against or reimbursement from other Persons under applicable Law or any Contractual Obligation, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities as they mature in the ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s assets would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, which for this purpose shall include rights of contribution in respect of obligations for which such Person has provided a Guarantee, and (e) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, which for this purpose shall include rights of contribution in respect of obligations for which such Person has provided a Guarantee. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability reduced by the amount of any contribution or indemnity that can reasonably be expected to be received.
“Specified Time” means (a) with respect to the LIBO Rate, 11:00 a.m., London time, and (b) with respect to the EURIBO Rate, 11:00 a.m., Brussels time.

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“Statutory Reserve Rate” means a fraction (expressed as a decimal, carried out to five decimal places), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the FRB for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the FRB). Such reserve percentages shall include those imposed pursuant to such Regulation D. LIBOR Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares or other interests having ordinary voting power for the election of directors or other governing body (other than shares or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps, options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

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“Synthetic Lease” means any synthetic, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease under GAAP.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euros.
“Taxes” means all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings (including backup withholding) or similar charges imposed by any Governmental Authority, including any interest, penalties, and liabilities with respect thereto.
“Threshold Amount” means $100,000,000.
“Type” means, with respect to a Loan, its character as a Base Rate Loan, a LIBOR Loan or a EURIBOR Loan.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA over the current value of that Pension Plan’s assets, determined as of the date of the most recently completed actuarial valuation report for that Pension Plan in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Internal Revenue Code.
“United States” and “U.S.” mean the United States of America.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code.
“VAT” means (a) any Tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) and (b) any other Tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in clause (a) of this definition, or imposed elsewhere.
“VAT Recipient” has the meaning specified in Section 3.01(d).
“VAT Relevant Party” has the meaning specified in Section 3.01(d).
“VAT Supplier” has the meaning specified in Section 3.01(d).
“Wodgina Lithium Joint Venture” means the unincorporated joint venture established between Albemarle Wodgina and the Seller pursuant to a joint venture agreement executed between the parties on or about the Acquisition Agreement Closing Date, as contemplated by the Acquisition Agreement.

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“Write-Down and Conversion Powers” means, 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.
SECTION 1.02.    Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)    The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)    (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(i)    Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears unless otherwise expressly referenced.
(ii)    The word “including” is by way of example and not limitation.
(iii)    The word “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(iv)    The word “will” will be construed to have the same meaning and effect as the word “shall”.
(v)    The words “asset” and “property” will be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(vi)    Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
(vii)    Except as otherwise provided herein and unless the context requires otherwise, any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof.
(c)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.

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(d)    Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(e)    For purposes of determining the Dollar Equivalent of any Loan denominated in Euros, the Administrative Agent shall determine the Exchange Rate as of each applicable Exchange Rate Date and shall apply such Exchange Rates to determine such amount, and each such amount shall be the Dollar Equivalent of such Loan until the next required calculation thereof pursuant to this paragraph.
(f)    For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (i) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (ii) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Securities at such time.
SECTION 1.03.    Accounting Terms.
(a)    All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP. Notwithstanding the foregoing, (i) for purposes of determining compliance with any covenant (including the computation of the Financial Covenant) contained herein, Funded Debt of the Company and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded, and (ii) for purposes of calculations made pursuant to the terms of this Agreement, the determination of whether a lease constitutes a capital lease, and the amount of capital lease obligations arising therefrom, shall be made on the basis of GAAP without giving effect to any change to GAAP set forth in the Accounting Standards Update No. 2016-02, Leases (Topic 842), issued by the Financial Accounting Standards Board on February 25, 2016, or any other updates or proposals issued by the Financial Accounting Standards Board in connection therewith.
(b)    At the Company’s election, determinations of compliance with the Financial Covenant hereunder may be made on a Pro Forma Basis with respect to any Acquisition, any Disposition of all of the equity interests of, or all or substantially all of the assets of, a Subsidiary or any Disposition of a line of business or a division of the Company or a Subsidiary, in each case, consummated after the Closing Date; provided that with respect to any such Acquisition or Disposition (i) the Company must elect to treat such Acquisition or Disposition on a Pro Forma Basis on or before the delivery of the Compliance Certificate relating to the first fiscal quarter period ending after the date of the consummation of such Acquisition or Disposition, (ii) the Company must indicate such election on such Compliance Certificate and (iii) such election shall be irrevocable. Absent the Company’s election to treat an Acquisition or a Disposition on a Pro Forma Basis in accordance with this Section 1.03(b), determinations of compliance with the Financial

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Covenant hereunder shall not be made on a Pro Forma Basis with respect to such Acquisition or Disposition.
(c)    The Company will provide a written summary of material changes in GAAP affecting the financial reporting of the Company or in the consistent application thereof by the Company with each Compliance Certificate delivered in accordance with Section 7.02(b). If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
SECTION 1.04.    Rounding.
Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

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SECTION 1.05.    References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other Contractual Obligations shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
SECTION 1.06.    Blocking Regulation.
In relation to any Lender that is subject to the regulations referred to below (each, a “Restricted Lender”), any representation, warranty or covenant set forth herein that refers to Sanctions or Designated Jurisdictions (each, a “Specified Provision”) shall only apply for the benefit of such Restricted Lender to the extent that such Specified Provision would not result in a violation of, conflict with or liability under Council Regulation (EC) 2271/96 (or any Law implementing such regulation in any member state of the European Union) or any similar blocking or anti-boycott Law in Germany (including, in the case of Germany, section 7 foreign trade rules (Auβenwirtschaftsverordnung – AWV) in connection with section 4 paragraph 1 foreign trade law (Auβenwirtschaftsgesetz – AWG)) or in the United Kingdom (the “Mandatory Restrictions”). In the case of any consent or direction by Lenders in respect of any Specified Provision of which a Restricted Lender does not have the benefit due to a Mandatory Restriction, then, notwithstanding anything to the contrary in the definition of Required Lenders, for so long as such Restricted Lender shall be subject to a Mandatory Restriction, the Commitment and the Dollar Equivalents of the outstanding principal amount of any Loans of such Restricted Lender will be disregarded for the purpose of determining whether the requisite consent of the Lenders has been obtained or direction by the requisite Lenders has been made, it being agreed, however, that, unless, in connection with any such determination, the Administrative Agent shall have received written notice from any Lender stating that such Lender is a Restricted Lender with respect thereto, each Lender shall be presumed, in connection with such determination, not to be a Restricted Lender.
SECTION 1.07.    Interest Rate; LIBOR Notification.
The interest rate on LIBOR Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “Screen Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof, including whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 3.03, will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

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SECTION 1.08.    Dutch Terms.
In this Agreement, where it relates to Albemarle Finance, (a) a “winding-up”, “liquidation”, “administration”, “dissolution” and “reorganization” (and any of those terms) include a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden), (b) a “trustee in bankruptcy” includes a curator, (c) an “administrator” includes a bewindvoerder, (d) a “Lien” includes any mortgage (hypotheek), pledge (pandrecht), right of retention (recht van retentie) and in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijk zekerheidsrecht), (e) a “bankers’ lien” includes any security of account holding banks arising under their general terms and conditions, (f) board of directors shall refer to the management board (bestuur) and a director shall refer to a member of the management board (bestuurder) and (g) “authorize” or “authorization”, where applicable, includes (i) any action required to comply with the Works Councils Act of The Netherlands (Wet op de ondernemingsraden) and (ii) obtaining an unconditional positive advice (advies) from the competent works council(s).
ARTICLE II

The Commitments and Loans
SECTION 2.01.    Loans.
Subject to the terms and conditions set forth herein, each Lender severally, but not jointly, agrees to make, from time to time during the Availability Period, Loans to any Borrower denominated in Dollars or, in the case of Albemarle Finance and Albemarle Germany, in Euros; provided that (a) the Dollar Equivalent of the principal amount of any Loan to be made by any Lender shall not exceed its Commitment as in effect immediately prior to the time such Loan is made, (b) the sum of the Dollar Equivalents of the principal amounts of Loans made to Albemarle Germany shall not exceed $300,000,000, (c) all Loans made to Albemarle Wodgina under this Section 2.01 shall be made on a single Funding Date, (d) all Loans made to Albemarle Finance under this Section 2.01 shall be made on a single Funding Date and (e) all Loans made to Albemarle Germany shall be made on no more than two Funding Dates. Loans denominated in Dollars may consist of Base Rate Loans or LIBOR Loans, or a combination thereof, as the applicable Borrower (or the Company on its behalf) may request in accordance herewith. Loans denominated in Euros may only be EURIBOR Loans. Amounts repaid or prepaid in respect of Loans may not be reborrowed.
SECTION 2.02.    Borrowings, Conversions and Continuations of Loans.
(a)    Each borrowing of Loans, each conversion of any Borrowing from one Type to another Type and each continuation of any Eurocurrency Rate Borrowing shall be made upon delivery to the Administrative Agent by the applicable Borrower (or the Company on its behalf) of a Loan Notice. Each Loan Notice must be received by the Administrative Agent not later than (i) 12:00 noon, Local Time, three Business Days prior to the requested date of any borrowing of, or conversion to or continuation of, Eurocurrency Rate Loans and (ii) 10:00 a.m., Local Time, on the requested date of any borrowing of, or conversion to, Base Rate Loans. Each Loan Notice shall be irrevocable; provided that, with respect to any borrowing to be made on a Funding Date that is prior

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to the Acquisition Agreement Closing Date and subject to Section 3.05, such Loan Notice may be withdrawn by the applicable Borrower (or the Company on its behalf), by fax or e-mail notice to the Administrative Agent, which must be received by the Administrative Agent not later than 9:00 a.m., Local Time, on the requested date of such borrowing. At the commencement of each Interest Period for any Eurocurrency Rate Borrowing, such Borrowing shall be in a principal amount equal to the Borrowing Minimum or a whole multiple equal to the Borrowing Multiple in excess thereof; provided that a Eurocurrency Rate Borrowing that results from a continuation of an outstanding Eurocurrency Rate Borrowing may be in a principal amount that is equal to such outstanding Borrowing. On each Funding Date, each Base Rate Borrowing shall be in a principal amount equal to the Borrowing Minimum or a whole multiple equal to the Borrowing Multiple in excess thereof. Each Loan Notice shall specify (A) the applicable Borrower, (B) whether a borrowing of Loans, a conversion of any Borrowing from one Type to the other or a continuation of any Eurocurrency Rate Borrowing is being requested, (C) the requested date of the borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (D) in the case of a Loan Notice for a borrowing by Albemarle Finance or by Albemarle Wodgina prior to the Acquisition Agreement Closing Date, the date that is reasonably anticipated by the Company to be the Acquisition Agreement Closing Date, it being agreed that, notwithstanding anything to the contrary set forth herein, a Loan Notice for a borrowing by Albemarle Finance or by Albemarle Wodgina may not be delivered more than 10 Business Days prior to the date that is reasonably expected by the Company to be the Acquisition Agreement Closing Date (and each delivery of a Loan Notice for a borrowing by Albemarle Finance or by Albemarle Wodgina prior to the occurrence of the Acquisition Agreement Closing Date shall constitute a representation by the Company that the Company reasonably expects the Acquisition Agreement Closing Date to occur no more than 10 Business Days after the date such Loan Notice is delivered), (E) the aggregate principal amount of Loans to be borrowed or the existing Borrowing that is to be converted or continued, (F) the Type of Loans to be borrowed or to which the existing Borrowing is to be converted, (G) if applicable, the duration of the Interest Period with respect thereto and (H) in the case of a borrowing of Loans, the currency requested with respect thereto and the location and number of the account of the applicable Borrower to which funds are to be disbursed (which account shall be reasonably acceptable to the Administrative Agent). The applicable Borrower (or the Company on its behalf) may elect different conversion or continuation options with respect to different portions of the affected existing Borrowing (and all references herein to conversion or continuation of a Borrowing shall be understood to include any such election of different options with respect thereto), in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. If a Borrower (or the Company on its behalf) fails to specify a currency in a Loan Notice requesting a borrowing of Loans, then the Loans so requested shall be made in Dollars. If a Borrower (or the Company on its behalf) fails to specify a Type of the requested Loans in a Loan Notice, then the applicable Loans will be made (x) in the case of Loans denominated in Dollars, as Base Rate Loans and (y) in the case of Loans denominated in Euros, as EURIBOR Loans. If a Borrower (or the Company on its behalf) fails to timely deliver a Loan Notice requesting a conversion or continuation of any Eurocurrency Rate Borrowing, then, on the last day of the Interest Period applicable thereto, such Borrowing shall (x) in the case of a Borrowing denominated in Dollars, automatically convert to a Base Rate Borrowing and (ii) in the case of a Borrowing denominated in Euros, automatically be continued as a EURIBOR Borrowing with an Interest Period of one month. If a Borrower (or

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the Company on its behalf) requests a borrowing of Eurocurrency Rate Loans or conversion to or continuation of a Eurocurrency Rate Borrowing in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in a different currency.
(b)    Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the details thereof and, in the case of a Loan Notice requesting a borrowing of Loans, of its Pro Rata Share of the applicable Loans. If no timely Loan Notice with respect to a conversion or continuation of any Eurocurrency Rate Borrowing is provided by the applicable Borrower (or the Company on its behalf), the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans of Loans denominated in Dollars or continuation of Loans denominated in a Euro, in each case, as described in Section 2.02(a). Each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds by wire transfer, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, not later than 1:00 p.m., Local Time, on the Business Day specified in the applicable Loan Notice. Upon satisfaction (or waiver in accordance with Section 11.01) of the applicable conditions set forth in Section 5.02, the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions set forth in the applicable Loan Notice.
(c)    Except as otherwise provided herein, a Eurocurrency Rate Borrowing may be continued or converted only on the last day of the Interest Period for such Eurocurrency Rate Borrowing. During the existence of a Default or Event of Default, (i) no Borrowing denominated in Dollars may be converted to or continued as a Eurocurrency Rate Borrowing and (ii) no Borrowing denominated in Euros may be converted to or continued as a Borrowing having an Interest Period of more than one month, in each case, without the consent of the Required Lenders.
(d)    The applicable Base Rate or Eurocurrency Rate shall be determined by the Administrative Agent in accordance with the terms hereof. The Administrative Agent shall promptly notify the Company or the applicable Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. The determination of the Base Rate or the Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence of manifest error.
(e)    After giving effect to all Borrowings, all conversions of Borrowings from one Type to another Type and all continuations of Eurocurrency Rate Borrowings, there shall not be more than 10 Interest Periods in effect with respect to Loans.
SECTION 2.03.    [Reserved.]
SECTION 2.04.    [Reserved.]
SECTION 2.05.    Optional and Mandatory Prepayments.

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(a)    Each Borrower may, upon notice from such Borrower (or the Company on its behalf) to the Administrative Agent, at any time or from time to time voluntarily prepay any Borrowing in whole or in part, without premium or penalty; provided that (a) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent not later than 12:00 noon, New York City time, (i) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans and (ii) on the date of prepayment of Base Rate Loans and (b) any prepayment of any Borrowing shall be in a principal amount equal to the Borrowing Minimum or a whole multiple equal to the Borrowing Multiple in excess thereof, or, if less, the entire principal amount of such Borrowing then outstanding. Each such notice shall specify the date and amount of such prepayment and the Borrowing or Borrowings to be prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each such notice and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by a Borrower (or the Company on its behalf), the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that, subject to Section 3.05, such notice may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the applicable Borrower (or the Company on its behalf) by notice to the Administrative Agent on or prior to the specified date of prepayment if such condition is not satisfied and, in the case of such revocation, the applicable Borrower shall not be required to make such prepayment and such prepayment amount shall cease to be due and payable. Any prepayment of a Loan shall be accompanied by all accrued interest thereon and, in the case of any prepayment of Eurocurrency Rate Loans on any day other than the last day of the Interest Period applicable thereto, shall be subject to Section 3.05. Each prepayment of a Borrowing shall be applied to the applicable Loans of the Lenders in accordance with their respective Pro Rata Shares thereof.
(b)    If the Acquisition Agreement Closing Date shall not have occurred by the day that is thirty days after the Funding Date with respect to any Loans made to Albemarle Finance or to Albemarle Wodgina, then, on the day that is two Business Days after such day, the applicable Borrower shall prepay the entire principal amount of such Loans. Any such prepayment of a Loan shall be accompanied by all accrued interest thereon and, in the case of any prepayment of Eurocurrency Rate Loans on any day other than the last day of the Interest Period applicable thereto, shall be subject to Section 3.05.
SECTION 2.06.    Termination or Reduction of Commitments.
(a)    Unless previously terminated, the Commitments shall automatically terminate at 5:00 p.m., New York City time, on the Commitment Outside Date. Unless previously terminated, upon the termination of the Acquisition Agreement in accordance with its terms prior to the consummation of the transactions contemplated thereby, the Commitments shall be automatically reduced to $300,000,000 less the sum of the Dollar Equivalents of the principal amounts of Loans made to Albemarle Germany. The Commitment of each Lender shall be reduced automatically and without further action upon the making by such Lender of any Loan by an amount equal to the Dollar Equivalent of such Loan.

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(b)    Prior to the Commitment Outside Date, the Company may, upon notice from the Company to the Administrative Agent, terminate or permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 noon, New York City time, one Business Day prior to the date of termination or reduction and (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof. Each notice delivered by the Company pursuant to this Section 2.06(b) shall be irrevocable; provided that any such notice may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Company by notice to the Administrative Agent on or prior to the specified date of termination or reduction if such condition is not satisfied. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments.
(c)    Any reduction of the Commitments shall be applied to the Commitment of each Lender according to its Pro Rata Share thereof. Any termination or reduction of the Commitments shall be permanent. All unpaid ticking fees accrued until the effective date of any termination or reduction of the Commitments (in the case of any reduction, in respect of the aggregate amount of the Commitments subject to such reduction) shall be paid on the effective date of such termination or reduction.
SECTION 2.07.    Repayment of Loans.
Each Borrower shall pay to the Administrative Agent, for the account of each Lender, the then unpaid principal amount of each Loan of such Lender made to such Borrower on the Maturity Date applicable to such Loan.
SECTION 2.08.    Interest.
(a)    Subject to the provisions of Section 2.08(b), (i) each LIBOR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of (A) the Adjusted LIBO Rate for such Interest Period plus (B) the Applicable Rate, (ii) each EURIBOR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of (A) the EURIBO Rate for such Interest Period plus (B) the Applicable Rate and (iii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the sum of (A) the Base Rate plus (B) the Applicable Rate.
(b)    (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii)    If any amount (other than principal of any Loan) payable by any Borrower or the Company under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a

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fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii)    Without duplication of clauses (i) and (ii) above, if any Event of Default under Section 9.01(f) or Section 9.01(g) arises, the outstanding Obligations shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iv)    Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c)    Interest on each Loan shall be due and payable by the applicable Borrower in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable by the applicable Borrower in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
SECTION 2.09.    Fees.
(a)    Ticking Fees. The Company shall pay to the Administrative Agent, for the account of each Lender (subject to Section 2.17 in the case of any Defaulting Lender), a ticking fee in Dollars, which shall accrue at a rate of 0.125% per annum on the daily amount of the Commitment of such Lender during the period (i) from and including the date that is 60 days after the Closing Date and (ii) to but excluding the date of the termination or expiration of the Commitment of such Lender (the date in this clause (ii) being referred to as the “Ticking Fee End Date”). Accrued and unpaid ticking fees shall be due and payable (x) with respect to the ticking fees accrued through and including the last day of March, June, September and December of each year, in arrears on the fifteenth day following such last day, provided that any such ticking fees that, in the absence of this proviso, would have been due and payable on any date prior to the earlier of the initial Funding Date or the Acquisition Agreement Closing Date shall only be due and payable on the earlier of the initial Funding Date or the first Business Day after the Acquisition Agreement Closing Date, (y) on the Ticking Fee End Date and (z) at such other times as may be specified herein.
(b)    Other Fees.
(i)    The Company shall pay to the Administrative Agent for its own account an annual administrative fee in an amount and at the times as separately agreed in writing by the Company and the Administrative Agent. Such fee shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii)    The Company shall pay to the Arrangers and the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so agreed. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
SECTION 2.10.    Computation of Interest and Fees.

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All computations of interest for Base Rate Loans when the Base Rate is determined by reference to the Prime Rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.11.    Evidence of Debt.
The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of any Borrower or the Company hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
SECTION 2.12.    Payments Generally; Administrative Agent’s Clawback.
(a)    General. All payments to be made by the Loan Parties shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in Euros, all payments by the Loan Parties hereunder shall be made to the Administrative Agent, for the account of the Lenders to which such payment is owed (except that payments pursuant to Sections 3.01, 3.04, 3.05 and 11.04 shall be made directly to the Persons entitled thereto), in Dollars by wire transfer of immediately available funds not later than 2:00 p.m., Local Time, on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in Euros shall be made to the Administrative Agent, for the account of the Lenders to which such payment is owed, in Euros by wire transfer of immediately available funds not later than 2:00 p.m., Local Time, on the dates specified herein. All such payments to the Administrative Agent shall be made to such account as may be specified by the Administrative Agent from time to time by notice to the Company. If, for any reason, Albemarle Finance or Albemarle Germany is prohibited by any Law from making any required payment hereunder in Euros, Albemarle Finance or Albemarle

36


Germany, as applicable, shall make such payment in Dollars, with the amount of such payment in Dollars being determined by using the Exchange Rate as of the date of such payment. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m., Local Time, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by any Loan Party shall come due on a day other than a Business Day, such payment shall be made on the next following Business Day, except as otherwise set forth in the definition of “Interest Period” or “Maturity Date”, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)    (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, (1) if such Borrowing is denominated in Dollars, the greater of (x) the NYFRB Rate and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (2) if such Borrowing is denominated in Euros, the greater of (x) the rate reasonably determined by the Administrative Agent to be the cost to it of funding such amount (which determination will be conclusive absent manifest error) and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, in each case, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by any Borrower, (1) if such Borrowing is denominated in Dollars, the interest rate applicable to Base Rate Loans and (2) if such Borrowing is denominated in Euros, the interest rate applicable to such Borrowing. If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)    Payments by Loan Parties; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from a Loan Party prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that such Loan Party will not make such payment, the Administrative Agent may assume that such Loan Party has made such payment on such date in accordance herewith

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and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if such Loan Party has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, (A) if denominated in Dollars, the greater of (1) the NYFRB Rate and (2) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (B) if denominated in Euros, the greater of (1) the rate reasonably determined by the Administrative Agent to be the cost to it of funding such amount (which determination will be conclusive absent manifest error) and (2) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, in each case, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing.
A notice of the Administrative Agent to any Lender or any Borrower with respect to any amount owing under this Section 2.12(b) shall be conclusive, absent manifest error.
(c)    Failure to Satisfy Conditions Precedent. In the event that any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to such Borrower by the Administrative Agent because the conditions to such Loan set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. Without limiting the provisions of Section 10.04, each Lender expressly acknowledges and agrees that in releasing to any Borrower any funds made available to the Administrative Agent by any Lender, (i) the Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any certificate of a Responsible Officer of such Borrower or the Company delivered pursuant to Article V and upon any representation or deemed representation made by the Company in, or as a result of a delivery of, a Loan Notice and (ii) any good faith determination by the Administrative Agent that any condition set forth in Article V has been satisfied shall be binding on each Lender.
(d)    Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 11.04(c) or 11.06 are several and not joint. The failure of any Lender to make any Loan or to make any payment under Section 11.04(c) or 11.06 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to make its Loan or to make its payment under Section 11.04(c) or 11.06.
(e)    Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
SECTION 2.13.    Sharing of Payments.

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If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact and (b) purchase (for cash at face value) participations in the Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; provided that:
(i)    if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)    the provisions of this Section 2.13 shall not be construed to apply to (A) any payment made by or on behalf of the Loan Parties pursuant to and in accordance with the express terms of this Agreement (including payments pursuant to Sections 2.15 and 3.02) or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans other than an assignment to the Company or any Subsidiary thereof (as to which the provisions of this Section 2.13 shall apply).
Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
SECTION 2.14.    [Reserved.]
SECTION 2.15.    Extension of Maturity Date.
(a)    Requests for Extension. The Company may, by notice to the Administrative Agent (which shall promptly notify the Lenders), request, on a single occasion after the initial Funding Date, that each Lender extend the Maturity Date applicable to the Loans of such Lender for an additional period (to be specified in such notice) of up to four years from the applicable Maturity Date as in effect on the date such extension is requested (the “Existing Maturity Date”; and the date on which the closing with respect to such extension shall occur is referred to herein as the “Extension Closing Date”).
(b)    Lender Elections to Extend. Each Lender, acting in its sole and individual discretion, shall, by notice to the Administrative Agent given not later than 15 days after receipt of the Company’s request pursuant to Section 2.15(a) (the “Extension Lender Response Date”), advise the Administrative Agent whether or not such Lender agrees to the requested extension; provided that any Lender that does not so advise the Administrative Agent on or before the Extension Lender Response Date shall be deemed to have advised the Administrative Agent that it has declined to agree to the requested extension (each Lender that agrees to the requested extension being referred

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as an “Extending Lender”, and each Lender that does not or is deemed not to agree to the requested extension being referred to as a “Non-Extending Lender”). The election of any Lender to agree to the requested extension shall not obligate any other Lender to so agree.
(c)    Notification by Administrative Agent. The Administrative Agent shall notify the Company of each Lender’s determination under this Section 2.15 no later than 10 days after the Extension Lender Response Date (or, if such date is not a Business Day, on the next succeeding Business Day).
(d)    Replacement of Non-Extending Lenders. The Company shall have the right to replace each Non‑Extending Lender with one or more Replacement Lenders as provided in Section 11.16.
(e)    Minimum Extension Requirement. If (and only if) the sum of the Dollar Equivalents of the outstanding principal amounts of the Loans held by the Extending Lenders and by the Replacement Lenders that shall have replaced any Non-Extending Lender as contemplated by Section 2.15(d) shall, in the aggregate, be more than 50% of the sum of the Dollar Equivalents of the outstanding principal amounts of the Loans held by all Lenders, in each case, determined immediately prior to the Extension Closing Date, then, subject to the satisfaction of the conditions set forth in Section 2.15(f), the Maturity Date applicable to the Loans of each Extending Lender and each such Replacement Lender shall be extended to the date requested by the Company pursuant to Section 2.15(a) (except that, if such date is not a Business Day, the Maturity Date as so extended shall be the next preceding Business Day).
(f)    Conditions to Effectiveness of Extensions. As a condition precedent to the effectiveness of the requested extension, the Company shall (i) deliver to the Administrative Agent a certificate of a Responsible Officer of the Company and each Borrower, in each case, dated as of the Extension Closing Date, (A) certifying and attaching the resolutions adopted by the Company or such Borrower, as applicable, approving or consenting to such extension and (B) in the case of the Company, certifying that, before and after giving effect to such extension, (x) the representations and warranties contained in Article VI and the other Loan Documents are true and correct in all material respects (in the case of any representation and warranty qualified by materiality or Material Adverse Effect in the text thereof, in all respects) on and as of the Extension Closing Date as if made on and as of the Extension Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case certifying that they are true and correct in all material respects (in the case of any representation and warranty qualified by materiality or Material Adverse Effect in the text thereof, in all respects) as of such earlier date, and except that, for purposes of this Section 2.15(f), the representations and warranties contained in Sections 6.05(a) and 6.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) or 7.01(b), as applicable, and (y) no Default exists and (ii) pay to the Administrative Agent, for the account of each Extending Lender and each such Replacement Lender, the Extension Upfront Fee or such other fee as may otherwise be mutally agreed by the Company and such Lenders. The Administrative Agent shall give prompt notice to the Company and the Lenders of the occurrence of the Extension Closing Date, which notice shall be conclusive and binding.

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(g)    Permitted Amendments; Conflicting Provisions. In connection with effecting the extension requested pursuant to this Section 2.15, the Administrative Agent and the Company may, without the consent of any Lender other than the Extending Lenders and the applicable Replacement Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.15. This Section 2.15 shall supersede any provisions in Section 2.13 or 11.01 to the contrary.
SECTION 2.16.    [Reserved.]
SECTION 2.17.    Defaulting Lenders.
(a)    Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)    Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01.
(ii)    Ticking Fees. Ticking fees shall cease to accrue on the amount of the Commitment of such Lender pursuant to Section 2.09(a), and the Company shall not be required to pay any ticking fees that otherwise would have been required to have been paid to such Defaulting Lender for any period during which such Lender is a Defaulting Lender.
(b)    Defaulting Lender Cure. If the Company and the Administrative Agent agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Loan Parties while such Lender was a Defaulting Lender; provided further that (i) all amendments, waivers or consents effected without its consent in accordance with the provisions of Section 11.01 and this Section 2.17 during such period shall be binding on it and (ii) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

ARTICLE III

Taxes, Yield Protection and Illegality
SECTION 3.01.    Taxes.

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(a)    Except as required by Laws, any and all payments by or on behalf of the Loan Parties to or for the account of the Administrative Agent or any Lender under any Loan Document shall be made free and clear of and without withholding or deduction for Taxes. If any Loan Party or the Administrative Agent shall be required by any applicable Laws to withhold or deduct any Taxes from or in respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, then (i) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions, (ii) such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (iii) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the Administrative Agent or such Lender receives an amount equal to the sum it would have received had no such withholding or deduction of Indemnified Taxes been made.
(b)    In addition, each Loan Party agrees to pay any and all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes and any other excise or property Taxes or similar levies that arise from the execution, delivery, performance (other than payment of amounts owing under the Loan Documents), enforcement or registration of or otherwise similarly with respect to, any Loan Document, except (i) any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 11.16) and (ii) VAT (hereinafter referred to as “Other Taxes”).
(c)    (i) Each Loan Party agrees to indemnify the Administrative Agent and each Lender for (x) the full amount of Indemnified Taxes (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) paid by the Administrative Agent and such Lender and (y) any reasonable expenses arising therefrom or with respect thereto, in each case whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the applicable Governmental Authority. Payment under this Section 3.01(c)(i) shall be made within 60 days after the date the applicable Lender or the Administrative Agent makes a written demand therefor; provided, however, that notwithstanding any other provision of this Section 3.01, if the Administrative Agent or any Lender requests indemnification or reimbursement for Indemnified Taxes pursuant to this Section 3.01 more than 120 days after the earlier of (i) the date on which the Administrative Agent or such Lender, as the case may be, makes payment of such Indemnified Taxes and (ii) the date on which the applicable Governmental Authority makes written demand on the Administrative Agent or such Lender, as the case may be, for payment of such Indemnified Taxes, then the applicable Loan Party shall not be obligated to indemnify or reimburse the Administrative Agent or such Lender, as the case may be, for such Indemnified Taxes. Each Loan Party shall, and does hereby indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(c)(ii); provided, however, that no Loan Party shall have any obligation to indemnify any party hereunder for Indemnified Taxes or Other Taxes that arise from such party’s own gross negligence or willful misconduct. To the extent that a Loan Party pays an amount to the Administrative Agent pursuant to the preceding sentence (a “Back-Up Indemnity Payment”), then upon request of the Company,

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the Administrative Agent shall use commercially reasonable efforts to exercise its set-off rights described in the last sentence of Section 3.01(c)(ii) (on behalf of itself or the Loan Parties) to collect the applicable Back-Up Indemnity Payment amount from the applicable Lender and shall pay the amount so collected to the Company net of any reasonable expenses incurred by the Administrative Agent in its efforts to collect (through set-off or otherwise) from such Lender with respect to Section 3.01(c)(ii).
(ii)    Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that a Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so) and (y) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the applicable Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Section 3.01(c)(ii).
(d)    (i) All amounts expressed in any Loan Documents to be payable by any party to this Agreement (for the purposes of this Section 3.01(d), a “Party”) to any Indemnitee that (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT that is chargeable on such supply, and accordingly, subject to Section 3.01(d)(ii), if VAT is or becomes chargeable on any supply made by any Indemnitee to any Party under the Loan Documents and such Indemnitee is required to account to the relevant tax authority for the VAT, such Party must pay to such Indemnitee (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Indemnitee must promptly provide an appropriate VAT invoice to such Party) provided that the Indemnitee did not waive any VAT exemption.
(ii)    If VAT is or becomes chargeable on any supply made by any Indemnitee (for the purposes of this Section 3.01(d), the “VAT Supplier”) to any other Indemnitee (for the purposes of this Section 3.01(d), the “VAT Recipient”) under any Loan Document, and any Party other than the VAT Recipient (the “Subject Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the VAT Recipient in respect of that consideration):
(A)    Where the Supplier is the Person required to account to the relevant tax authority for the VAT, the Subject Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The VAT Recipient will, where this Section 3.01(d)(ii)(A) applies,

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promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the VAT Recipient from the relevant tax authority that the VAT Recipient reasonably determines relates to the VAT chargeable on the supply; and
(B)    Where the VAT Recipient is the Person required to account to the relevant tax authority for the VAT, the Subject Party shall promptly, following demand from the VAT Recipient, pay to the VAT Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the VAT Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
(iii)    Where any Loan Document requires any Party to reimburse or indemnify an Indemnitee for any cost or expense, such Party shall reimburse or indemnify, as the case may be, such Indemnitee for the full amount of such cost or expense, including such part thereof as represents VAT, except to the extent that the Indemnitee reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
(iv)    Any reference in this Section 3.01(d) to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the Person that is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction that is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to such Party or the relevant group or unity (or fiscal unity) of which such Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).
(v)    In relation to any supply made by an Indemnitee to any Party under any Loan Document, if reasonably requested by such Indemnitee, such Party must promptly provide details of its VAT registration and such other information as is reasonably requested in connection with such Indemnitee’s VAT reporting requirements in relation to such supply.
(e)    Upon request by any Loan Party or the Administrative Agent, as the case may be, after any payment of Taxes (other than VAT) by such Loan Party or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, such Loan Party shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such Loan Party, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to such Loan Party or the Administrative Agent, as the case may be.
(f)    Subject to Section 3.01(d), unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender any refund of Taxes withheld or deducted from

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funds paid for the account of such Lender, as the case may be. If the Administrative Agent or a Lender determines, in good faith, that it has received a refund of any Taxes as to which it has been indemnified by a Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay an amount equal to such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), it being understood that any such refund received by another member of a fiscal group that such Lender forms part of shall be treated as received by such Lender for purposes of this Section 3.01(f); provided that the applicable Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 3.01(f), in no event will the Administrative Agent or any Lender be required to pay any amount to any Loan Party pursuant to this Section 3.01(f) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than such Person would have been in if the Indemnified Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 3.01(f) shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person. Notwithstanding the foregoing, this Section 3.01(f) shall not apply to any VAT refund.
(g)    (i) Albemarle Wodgina hereby confirms that no prospective Lender whose name was disclosed to it before the Closing Date was known or suspected by it to be an Offshore Associate of Albemarle Wodgina or an Associate of any other prospective Lender. Albemarle Wodgina will immediately advise the Administrative Agent and the Lenders if any prospective Lender disclosed to it after the Closing Date is known or suspected by it to be an Offshore Associate of Albemarle Wodgina or an Associate of any other prospective Lender.
(ii)    Each Arranger represents and warrants to Albemarle Wodgina that prior to the Closing Date: (A) it made invitations on behalf of Albemarle Wodgina to become a Lender under this Agreement to at least 10 Persons (“Offerees”); (B) its relevant officers or employees who were involved on a day to day basis in syndicating the credit facility established hereunder (the “Officers”) believed that each Offeree, as of the date the relevant invitation was made to such Offeree, carried on the business of providing finance or investing or dealing in securities in the course of operating in financial markets; (C) none of the Offerees were, to the knowledge of the Officers, Associates of any of the other Offerees, for the purposes of section 128F(3A)(a) of the Income Tax Assessment Act 1936 (Cth) (Australia); and (iv) it has not made offers to become a Lender under this Agreement to any Person whom its Officers knew to be Offshore Associates of Albemarle Wodgina.

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(iii)    Each Lender represents and warrants to the Loan Parties that, if it received an invitation referred to in Section 3.01(g)(ii), at the time it received such invitation it was carrying on the business of providing finance, or investing or dealing in securities, in the course of operating in financial markets.
(iv)    Each Arranger and each Lender will provide to any Loan Party, upon reasonable request by such Loan Party, any factual information in its possession or that it is reasonably able to provide to assist the Loan Parties to demonstrate (based upon tax advice received by the Loan Parties) that the public offer test in section 128F of the Income Tax Assessment Act 1936 (Cth) (Australia) has been satisfied where to do so would not, in the reasonable opinion of such Arranger or such Lender, breach any applicable Law or any obligation of confidentiality.
(v)    If, for any reason, the requirements of the public offer test in section 128F of the Income Tax Assessment Act 1936 (Cth) (Australia) have not been satisfied in relation to interest payable on Loans (except to an Offshore Associate of the Loan Parties), then, upon request by the Administrative Agent, any Arranger or any Loan Party, each party hereto shall cooperate and take steps reasonably requested with a view to satisfying those requirements (A) where a Lender breaches its representation and warranty under Section 3.01(g)(iii), at the cost of that Lender or (B) in all other cases, at the cost of the Loan Parties.
(vi)    The parties agree that this Agreement is a “syndicated facility agreement” for the purposes of section 128F(11)(a) of the Income Tax Assessment Act 1936 (Cth) (Australia).
(h)    Each party’s obligations under this Section 3.01 and under Section 11.15 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
SECTION 3.02.    Illegality.
If any Lender in good faith determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to perform any of its obligations hereunder or make, maintain or fund or charge interest with respect to any Loan or to determine or charge interest rates based upon the LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Euros in the Relevant Interbank Market, then, on notice thereof by such Lender to the Company through the Administrative Agent, (a) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Loan or to make or continue Loans denominated in Euros or, in the case of LIBOR Loans, to convert Base Rate Loans to LIBOR Loans shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to clause (c) of the definition of Base Rate, the interest rate on the Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without utilization of clause (c) of the definition of Base Rate, in each case, until such Lender notifies the

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Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice by the Company, (i) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable in the case of LIBOR Loans, convert all of such Lender’s LIBOR Loans to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to clause (c) of the definition of Base Rate until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the LIBO Rate. Upon any such prepayment or conversion, the applicable Borrowers shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender. If such Lender does not designate a different Lending Office to avoid the need for such notice, the Company may replace such Lender in accordance with Section 11.16.
Each Lender at its option may make any Loan to any Borrower by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Borrower to repay such Loan in accordance with the terms of this Agreement; provided, however, if any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, in each case, after the Closing Date for any Lender or its applicable Lending Office to issue, make, maintain, fund or charge interest with respect to any Loan to any Borrower, then, on notice thereof by such Lender to the Company through the Administrative Agent, and until such notice by such Lender is revoked, any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Loan shall be suspended. Upon receipt of such notice, the Borrowers shall take all reasonable actions requested by such Lender to mitigate or avoid such illegality.
SECTION 3.03.    Inability to Determine Rates.
(a)    If on or prior to the first day of any Interest Period for any Eurocurrency Rate Borrowing denominated in any currency: (i) the Administrative Agent in good faith determines that (A) deposits in such currency are not being offered to banks in the Relevant Interbank Market for the applicable amount and Interest Period of such Eurocurrency Rate Borrowing or (B) adequate and reasonable means do not exist for determining the Adjusted LIBO Rate or the EURIBO Rate, as the case may be, for Loans denominated in the applicable currency for the applicable Interest Period or (ii) the Administrative Agent or the Required Lenders in good faith determine that for any reason the Adjusted LIBOR Rate or the EURIBO Rate, as the case may be, for Loans denominated in the applicable currency for the applicable Interest Period does not adequately and fairly reflect the cost to the Required Lenders of funding or maintaining Loans comprising such Borrowing for such Interest Period, then the Administrative Agent will promptly notify the Loan

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Parties and the Lenders. Subject to Section 3.03(b), if such notice is given, then until the Administrative Agent notifies the Loan Parties and the Lenders that the circumstances giving rise to such notice no longer exist, (1) any Loan Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Rate Borrowing denominated in the applicable currency and for such Interest Period shall be ineffective, (2) the affected Eurocurrency Rate Borrowing that was requested to be converted or continued shall (x) if such Borrowing is denominated in Dollars, be continued as or converted to a Base Rate Borrowing or (y) if such Borrowing is denominated in Euros, bear interest at a rate equal to the Applicable Rate for Eurocurrency Rate Loans plus the weighted average of the cost to each Lender to fund its pro rata share of such Borrowing (from whatever source and using whatever methodologies such Lender may select in its reasonable discretion) (with respect to a Lender, the “COF Rate” and with respect to the weighted average of the COF Rate applicable to each Lender for any Borrowing, the “Average COF Rate”), it being agreed by each Lender that promptly upon request therefor by the Administrative Agent, such Lender shall notify the Administrative Agent of the COF Rate of such Lender with respect to the applicable Borrowing, and (3) any Loan Notice that requests the making of such Eurocurrency Rate Borrowing shall (x) if such Borrowing is denominated in Dollars, be treated as a request for a Borrowing that is a Base Rate Borrowing or (y) if such Borrowing is denominated in Euros, be treated as a request for a Borrowing denominated in Dollars that is a Base Rate Borrowing.
(b)    If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in Section 3.03(a)(i) have arisen (including because the applicable Screen Rate is not available or published on a current basis) and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in Section 3.03(a)(i) have not arisen but (A) the supervisor for the administrator of the applicable Screen Rate has made a public statement that the administrator of the applicable Screen Rate is insolvent (and there is no successor administrator that will continue publication of the applicable Screen Rate), (B) the supervisor for the administrator or the administrator of the applicable Screen Rate has made a public statement identifying a specific date after which the applicable Screen Rate will permanently or indefinitely cease to be published (and there is no successor administrator that will continue publication of the applicable Screen Rate) or (C) the supervisor for the administrator of the applicable Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the applicable Screen Rate may no longer be used for determining interest rates for loans denominated in the applicable currency, then the Administrative Agent and the Company shall endeavor in good faith to establish an alternate rate of interest to the LIBO Rate or the EURIBO Rate, as the case may be, that gives due consideration to the then prevailing market convention in the United States for determining a rate of interest for syndicated loans denominated in the applicable currency at such time, and the Administrative Agent and the Company shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (it being understood that such amendment shall not reduce the Applicable Rate); provided that if such alternate rate of interest as so determined shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 11.01, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have

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received, within five Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this Section 3.03(b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 3.03(b) (other than, in the case of clause (ii)(C), after such specific date), only to the extent the applicable Screen Rate for such Interest Period is not available or published at such time on a current basis), clauses (1), (2) and (3) of Section 3.03(a) shall be applicable.
SECTION 3.04.    Increased Cost and Reduced Return; Capital Adequacy and Liquidity.
(a)    If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate);
(ii)    impose on any Lender or the Relevant Interbank Market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender; or
(iii)    subject the Administrative Agent or any Lender to any Taxes (other than Taxes on payments pursuant to the Loan Documents, which will be governed by Section 3.01, Other Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any Loan, or to reduce the amount of any sum received or receivable by the Administrative Agent or such Lender hereunder (whether of principal, interest or any other amount) (and the Administrative Agent or such Lender, as applicable, deems such increase or reduction to be material), then, from time to time within 10 Business Days after the Company’s receipt of the certificate contemplated by Section 3.06(a) from the Administrative Agent or such Lender, the Company will (or will cause the applicable Borrower to) pay to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative Agent or such Lender, as the case may be, for such additional costs or expenses incurred or reduction suffered.
(b)    If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has the effect of reducing, by an amount deemed by such Lender to be material, the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitment of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies

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and the policies of such Lender’s holding company with respect to capital adequacy or liquidity), then, from time to time within 10 Business Days after the Company’s receipt of the certificate contemplated by Section 3.06(a) from such Lender, the Company will (or will cause the applicable Borrower to) pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c)    Failure or delay on the part of the Administrative Agent or any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of its right to demand such compensation; provided that no Loan Party shall be required to compensate the Administrative Agent or any Lender pursuant to this Section 3.04 for any increased costs or expenses incurred or reductions suffered more than 90 days prior to the date that the Administrative Agent or such Lender notifies the Company of the Change in Law giving rise to such increased costs or expenses or reductions and of the Administrative Agent’s or such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or expenses or reductions is retroactive, then the 90-day period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 3.05.    Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Company shall compensate (or cause the applicable Borrower to compensate) such Lender for and hold such Lender harmless from any loss, cost or expense (excluding the loss of the Applicable Rate) incurred by it as a result of:
(a)    any continuation, conversion, payment or prepayment of any Eurocurrency Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)    any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Eurocurrency Rate Loan on the date or in the amount notified by the Company or the applicable Borrower (whether or not such notice may be withdrawn in accordance herewith);
(c)    any failure by any Borrower to make payment of any Loan (or interest due thereon) on its scheduled due date or any payment thereof in a different currency; or
(d)    any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to Section 11.16;
including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Company shall also pay (or shall cause the applicable Borrower to pay) any reasonable customary administrative fees charged by such Lender in connection with the foregoing. The Company (or the applicable Borrower) will, within 10 Business Days after the Company’s (or the

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applicable Borrower’s) receipt of the certificate contemplated by Section 3.06(a), pay such Lender such additional amounts as will compensate such Lender for such losses, costs or expenses.
For purposes of calculating amounts payable by the Company or any Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Adjusted LIBO Rate or the EURIBO Rate, as applicable, for such Loan by a matching deposit or other borrowing in the Relevant Interbank Market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
SECTION 3.06.    Matters Applicable to all Requests for Compensation.
(a)    The Administrative Agent or any Lender claiming compensation under Section 3.01 or 3.04 shall be required to deliver a certificate to the Loan Parties setting forth in reasonable detail (i) the additional amount or amounts to be paid to it hereunder and (ii) the manner in which such amount was determined, which certificate shall be conclusive in the absence of manifest error. In determining such amount, the Administrative Agent or such Lender may use any reasonable averaging and attribution methods.
(b)    Upon any Lender’s making a claim for compensation under Section 3.01 or 3.04, the Company may replace such Lender in accordance with Section 11.16.
(c)    Notwithstanding anything contained herein to the contrary, a Lender shall not be entitled to any compensation pursuant to Section 3.04 or to exercise the rights under Section 3.02 to the extent such Lender is not generally imposing such charges or requesting such compensation from, or is not generally exercising such rights against, as applicable, other similarly situated borrowers under similar circumstances.
SECTION 3.07.    Survival.
The obligations of the Company and the Borrowers under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.

ARTICLE IV

Guaranty
SECTION 4.01.    The Guaranty.
The Company hereby guarantees to each Lender and the Administrative Agent, as primary obligor and not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof. The Company hereby further agrees that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise), the Company will promptly pay the same, without any demand or notice whatsoever,

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and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
SECTION 4.02.    Obligations Unconditional.
The obligations of the Company under Section 4.01 are absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents or other documents relating to the Obligations, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment in full of all Obligations (other than contingent indemnification obligations for which no claim has yet been made)), it being the intent of this Section 4.02 that the obligations of the Company hereunder shall be absolute and unconditional under any and all circumstances until payment in full of all Obligations (other than contingent indemnification obligations for which no claim has yet been made). The Company agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against any Borrower for amounts paid under this Article IV until such time as the Obligations have been paid in full (other than contingent indemnification obligations on which no claim has yet been made) and the Commitments have expired or terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of the Company hereunder, which shall remain absolute and unconditional as described above:
(a)    at any time or from time to time, without notice to the Company, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived;
(b)    any of the acts mentioned in any of the provisions of any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents shall be done or omitted;
(c)    the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;
(d)    any Lien granted to, or in favor of, the Administrative Agent or any Lender or Lenders as security for any of the Obligations shall fail to attach or be perfected; or
(e)    any of the Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of the Company) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of the Company).

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With respect to its obligations hereunder, the Company hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or any other agreement or instrument referred to in the Loan Documents or against any other Person under any other guarantee of, or security for, any of the Obligations.
SECTION 4.03.    Reinstatement.
The obligations of the Company under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any Debtor Relief Law or otherwise, and the Company agrees that it will indemnify the Administrative Agent and each Lender on demand for all reasonable costs and expenses (including, without limitation, fees and expenses of counsel) incurred by the Administrative Agent or such Lender in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.
SECTION 4.04.    Certain Additional Waivers.
The Company agrees that it shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02.
SECTION 4.05.    Remedies.
The Company agrees that, to the fullest extent permitted by law, as between the Company, on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Company for purposes of Section 4.01.
SECTION 4.06.    Guarantee of Payment; Continuing Guarantee.
The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.


ARTICLE V

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Conditions Precedent
SECTION 5.01.    Conditions to the Closing Date.
This Agreement shall become effective on the first date on which each of the following conditions shall be satisfied (or waived in accordance with Section 11.01); provided that the obligations of the Lenders to make Loans hereunder are subject to the satisfaction (or waiver in accordance with Section 11.01) of the conditions set forth in Section 5.02.
(a)    The Administrative Agent shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include a facsimile transmission or electronic image of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b)    The Administrative Agent shall have received the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of Governmental Authorities, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i)    Notes executed by the Borrowers in favor of each Lender requesting a Note;
(ii)    copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable or unless otherwise approved by the Administrative Agent, and certified by a director, secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;
(iii)    such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv)    such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly incorporated or organized, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its state of incorporation or organization; and
(v)    a certificate signed by a Responsible Officer of the Company certifying that (A) the representations and warranties of the Loan Parties contained in Article VI or any other Loan Document are true and correct in all material respects (in the case of any representation and warranty qualified by materiality or Material Adverse Effect in the text thereof, in all respects) on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case certifying

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that they are true and correct in all material respects (in the case of any representation and warranty qualified by materiality or Material Adverse Effect in the text thereof, in all respects) as of such earlier date, and (B) no Default exists.
(c)    The Administrative Agent shall have received written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of (i) Shearman and Sterling LLP, New York counsel for the Loan Parties, (ii) Troutman Sanders LLP, Virginia counsel for the Company, (iii) MinterEllison, Australian counsel for Albemarle Wodgina, (iv) Van Doorne N.V., Dutch counsel for Albemarle Finance, and (v) Shearman & Sterling LLP, German counsel for Albemarle Germany, in each case in form and substance reasonably satisfactory to the Administrative Agent. The Loan Parties hereby request such counsel to deliver such opinions.
(d)    Any fees payable to the Administrative Agent, the Arrangers or the Lenders by the Loan Parties that are required to be paid on or before the Closing Date shall have been paid.
(e)    To the extent reasonably requested by any Lender at least 10 days prior to the Closing Date, the Loan Parties shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to the Closing Date.
(f)    At least five days prior to the Closing Date, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Borrower shall deliver a Beneficial Ownership Certification in relation to such Borrower.
(g)    The Company shall have paid all reasonable attorneys’ fees of the Administrative Agent and JPMorgan (as an Arranger) to the extent invoiced at least two Business Days prior to the Closing Date.
(h)    The Company shall have received, with respect to Albemarle Finance, if applicable, an unconditional positive, written advice from any works council in relation to the transactions contemplated by this Agreement and any other document required for compliance with the Dutch Act on works councils.
SECTION 5.02.    Conditions to Each Funding Date.
The obligation of each Lender to make a Loan as part of any Borrowing is subject to the occurrence of the Closing Date and the satisfaction (or waiver in accordance with Section 11.01) of the following conditions:
(a)    After giving effect to such Borrowing, (i) the representations and warranties of the Loan Parties contained in Article VI or any other Loan Document shall be true and correct in all material respects (in the case of any representation and warranty qualified by materiality or Material Adverse Effect in the text thereof, in all respects) on and as of such Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (in the

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case of any representation and warranty qualified by materiality or Material Adverse Effect in the text thereof, in all respects) as of such earlier date, and except that for the purposes of this Section 5.02(a), the representations and warranties contained in Sections 6.05(a) and 6.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) or 7.01(b), as applicable, and (ii) no Default shall exist on and as of such Funding Date.
(b)    The Administrative Agent shall have received a Loan Notice in accordance with the requirements hereof, and such Loan Notice shall not have been withdrawn.
(c)    Any fees payable to the Lenders by the Loan Parties hereunder that are required to be paid on or before the Funding Date with respect to such Borrowing shall have been paid.
(d)    Solely in the case of any Borrowing to be made on or prior to the Acquisition Agreement Closing Date, the transactions contemplated by the Acquisition Agreement shall be consummated substantially concurrently with the making of such Borrowing (or the Company shall reasonably expect that, no later than 10 Business Days after the date of delivery of the Loan Notice with respect to such Borrowing, such transactions shall be consummated), in each case, in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any amendment or modification to, or any waiver or consent granted under, the Acquisition Agreement if such amendment, modification, waiver or consent would be material and adverse to the interests of the Lenders (in their capacities as such) and the Required Lenders shall not have consented (the consent of each Lender not to be unreasonably withheld, delayed or conditioned) to such amendment, modification, waiver or consent; provided that this Section 5.02(d) shall not apply to any Borrowing to be made by Albemarle Germany.
(e)    The Administrative Agent shall have received a certificate, dated the Funding Date with respect to such Borrowing and signed by a Responsible Officer of the Company, confirming satisfaction of the conditions set forth in Sections 5.02(a) and, solely in the case of any Borrowing (other than a Borrowing by Albemarle Germany) to be made on or prior to the Acquisition Agreement Closing Date, 5.02(d).
Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in Section 5.01 or 5.02, each Lender will be deemed to have consented to approved or accepted, or to be satisfied with, each document or other matter referred to in such Section unless the Administrative Agent will have received notice from such Lender prior to the proposed Closing Date or the proposed Funding Date, as applicable, specifying its objection thereto.

ARTICLE VI

Representations and Warranties
The Company and the Borrowers represent and warrant to the Administrative Agent and the Lenders, on the Closing Date, each Funding Date and each other date on which

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representations and warranties are required to be, or are deemed to be, made under the Loan Documents, that:
SECTION 6.01.    Existence, Qualification and Power.
The Company and each Borrower (a) is a corporation, partnership, limited liability company or other business entity duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party and (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except, in each case referred to in clause (b)(i) or (c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
SECTION 6.02.    Authorization; No Contravention.
The execution, delivery and performance by the Company and each Borrower of each Loan Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action and do not (a) contravene the terms of any Organization Documents of such Person; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, (i) any Contractual Obligation to which such Person is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law, except, in each case referred to in clause (b) or (c), to the extent that it would not reasonably be expected to have a Material Adverse Effect.
SECTION 6.03.    Governmental Authorization; Other Consents.
No approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Company or any Borrower of this Agreement or any other Loan Document, except for those the failure to obtain, occur or make would not reasonably be expected to have a Material Adverse Effect.
SECTION 6.04.    Binding Effect.
This Agreement and each other Loan Document has been duly executed and delivered by the Company and each Borrower that is party thereto. This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of the Company and each Borrower that is party thereto, enforceable against the Company and each such Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer or conveyance, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

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SECTION 6.05.    Financial Statements; No Material Adverse Change.
(a)    The audited consolidated balance sheet of the Consolidated Group as of December 31, 2018, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal year then ended, including the notes thereto, (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial position of the Consolidated Group as of the date thereof and their results of operations and cash flows for the period covered thereby in accordance with GAAP; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Consolidated Group as of the date thereof, including liabilities for Taxes, material commitments and Indebtedness, which are required to be shown thereon in accordance with GAAP.
(b)    The unaudited consolidated balance sheet of the Consolidated Group as of March 31, 2019, and the related consolidated statements of income or operations and cash flows for the fiscal quarter then ended (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial position of the Consolidated Group as of the date thereof and their results of operations and cash flows for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Consolidated Group as of the date thereof, including liabilities for Taxes, material commitments and Indebtedness, which are required to be shown thereon in accordance with GAAP.
(c)    Since December 31, 2018, there has been no event or circumstance, either individually or in the aggregate, that has had or would be reasonably be expected to have a Material Adverse Effect.
SECTION 6.06.    Litigation.
There are not any actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of the Company or any Borrower, threatened (and reasonably likely to be commenced) in writing against or affecting any member of the Consolidated Group or any property or rights of any member of the Consolidated Group as to which there is a reasonable likelihood of an adverse determination and which, if adversely determined, would individually or in the aggregate result in a Material Adverse Effect.
SECTION 6.07.    No Default.
(a)    Neither the Company nor any Subsidiary is in default under or with respect to any Contractual Obligation that would reasonably be expected to have a Material Adverse Effect.
(b)    No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

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SECTION 6.08.    Ownership of Property; Liens.
Each member of the Consolidated Group has good record and marketable title in fee simple (or similar concept under any applicable jurisdiction) to, or valid leasehold interests in, all real property necessary in the ordinary conduct of its business, except for such defects in title as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Consolidated Group is subject to no Liens, other than Liens permitted by Section 8.01.
SECTION 6.09.    Environmental Compliance.
Except as set forth in Schedule 6.09, (a) the Consolidated Group is in compliance in all material respects with all applicable Environmental Laws, except where the failure to do so would not be reasonably likely, individually or in the aggregate, to result in a Material Adverse Effect; (b) no member of the Consolidated Group has received written notice of any failure to comply with applicable Environmental Laws, which non-compliance neither has been or is being remedied, nor is being contested in good faith by such member of the Consolidated Group, nor is the subject of such member’s good faith efforts to achieve compliance, except notices for which non-compliance would not be reasonably likely, individually or in the aggregate, to result in a Material Adverse Effect; (c) the Consolidated Group’s facilities do not manage any Hazardous Materials in violation of any applicable Environmental Law, except where such violation would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; and (d) the Company is aware of no events, conditions or circumstances involving environmental pollution or contamination or employee health or safety that would be reasonably likely to result in a Material Adverse Effect.
SECTION 6.10.    Insurance.
The properties of the Consolidated Group are insured with financially sound and reputable insurance companies not Affiliates of the Company, in such amounts (after giving effect to any self-insurance compatible with the following standards), with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or its Subsidiaries operate.
SECTION 6.11.    Taxes.
(a)    Each member of the Consolidated Group has filed all federal, state and other Tax returns and reports required to be filed by such member, and has paid all federal, state and other Taxes levied or imposed upon such member or its properties, income or assets otherwise due and payable, except (i) those that are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP or (ii) those that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no proposed Tax assessment against the Company or any Subsidiary that would, if made, have a Material Adverse Effect.

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(b)    Albemarle Finance is not, and will not at any time during the term of this Agreement be, considered to be a resident of any jurisdiction other than The Netherlands for the purposes of any double taxation convention concluded by The Netherlands, for the purposes of the Tax Arrangement for the Kingdom (Belastingregeling voor het Koninkrijk) or for purposes of the Tax Arrangement for the country of The Netherlands (Belastingregeling voor het land Nederland), or otherwise.
SECTION 6.12.    ERISA Compliance.
(a)    Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of the Company, nothing has occurred that would prevent, or cause the loss of, such qualification. The Company and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Internal Revenue Code has been made with respect to any Plan.
(b)    There are no pending or, to the knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would reasonably be expected to result in a Material Adverse Effect.
(c)    Other than as would not reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred or is reasonably expected to occur, (ii) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA and other contributions payable in accordance with the terms of such Pension Plan or applicable law), and (iii) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred that, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan.
(d)    The Pension Plans, on a consolidated basis, do not have any Unfunded Pension Liability that would reasonably be expected to result in a Material Adverse Effect.
(e)    To the knowledge of the Company, neither the Company nor any ERISA Affiliate has engaged in a transaction that is subject to Sections 4069 or 4212(c) of ERISA.
(f)    Each Borrower is not and will not be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments.
SECTION 6.13.    Margin Regulations; Investment Company Act.

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(a)    Neither the Company nor any Borrower is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying “margin stock” within the meaning of Regulation U issued by the FRB, as in effect from time to time, or extending credit for the purpose of purchasing or carrying “margin stock,” and the Loans hereunder will not be used to purchase or carry “margin stock” in violation of Regulation U or to extend credit to others for the purpose of purchasing or carrying “margin stock,” or for any purpose that would violate the provisions of Regulation X issued by the FRB, as in effect from time to time.
(b)    Neither the Company nor any Borrower is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
SECTION 6.14.    Disclosure.
No report, financial statement, certificate or other written information furnished by the Company or any Borrower or by any representatives of the Company or any Borrower (on the Company or such Borrower’s behalf) to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Company represents only that such projections were prepared in good faith based upon reasonable assumptions and estimates as of the date of preparation (it being understood and agreed that projections are as to future events and are not to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company and its Subsidiaries, that no assurance can be given that any particular projection will be realized, that actual results during the period or periods covered by any such projections may differ significantly from the projected results and such differences may be material, and that projections are not representations by the Company or its Subsidiaries that such projections will be achieved). As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
SECTION 6.15.    Compliance with Laws.
Each of the Company and each Subsidiary is in compliance in all material respects with the requirements of all Laws, except in such instances in which (a) such requirement of Law is being contested in good faith by appropriate proceedings or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
SECTION 6.16.    Intellectual Property; Licenses, Etc.
To the knowledge of the Company and the Borrowers, the Consolidated Group owns, or possesses the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that are reasonably necessary for the operation of its businesses, without conflict with the rights of any other Person that would reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company and the Borrowers, no slogan or other advertising device, product, process, method, substance, part or

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other material now employed, or now contemplated to be employed, by the Company or any Subsidiary infringes upon any rights held by any other Person that would reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Company and the Borrowers, threatened (and reasonably likely to be commenced), that would in either case reasonably be expected to have a Material Adverse Effect.
SECTION 6.17.    Subsidiaries.
Set forth on Schedule 6.17 is a complete and accurate list as of the Closing Date of each Subsidiary of the Company, together with (a) the jurisdiction of formation, (b) an indication of whether such Subsidiary is an Immaterial Subsidiary, and (c) the ownership percentage of the Company or any Subsidiary therein.
SECTION 6.18.    Solvency.
The Company and its Subsidiaries, on a consolidated basis, are Solvent.
SECTION 6.19.    Certain Matters with Respect to Borrowers.
With respect to each Borrower:
(a)    Such Borrower is subject to civil and commercial Laws with respect to its obligations under this Agreement and the other Loan Documents to which it is a party (collectively as to such Borrower, the “Applicable Foreign Obligor Documents”), and the execution, delivery and performance by such Borrower of the Applicable Foreign Obligor Documents constitute and will constitute private and commercial acts and not public or governmental acts. Neither such Borrower nor any of its property has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Borrower is incorporated or organized and existing in respect of its obligations under the Applicable Foreign Obligor Documents.
(b)    The Applicable Foreign Obligor Documents are in proper legal form under the Laws of the jurisdiction in which such Borrower is incorporated or organized and existing for the enforcement thereof against such Borrower under the Laws of such jurisdiction, and to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents. It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents that the Applicable Foreign Obligor Documents be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in which such Borrower is incorporated or organized and existing or that any registration charge or stamp or similar Tax be paid on or in respect of the Applicable Foreign Obligor Documents or any other document, except for (i) any such filing, registration, recording, execution or notarization as has been made or is not required to be made until the Applicable Foreign Obligor Document or any other document is sought to be enforced and (ii) any charge or Tax as has been timely paid.

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(c)    The execution, delivery and performance of the Applicable Foreign Obligor Documents by such Borrower are not subject to any foreign exchange control regulations of the jurisdiction in which such Borrower is incorporated or organized and existing.
(d)    For the purpose of the Insolvency Regulation, the center of main interest (as that term is used in Article 3(1) of the Insolvency Regulation) of Albemarle Finance and Albemarle Germany is situated in the jurisdiction of the registered office of such Borrower, and such Borrower has no “establishment” (as that term is used in Article 2(10) of the Insolvency Regulations) in any other jurisdiction.
SECTION 6.20.    OFAC; Anti-Corruption Laws.
(a)    The Company has implemented and maintains in effect policies and procedures reasonably designed to promote and achieve compliance by the Company, the Borrowers, their Subsidiaries and their respective directors, officers and employees with applicable Sanctions, and the Company, the Borrowers and their Subsidiaries and (to the knowledge of the Company, the Borrowers and their Subsidiaries) their respective directors, officers, employees, agents and Affiliates are in compliance with applicable Sanctions in all material respects and are not knowingly engaged in any activity that would constitute a violation of applicable Sanctions. None of the Company, the Borrowers or their Subsidiaries, nor (to the knowledge of the Company, the Borrowers and their Subsidiaries) any director, officer, employee, agent or Affiliate thereof, is a Person that is, currently the subject of any Sanctions. None of the Company, any Borrower or any Subsidiary is located, organized or resident in a Designated Jurisdiction.
(b)    The Company, the Borrowers and their Subsidiaries are in compliance in all material respects with applicable anti-corruption Laws (it being understood and agreed that the foregoing representation and warranty shall not be deemed to be inaccurate on account of conduct described in Schedule 6.20 solely to the extent such conduct has occurred prior to the Closing Date (and, for the avoidance of doubt, is not continuing on the date on which such representation and warranty is made or deemed to be made hereunder)) and have instituted and maintain in effect policies and procedures reasonably designed to promote and achieve compliance with such Laws.
(c)    The representations and warranties in this Section 6.20 made by Albemarle Germany and Albemarle Finance on behalf of themselves and their respective Subsidiaries are only made to the extent that such representations and warranties do not result in a violation of or exposure of such entity or any director, officer or employee thereof to any liability under Mandatory Restrictions.
SECTION 6.21.    EEA Financial Institutions.
Neither the Company nor any Borrower is an EEA Financial Institution.

ARTICLE VII

Affirmative Covenants

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So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim or demand has been made), the Company and the Borrowers shall and shall cause each of their respective Subsidiaries to:
SECTION 7.01.    Financial Statements.
Furnish to the Administrative Agent (which will make such documents available to each Lender):
(a)    as soon as available, but in any event within 90 days after the end of each fiscal year of the Company, a consolidated balance sheet of the Consolidated Group as of the end of such fiscal year, and the related consolidated statements of income or operations, changes in equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and
(b)    as soon as available, but in any event within 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, a consolidated balance sheet of the Consolidated Group as of the end of such fiscal quarter, and the related consolidated statements of income or operations and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Company as fairly presenting in all material respects the financial position, results of operations and cash flows of the Consolidated Group in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 7.02(d), the Company shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.
SECTION 7.02.    Certificates; Other Information.
Deliver to the Administrative Agent (which will make such documents available to each Lender):
(a)    concurrently with the delivery of the financial statements referred to in Section 7.01(a), a certificate of its independent registered public accounting firm certifying such financial statements and stating that in making the examination necessary therefor no

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knowledge was obtained of any Default or Event of Default under the Financial Covenant or, if any such Default or Event of Default shall exist, stating the nature and status of such event (which certificate, when furnished by such accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations);
(b)    concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and 7.01(b), a duly completed Compliance Certificate signed by a Responsible Officer of the Company, (i) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the Financial Covenant, (ii) certifying that no Default or Event of Default exists as of the date thereof (or, to the extent a Default or Event of Default exists, the nature and extent thereof and the proposed actions of the Company and the Borrowers with respect thereto) and (iii) including a summary of all material changes in GAAP affecting the consolidated financial statements of the Company and in the consistent application thereof by the Company, the effect on the Financial Covenant resulting therefrom, and a reconciliation between calculation of the Financial Covenant before and after giving effect to such changes (which certificate may be delivered by electronic mail or by facsimile);
(c)    promptly after requested in writing by the Administrative Agent on behalf of any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Company by its independent registered public accounting firm in connection with the accounts or books of the Company or any Subsidiary, or any audit of any of them;
(d)    promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements that the Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e)    promptly following any request in writing therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” rules, including the PATRIOT Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws; and
(f)    promptly, such additional information regarding the business, financial or corporate affairs of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent, on behalf of any Lender, may from time to time reasonably request in writing.
Documents required to be delivered pursuant to Section 7.01(a), 7.01(b) or 7.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto, on the Company’s website on the Internet at https://www.albemarle.com or (ii) on which such documents (A) are publicly

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available on the website of the SEC at http://www.sec.gov or (B) are posted on the Company’s behalf on another Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third‑party website or whether sponsored by the Administrative Agent); provided that in the case of documents that are not available on http://www.sec.gov, (i) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies (which may include .pdf files) is given by the Administrative Agent or such Lender and (ii) the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Company and each Borrower hereby acknowledges that (a) the Administrative Agent may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Company and the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak or another similar electronic system (the “Platform”) subject to procedures and confidentiality undertakings of the Platform and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information (within the meaning of United States federal and state securities Laws or the securities Laws of other applicable jurisdictions) with respect to the Company, any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing (“MNPI”), and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Company and each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Company and the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.08); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Side Information;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated as “Public Side Information”.
SECTION 7.03.    Notices.
Promptly notify the Administrative Agent (which will make such notice available to each Lender):
(a)    of the occurrence of any Default;

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(b)    of any matter that has resulted or would reasonably be expected to result in a Material Adverse Effect; and
(c)    if unrated, any announcement by Moody’s, S&P or Fitch of any Debt Rating, or if rated, any announcement by Moody’s, S&P or Fitch of any change or possible change in a Debt Rating.
Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and, in the case of any notice pursuant to clause (a) or (b) of this Section 7.03, stating what action the Company has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached or on account of which a Default otherwise arises.
SECTION 7.04.    Payment of Obligations.
Pay and discharge as the same shall become due and payable, (a) all material Taxes imposed upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings and adequate reserves in accordance with GAAP are being maintained by the Company or such Subsidiary, (b) all lawful claims that, if unpaid, would by law become a Lien upon its property (other than a Lien permitted by Section 8.01) and (c) except where the failure to so pay or discharge would not reasonably be expected to have a Material Adverse Effect, all other obligations and liabilities.
SECTION 7.05.    Preservation of Existence, Etc.
(a)    Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its incorporation or organization except in a transaction permitted by Section 8.02; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks the non-preservation of which would reasonably be expected to have a Material Adverse Effect.
SECTION 7.06.    Maintenance of Properties.
Maintain, preserve and protect all of its material properties and material equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear and damage by casualty or condemnation excepted.
SECTION 7.07.    Maintenance of Insurance.
Maintain, with financially sound and reputable insurance companies not Affiliates of the Company, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types

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and in such amounts (after giving effect to any self-insurance compatible with the following standards) as are customarily carried under similar circumstances by such other Persons.
SECTION 7.08.    Compliance with Laws.
Comply in all material respects with the requirements of all Laws applicable to it or to its business or property, except in such instances in which (i) such requirement of Law is being contested in good faith by appropriate proceedings or (ii) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect; and maintain in effect and enforce policies and procedures reasonably designed to promote and achieve compliance by the Company, the Borrowers, their Subsidiaries and their respective directors, officers, employees and agents with applicable anti-corruption Laws and applicable Sanctions. Notwithstanding the foregoing reference in this Section 7.08 to compliance by Albemarle Germany, Albemarle Finance and their respective Subsidiaries with applicable Sanctions, Albemarle Germany, Albemarle Finance and their respective Subsidiaries shall not be obliged to comply with Section 7.08 to the extent that such compliance would result in a violation of or exposure of such entity or any director, officer or employee thereof to any liability under Mandatory Restrictions.
SECTION 7.09.    Books and Records.
Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company or such Subsidiary, as the case may be, in each case as required by GAAP; and maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Company or such Subsidiary, as the case may be.
SECTION 7.10.    Inspection Rights.
Upon the request of the Administrative Agent on behalf of any Lender, permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants (provided, that a representative of the Company, any of the Borrowers or any Subsidiary shall be entitled to attend any such meetings with such independent public accountants), all at the expense of the Lenders when no Event of Default exists, and at such reasonable times during normal business hours, upon reasonable advance notice to the Company and no more than once per year; provided, however, that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Company at any time during normal business hours and without advance notice; provided, further that notwithstanding anything to the contrary herein, none of the Company, the Borrowers or any Subsidiary shall be required to disclose, permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information or other matter (a) that constitutes non-financial trade secrets or non-financial proprietary information of the Company and its Subsidiaries and/or any of its customers and/or suppliers, (b) in respect of which disclosure to the Administrative Agent or

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any Lender (or any of their respective representatives or agents) is prohibited by applicable Law, (d) that is subject to attorney-client or similar privilege or (d) in respect of which the Company, any Borrower or any Subsidiary owes confidentiality obligations to any third party (it being understood that the Company or any of the Subsidiaries shall inform the Administrative Agent of the existence and nature of the confidential records, documents or other information not being provided and, following a reasonable request from the Administrative Agent, use commercially reasonable efforts to request consent from an applicable contractual counterparty to disclose such information (but shall not be required to incur any cost or expense or pay any consideration of any type to such party in order to obtain such consent)).
SECTION 7.11.    Use of Proceeds.
Use the proceeds of the Loans solely (a) to fund the payment of the consideration under, and the payment of fees and expenses incurred in connection with, the transactions contemplated by this Agreement and the Acquisition Agreement and (b) for general corporate purposes of the Company and its Subsidiaries.

ARTICLE VIII

Negative Covenants
So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim or demand has been made), neither the Company nor any Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly:
SECTION 8.01.    Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)    Liens pursuant to any Loan Document;
(b)    Liens existing on the date hereof and listed on Schedule 8.01 and any renewals or extensions thereof; provided that the scope of the property covered thereby is not increased;
(c)    Liens for Taxes that are (i) not delinquent or (ii) being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d)    carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person;

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(e)    pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f)    deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation, which are covered in clause (h) below), performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g)    easements, rights-of-way, restrictions and other similar encumbrances affecting real property that, in the aggregate, are not substantial in amount and that do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(h)    Liens securing judgments for the payment of money which do not constitute Events of Default hereunder;
(i)    Liens securing, or in respect of, Indebtedness in respect of capital leases, Synthetic Leases and purchase money obligations for fixed or capital assets (including, but not limited to, any such Lien granted within 180 days of the acquisition of such fixed or capital asset); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(j)    Liens on property or assets of the Company or any Subsidiary granted in connection with Sale and Leaseback Transactions; provided that the aggregate Attributable Principal Amount in connection with such Sale and Leaseback Transactions shall not at any time be in excess of $100,000,000;
(k)    Liens on property or assets of the Company or any Subsidiary granted in connection with Securitization Transactions;
(l)    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;
(m)    licenses of intellectual property rights in the ordinary course of business;
(n)    Liens on the property and assets of any Person to the extent such Liens are existing at the time such Person becomes a member of the Consolidated Group, and any renewals, extensions or replacements thereof so long as the scope of the property covered thereby is not increased; provided such Liens are not created in contemplation thereof and do not extend to any property or assets of any other member of the Consolidated Group;

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(o)    Liens on property or assets of the Company and any Subsidiary granted in connection with environmental remediation or similar obligations with respect to such property or assets not to exceed $100,000,000 in the aggregate;
(p)    Liens in favor of the United States or any state thereof, or any agency, instrumentality or political subdivision of any of the foregoing, to secure partial, progress, advance or other payments or performance pursuant to the provisions of any contract or statute, to the extent not constituting Indebtedness;
(q)    precautionary filings of Uniform Commercial Code financing statements (or any applicable local law equivalent) in respect of operating leases or consignment of goods;
(r)    with respect to any real property occupied, owned or leased by the Company or any of its Subsidiaries, (i) leases, subleases, tenancies, options, concession agreements, rental agreements occupancy agreements, franchise agreements, access agreements and any other agreements, whether or not of record and whether now in existence or hereafter entered into, of the real properties of the Company or any Subsidiary granted by such Person to third parties, in each case entered into in the ordinary course of such Person’s business and so long as, to the extent such real properties are subject to Liens, such Liens do not materially interfere with the ordinary conduct of business of the Company and its Subsidiaries, taken as a whole, and do not materially impair the use of such property for its intended purposes;
(s)    Liens arising by operation of law under Article 4 of the Uniform Commercial Code (or any applicable local law equivalent) in connection with collection of items provided for therein or under Article 2 of the Uniform Commercial Code (or such applicable local law equivalent) in favor of a reclaiming seller of goods or buyer of goods;
(t)    rights of setoff or bankers’ liens of banks or other financial institutions where Company or any of its Subsidiaries maintain deposits in the ordinary course of business and which are within the general parameters customary in the banking industry, including Liens arising under article 24 or 25 of the general terms and conditions (algemene bankvoorwaarden) of any member of the Dutch Banker’s Association (Nederlandse Vereniging van Banken) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and conditions;
(u)    Liens attaching solely to (i) cash earnest money deposits in connection with any letter of intent or purchase agreement and (ii) proceeds of an asset disposition permitted hereunder that are held in escrow to secure obligations under the sale documentation relating to such disposition;
(v)    any leases, subleases, licenses or sublicenses granted to others in the ordinary course of business of the Company and its Subsidiaries which do not materially interfere with the ordinary conduct of business of the Company and its Subsidiaries;
(w)    any laws, regulations or ordinances now or hereafter in effect (including, but not limited to, zoning, building and environmental protection) as to the use, occupancy,

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subdivision or improvement of real property occupied, owned or leased the Company or any of its Subsidiaries adopted or imposed by any Governmental Authority;
(x)    Liens of landlords under leases where the Company or any of its Subsidiaries is the tenant, securing performance by the tenant under the lease arising by statute or under any lease or related contractual obligation entered into in the ordinary course of business;
(y)    (i) Liens that are customary contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Company or any Subsidiary to permit satisfaction of overdraft or similar obligations or to secure negative cash balances in local accounts of foreign Subsidiaries incurred in the ordinary course of business of the Company or any Subsidiary, (C) purchase orders and other agreements entered into with customers of the Company or any Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage accounts incurred in the ordinary course of business and (ii) Liens on the proceeds of any Indebtedness incurred in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of proceeds to finance such transaction;
(z)    Liens securing insurance premium financing arrangements; provided, that such Liens only encumber the insurance premiums, policies or dividends with respect to the policies that were financed with the funds advanced under such arrangements;
(aa)    Liens on cash or cash equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
(bb)    Liens arising out of conditional sale, title retention, consignment, bailment or similar arrangements for the purchase, sale or shipment of goods entered into in the ordinary course of business;
(cc)    Liens (i) on cash advances or escrow deposits in favor of the seller of any property to be acquired by the Company or any Subsidiary to be applied against the purchase price therefor or otherwise in connection with any escrow arrangements with respect thereto or in connection with any disposition permitted under Section 8.02 and (ii) consisting of an agreement to dispose of any property in a disposition permitted under Section 8.02 solely to the extent such disposition would have been permitted on the date of the creation of such Lien;
(dd)    in respect of Albemarle Wodgina, Liens created pursuant to the Deed of Cross Security in favor of the manager of, or the joint venture participant in, the Wodgina Lithium Joint Venture; provided that such Liens do not secure any Indebtedness; and
(ee)    Liens other than those referred to in clauses (a) through (dd) above, provided, however, that the aggregate principal amount of obligations secured by such Liens plus the aggregate principal amount of unsecured Indebtedness of Subsidiaries of the Company

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outstanding pursuant to Section 8.07(g) does not exceed 30% of Consolidated Net Tangible Assets as appearing in the latest balance sheet delivered pursuant to Section 7.01 (or, prior to the first such delivery, referred to in Section 6.05).
SECTION 8.02.    Mergers, Dispositions, Etc.
Merge into, amalgamate or consolidate with any other Person, or permit any other Person to merge into, amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) or any capital stock of any Subsidiary, except that:
(a)    any member of the Consolidated Group may purchase and sell inventory in the ordinary course of business;
(b)    if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, (i) any Subsidiary or any other Person may merge into, amalgamate with, consolidate with or liquidate or dissolve into the Company or any of its Subsidiaries; provided that (A) if the Company is a party to such transaction, the Company is the surviving corporation and (B) if a Borrower is a party to such transaction, such Borrower shall be the surviving entity, and (ii) any Subsidiary may merge into, amalgamate with, consolidate with or, other than in the case of any Borrower, liquidate or dissolve into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary and no Person other than the Company or a Subsidiary receives any consideration therefor (except in the case of a non-wholly-owned Subsidiary, minority equity holders may receive their ratable share of consideration); provided that if any such Subsidiary is a Domestic Subsidiary, the surviving entity is a Domestic Subsidiary and if any such Subsidiary is a Borrower, such Borrower is the surviving entity;
(c)    the Company may sell all or any portion of the capital stock of any Subsidiary (other than a Borrower) for fair market value, as determined in good faith by the Company’s board of directors; provided such sale does not constitute a sale of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole; and
(d)    the Company may (i) transfer, or cause to be transferred, all or any portion of the capital stock of any wholly owned Subsidiary to another wholly owned Subsidiary and (ii) sell any portion of the capital stock of any Subsidiary (other than a Borrower) in connection with the establishment of a joint venture for the purpose of developing or continuing a product or business related to any of the Company’s existing lines of business as of the date of this Agreement.
SECTION 8.03.    Change in Nature of Business.
Engage in any material line of business substantially different from those lines of business conducted by the Consolidated Group on the date hereof or any business similar, complementary, ancillary, reasonably related or incidental thereto.

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SECTION 8.04.    Transactions with Affiliates.
Enter into any transaction of any kind with any Affiliate of the Company, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Company or such Subsidiary as would be obtainable by the Company or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that the foregoing restriction (a) shall not apply to transactions between or among the Company and the Borrowers, (b) shall not restrict dividends or distributions on account of shares of equity interests issued by Subsidiaries of the Company ratably to the holders thereof, (c) shall not apply to transactions between or among the members of the Consolidated Group and their Affiliates that are necessary or required under applicable Law or by any Governmental Authority and (d) shall not apply to other transactions between or among any members of the Consolidated Group that are not prohibited by this Agreement (other than this Section 8.04).
SECTION 8.05.    Use of Proceeds.
Use the proceeds of any Loan, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose, in each case in violation of, or for a purpose that violates, Regulation T, U or X of the FRB.
SECTION 8.06.    Financial Covenant.
Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company to be greater than 3.50:1.00; provided that upon consummation of an Acquisition where the consideration includes cash proceeds from the issuance of Funded Debt in excess of $500,000,000, the otherwise applicable maximum Consolidated Leverage Ratio, at the election of the Company (with prior written notice to the Administrative Agent), shall increase by 0.50:1.00 for four consecutive fiscal quarters beginning with the fiscal quarter in which such Acquisition occurs (the “Adjustment Period”); provided further that after any such Acquisition that results in an Adjustment Period, there must be at least two fiscal quarters subsequent to the end of the Adjustment Period before the Company shall be permitted to elect another Adjustment Period. The Company shall be permitted to request no more than two Adjustment Periods during the term of this Agreement; provided, however, in connection with the extension of the Maturity Date pursuant to Section 2.15, the Company shall have the right to request an additional Adjustment Period.
SECTION 8.07.    Subsidiary Indebtedness.
Permit any Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except:
(a)    Indebtedness under the Revolving Credit Agreement; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the principal amount permitted to be incurred by the Subsidiaries under the Revolving Credit Agreement as in effect on the Closing Date;

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(b)    intercompany Indebtedness among the Company and its Subsidiaries or among Subsidiaries;
(c)    Indebtedness of any Person to the extent such Indebtedness is existing at the time such Person becomes a member of the Consolidated Group and, any refinancings, replacements or extensions thereof so long as the amount of such Indebtedness, plus any accrued and unpaid interest, plus any reasonable penalty, premium or defeasance costs and reasonable fees and expenses incurred in connection with such refinancings, replacements or extensions, is not increased at the time of such refinancing, replacement or extension; provided such (i) Indebtedness is not created in contemplation thereof and (ii) the scope of obligors liable for such Indebtedness is not increased;
(d)    obligations (contingent or otherwise) existing or arising under any Swap Contract; provided that such obligations are (or were) entered into by such Subsidiary for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Subsidiary, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;”
(e)    Indebtedness in respect of capital leases, Synthetic Leases and purchase money obligations for fixed or capital assets;
(f)    to the extent constituting Indebtedness, obligations in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided in the ordinary course of business;
(g)    (i) Indebtedness under the Loan Documents and (ii) other Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness under this Section 8.07(g) shall not exceed the difference between (A) 30% of Consolidated Net Tangible Assets as appearing in the latest balance sheet delivered pursuant to Section 7.01 (or, prior to the first such delivery, referred to in Section 6.05) minus (B) the aggregate outstanding principal amount of Indebtedness of the Company secured by Liens permitted by Section 8.01(ee); and
(h)    any guarantee given pursuant to section 8a of the German Act on Partial Retirement (Altersteilzeitgesetz) or section 7e of the Fourth Book of the German Social Code (Sozialgesetzbuch IV).
SECTION 8.08.    Sanctions.
Directly, or knowingly indirectly, use any Loan or the proceeds of any Loan, or lend, contribute or otherwise make available any Loan or the proceeds of any Loan to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions. Notwithstanding the foregoing, this Section 8.08 shall not apply to or in relation to Albemarle Germany, Albemarle Finance or any of their respective

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Subsidiaries to the extent that such undertaking would result in a violation of or exposure of such entity or any director, officer or employee thereof to any liability under Mandatory Restrictions.
SECTION 8.09.    Anti-Corruption Laws.
Directly, or knowingly indirectly, use any Loan or the proceeds of any Loan for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 or other similar legislation in other jurisdictions that are applicable to the Company or its Subsidiaries.

ARTICLE IX

Events of Default and Remedies
SECTION 9.01.    Events of Default.
Any of the following shall constitute an “Event of Default”:
(a)    Non-Payment. The Company or any Borrower fails to pay (i) when and as required to be paid herein, in the currency required hereunder, any amount of principal of any Loan, (ii) within five Business Days after the same becomes due, any interest on any Loan or any ticking fee or other fee due hereunder or (iii) within five Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document;
(b)    Specific Covenants. The Company or any Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 7.03, 7.05 or 7.11 or Article VIII;
(c)    Other Defaults. The Company or any Borrower fails to perform or observe any other covenant or agreement (not specified in clause (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the earlier to occur of notice thereof from the Administrative Agent or any Responsible Officer of the Company or any Borrower having actual knowledge of such failure;
(d)    Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Company or any Borrower herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(e)    Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount

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(including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount and the continuation of such failure beyond any applicable grace or cure period, or (B) after giving effect to any applicable grace or cure period, fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Company or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Company or such Subsidiary as a result thereof is greater than the Threshold Amount and, in the case of any Termination Event not arising out of a default by the Company or any Subsidiary, such Swap Termination Value has not been paid by the Company or such Subsidiary when due;
(f)    Insolvency Proceedings, Etc. The Company, any Borrower or any other Subsidiary (other than an Immaterial Subsidiary) institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undismissed for 60 consecutive calendar days or an order or decree approving or ordering such appointment shall continue unstayed for 30 consecutive calendar days; or any proceeding under any Debtor Relief Law in respect of any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed for 60 consecutive calendar days, or an order or decree approving or ordering such proceeding shall have been entered;
(g)    Inability to Pay Debts; Attachment.
(i)    The Company, any Borrower or any other Subsidiary (other than an Immaterial Subsidiary) becomes unable or admits in writing its inability or fails generally to pay its debts as they become due; or
(ii)    Any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person

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and such process, if not fully bonded, continues undismissed for sixty consecutive calendar days, or an order or decree approving or ordering such process shall continue unstayed for thirty calendar days;
(h)    Judgments. There is entered against the Company or any Subsidiary (i) a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) or (ii) any one or more non-monetary final judgments that have, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 45 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
(i)    ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that has resulted or would reasonably be expected to result in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Company or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount;
(j)    Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or as a result of the satisfaction in full of all the Obligations (other than contingent indemnification obligations for which no claim or demand has been made), ceases to be in full force and effect; or the Company, any Borrower or any other Subsidiary contests in any manner the validity or enforceability of any Loan Document; or the Company or any Borrower denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or
(k)    Change of Control. There occurs any Change of Control.
SECTION 9.02.    Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a)    declare the Commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligation shall be terminated; and
(b)    declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand,

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protest or other notice of any kind, all of which are hereby expressly waived by the Loan Parties;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code of the United States (or any other applicable Debtor Relief Laws), the obligation of each Lender to make Loans shall immediately and automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall immediately and automatically become due and payable, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Loan Parties, and without further act of the Administrative Agent or any Lender.
SECTION 9.03.    Application of Funds.
After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 9.02), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the Lenders and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Third held by them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full (other than contingent indemnification obligations for which no claim or demand has been made), to the Company or as otherwise required by Law.


ARTICLE X

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Administrative Agent
SECTION 10.01.    Appointment and Authority.
Each of the Lenders hereby irrevocably appoints JPMorgan to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article X are, other than with respect to the Company’s consent rights in Section 10.06, solely for the benefit of the Administrative Agent and the Lenders, and, except for such consent rights, neither the Company nor any Borrower shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
SECTION 10.02.    Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 10.03.    Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(a)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or

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the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(c)    shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 11.01) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice (stating that it is a “notice of default”) describing such Default is given in writing to the Administrative Agent by the Company or a Lender. The Administrative Agent shall be deemed to have no knowledge of any Lender being a Restricted Lender unless and until the Administrative Agent shall have received the written notice from such Lender referred to in Section 1.06, and then only as and to the extent specified in such notice, and any determination of whether the Required Lenders or any other requisite Lenders shall have provided a consent or direction in connection with this Agreement or any other Loan Document shall not be affected by any delivery to the Administrative Agent of any such written notice subsequent to such consent or direction being provided by the Required Lenders or other requisite Lenders.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent.
SECTION 10.04.    Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated

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by the proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof), and shall not incur any liability for relying thereon. In determining compliance with any condition under Article V that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the Closing Date or the applicable Funding Date, as applicable. The Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 10.05.    Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub‑agents appointed by the Administrative Agent. The Administrative Agent and any such sub‑agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub‑agent and to the Related Parties of the Administrative Agent and any such sub‑agent, and shall apply to their respective activities in connection with the syndication of the credit facility provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
SECTION 10.06.    Resignation of Administrative Agent.
(a)    The Administrative Agent may at any time give notice of its resignation to the Lenders and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, and, at all times other than during the existence of an Event of Default, with the Company’s consent (such consent not to be unreasonably withheld), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b)    If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable

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Law, by notice in writing to the Company and such Person remove such Person as Administrative Agent and, in consultation with the Company and, at all times other than during the existence of an Event of Default, with the Company’s consent (such consent not to be unreasonably withheld), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c)    With effect from the Resignation Effective Date or the Removal Effective Date, as applicable, (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 3.01(h) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article X and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
SECTION 10.07.    Non-Reliance on Administrative Agent and Other Lenders.
Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

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SECTION 10.08.    No Other Duties, Etc.
Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication agents, documentation agents, co-agents, or book managers listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder and its rights in respect of indemnities provided for hereunder.
No bookrunner, arranger, syndication agent, documentation agent, co-agent or book manager listed on the cover page hereof shall have or deemed to have any fiduciary relationship with any Lender.
SECTION 10.09.    Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or any Borrower, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Company or any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.09 and 11.04) allowed in such judicial proceeding; and
(b)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

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SECTION 10.10.    ERISA Matters.
(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent and each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Company or any Borrower, that at least one of the following is and will be true:
(i)    such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments,
(ii)    the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv)    such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)    In addition, unless subclause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in subclause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Company or any Borrower, that:

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(i)    none of the Administrative Agent or any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),
(ii)    the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii)    the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
(iv)    the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Internal Revenue Code, or both, with respect to the Loans, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v)    no fee or other compensation is being paid directly to the Administrative Agent or any Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Commitments or this Agreement.
(c)    The Administrative Agent and each Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

ARTICLE XI

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Miscellaneous
SECTION 11.01.    Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any Borrower therefrom, shall be effective unless in writing signed by the Required Lenders, the Company and the Borrowers and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a)    extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written consent of such Lender, it being understood that a waiver of any condition precedent set forth in Section 5.02 or of an Event of Default or an amendment or waiver of Section 2.05(b) is not considered an increase in Commitments;
(b)    postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest or fees due to any Lender hereunder or under any other Loan Document without the written consent of such Lender; provided, however, that only the consent of the Required Lenders shall be necessary to amend or waive Section 2.05(b);
(c)    reduce the principal of, or the rate of interest specified herein on, any Loan, or any fees payable hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such amount; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” (or to waive any obligation of the Company or any Borrower to pay interest at the Default Rate) or to amend or waive Section 2.05(b);
(d)    change Section 2.13 or Section 9.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly affected thereby;
(e)    change any provision of this Section or the percentage set forth in the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent thereunder without the written consent of each Lender;
(f)    change the currency in which any Loan is or may be denominated; or
(g)    release the Company from its obligations under the Guaranty or consent to the assignment of the Company’s or any Borrower’s rights and obligations hereunder without the written consent of each Lender;

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provided further that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document and (ii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein.
Notwithstanding anything to the contrary herein: (i) the Administrative Agent and the Company may make amendments contemplated by Sections 2.15 and 3.03(b); (ii) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (A) the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Lender and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects such Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; and (iii) the Administrative Agent and the Company may amend, modify or supplement this Agreement or any other Loan Document to cure or correct administrative errors or omissions, any ambiguity, omission, defect or inconsistency or to effect administrative changes, and such amendment shall become effective without any further consent of any other party to such Loan Document so long as (A) such amendment, modification or supplement does not adversely affect the rights of any Lender in any material respect and (B) the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment. The Administrative Agent may, but shall have no obligation to, with the written concurrence of any Lender, execute amendments, waivers or consents on behalf of such Lender. Any amendment, waiver or consent effected in accordance with this Section 11.01 shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.
SECTION 11.02.    Notices; Effectiveness; Electronic Communication.
(a)    Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 11.02(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)    if to the Company, the Borrowers or the Administrative Agent, to the address, facsimile number, e-mail address or telephone number specified for such Person on Schedule 11.02; and
(ii)    if to any Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate,

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notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain MNPI).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in Section 11.02(b) shall be effective as provided in Section 11.02(b).
(b)    Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e‑mail, FpML messaging and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under Article II by electronic communication. Each of the Administrative Agent, the Company and the Borrowers may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c)    The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Company, any Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Company’s, any Borrower’s or the Administrative Agent’s

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transmission of Borrower Materials or any other information through the Internet, telecommunications, electronic or other information transmission systems, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Company, any Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d)    Change of Address, Etc. The Company, each of the Borrowers and the Administrative Agent may change its address, facsimile or telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each Lender may change its address, facsimile or telephone number or e-mail address for notices and other communications hereunder by notice to the Company and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI.
(e)    Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices and Loan Notices) purportedly given by or on behalf of the Company or any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Company shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Company or any Borrower, except to the extent that such losses, costs, expenses or liabilities are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement or any other Loan Document by, the Administrative Agent, such Lender or such Related Party.
All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
SECTION 11.03.    No Waiver; Cumulative Remedies; Enforcement.
No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other

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Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document (including the imposition of the Default Rate) preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by Section 11.01, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the execution and delivery of this Agreement or the making of any Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Related Party of any of the foregoing may have had notice or knowledge of such Default at the time.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Company and the Borrowers or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 11.09 (subject to the terms of Section 2.13), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relating to the Company or any Borrower under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
SECTION 11.04.    Expenses; Indemnity; Damage Waiver.
(a)    Costs and Expenses. The Loan Parties shall pay (i) all reasonable out‑of‑pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facility provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out‑of‑pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender) in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including

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all such out‑of‑pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans; provided that pursuant to this clause (ii), the Loan Parties shall not be required to reimburse such fees, charges and disbursements of more than one counsel to the Administrative Agent and all the Lenders, taken as a whole, in each of the United States, Australia, the Netherlands and Germany and if necessary, one local domestic or foreign counsel in any other relevant domestic or foreign jurisdiction, to the Administrative Agent and the Lenders, taken as a whole, unless the representation of one or more Lenders by such counsel would be inappropriate due to the existence of an actual or potential conflict of interest, in which case, upon prior written notice to the Company, the Loan Parties shall also be required to reimburse the reasonable fees, charges and disbursements of one additional counsel to such affected Lenders in each relevant jurisdiction. The obligations under this Section 11.04(a) of each Borrower shall be several, and not joint, with such obligations of any other Loan Party.
(b)    Indemnification. The Loan Parties shall indemnify the Administrative Agent (and any sub-agent thereof) and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of one counsel to the Indemnitees, taken as a whole, in each of the United States, Australia, the Netherlands and Germany and if necessary, one local domestic or foreign counsel in any other relevant domestic or foreign jurisdiction, to the Indemnitees, taken as a whole, unless the representation of one or more Indemnitees by such counsel would be inappropriate due to the existence of an actual or potential conflict of interest, in which case, upon prior written notice to the Company, the Loan Parties shall also be required to reimburse the reasonable fees, charges and disbursements of one additional counsel to such affected Indemnitees in each relevant jurisdiction), actually incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Company or any Borrower) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related in any way to the Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any Borrower, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Indemnitees, (y) result from a claim brought by the Company or any Borrower against such Indemnitee for material breach of such Indemnitee’s (or any of its Related Indemnitee’s) obligations hereunder or under any other Loan Document, if the Company or such Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction

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or (z) arise solely from a dispute among the Indemnitees (except when and to the extent that one of the Indemnitees party to such dispute was acting in its capacity or in fulfilling its role as Administrative Agent, Arranger or any similar role under this Agreement or any other Loan Document) that does not involve any act or omission of the Company or any of its Affiliates. The Loan Parties shall not be liable for any settlement entered into by an Indemnitee without the prior written consent of the Company (such consent shall not be unreasonably withheld, delayed or conditioned), but if settled with the Company’s written consent, or if there is a final and nonappealable judgment by a court of competent jurisdiction in any such claim, litigation, investigation or proceeding, the Loan Parties agree to indemnify and hold harmless each Indemnitee in the manner and to the extent set forth above; provided that the Company shall be deemed to have consented to any such settlement unless the Company shall object thereto by written notice to the applicable Indemnitee within 10 Business Days after having received written notice thereof. Without limiting the provisions of Section 3.01(c), this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, liabilities, etc. arising from any non-Tax claim. The obligations under this Section 11.04(b) of each Borrower shall be several, and not joint, with such obligations of any other Loan Party.
(c)    Reimbursement by Lenders. To the extent that any Loan Party for any reason fails to indefeasibly pay any amount required under Section 11.04(a) or 11.04(b) to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of the Administrative Agent (or any sub-agent thereof), but without affecting the Loan Parties’ obligations to make such payments, each Lender severally, but not jointly, agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the outstanding Loans and unfunded Commitments) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this Section 11.04(c) are subject to the provisions of Section 2.12(d).
(d)    Waiver of Consequential Damages, Etc. Without limiting the Loan Parties’ indemnification obligations above, to the fullest extent permitted by applicable Law, no party hereto shall assert, and each other party hereto hereby waives, any claim against any other party hereto (or any Indemnitee or any Related Party), on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof (other than in respect of any such damages incurred or paid by an Indemnitee to a third party and to which such Indemnitee is otherwise entitled to indemnification as provided above). No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions

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contemplated hereby or thereby, other than for direct or actual damages resulting from the gross negligence, bad faith or willful misconduct of such Indemnitee (or its Related Indemnitees) as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e)    Payments. All amounts due under this Section 11.04 shall be payable not later than 10 Business Days after written demand therefor.
(f)    Survival. The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
SECTION 11.05.    Concerning Several Liability of the Borrowers.
Notwithstanding any provision to the contrary contained herein or in any other Loan Document, the Obligations of the Borrowers are several and not joint, and no Borrower shall be deemed a guarantor or surety of any Obligation of any other Loan Party.
SECTION 11.06.    Payments Set Aside.
To the extent that any payment by or on behalf of the Company or any Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof (or the Dollar Equivalent amount thereof) is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other Person, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (b) each Lender severally agrees to pay, in the applicable currency, to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or paid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to (i) in the case of any such payment in Dollars, the greater of (A) the NYFRB Rate and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of any such payment in Euros or any other currency, the greater of (A) the rate reasonably determined by the Administrative Agent to be the cost to it of funding such amount (which determination will be conclusive absent manifest error) and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, in each case, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
SECTION 11.07.    Successors and Assigns.

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(a)    Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that neither the Company nor any Borrower may assign or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with Section 11.07(b), (ii) by way of participation in accordance with Section 11.07(d) or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.07(f) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.07(d), the Indemnitees and, to the extent expressly contemplated hereby, the sub-agents of the Administrative Agent and the Related Parties of any of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment or the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i)    Minimum Amounts.
(A)    in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans or contemporaneous assignments to related Approved Funds that equal at least the amount specified in subsection (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B)    in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment or the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption (or an agreement incorporating by reference a form of Assignment and Assumption posted on the Platform) with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption (or such an agreement), as of the Trade Date, shall not be less than $5,000,000 (€5,000,000 in the case of Loans denominated in Euros) unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed);
provided that, notwithstanding anything to the contrary set forth above, the aggregate amount of the Commitment or the aggregate principal amount of the Loans of the assigning Lender subject to each such assignment shall not be less than (i) €100,000,

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in the case of Loans denominated in Euros or (ii) the Dollar Equivalent of €100,000, in the case of the Commitments or in the case of Loans denominated in Dollars.
(ii)    Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment, it being understood that this clause (iii) shall not be construed to prohibit the assignment of (x) a proportionate part of all the assigning Lender’s rights and obligations in respect of its Commitment without assigning a proportionate part of the assigning Lender’s Loans, (y) a proportionate part of all the assigning Lender’s rights and obligations in respect of its Loans without assigning a proportionate part of the assigning Lender’s Commitment and (z) a proportionate part of all the assigning Lender’s rights and obligations in respect of its Loans made to any Borrower without assigning a proportionate part of the assigning Lender’s Loans made to the other Borrower.
(iii)    Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A)    the consent of the Company (such consent not to be unreasonably withheld or delayed; provided that it shall be reasonable for the Company to withhold consent if such Person does not provide to the Company the information required under Section 11.15) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; and
(B)    the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.
(iv)    Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption (or an agreement incorporating by reference a form of Assignment and Assumption posted on the Platform), together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and deliver to the Administrative Agent and the Company certification as to exemption (or reduction) for deduction or withholding of Taxes in accordance with Section 11.15 and shall be subject to the provisions of such Section.
(v)    No Assignment to Certain Persons. No such assignment shall be made to (A) the Company or any of the Company’s Affiliates or Subsidiaries, (B) any Defaulting Lender or any of its Subsidiaries, or any Person that, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (C) a natural person (or a holding company, investment vehicle or trust for, or owned and operated for

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the primary benefit of a natural person) or (D) any Person that is part of the public (within the meaning of the Capital Requirements Regulation (EU/575/2013)).
(vi)    No Assignment Resulting in Additional Indemnified Taxes, etc. Without the written consent of the Company, no such assignment shall be made to any Person that, on the effective date of such assignment, through its Lending Offices, (A) is not capable of lending to the Borrowers without the imposition of any additional Taxes that would require indemnification payments by any of the Borrowers under this Agreement except, to the extent that such assigning Lender was entitled, at the time of the assignment, to receive additional amounts from the Loan Parties with respect to such Taxes pursuant to Section 3.01 or (B) is not capable of lending at the applicable interest rates.
(vii)    Not Less than Two Lenders. No such assignment shall be made if, immediately after giving effect thereto, there shall be fewer than two Lenders.
(viii)    Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Company and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) fund its full pro rata share of all Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.07(c), from and after the effective date specified in each Assignment and Assumption (or an agreement incorporating by reference a form of Assignment and Assumption posted on the Platform), the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s

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having been a Defaulting Lender. Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.07(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.07(d).
(c)    Register. (i) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers (and such agency being solely for tax purposes), shall maintain at one of its offices located in the United States a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Company, the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company, each of the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(i)    Upon receipt by the Administrative Agent of an Assignment and Assumption (or an agreement incorporating by reference a form of Assignment and Assumption posted on the Platform) executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder) and the processing and recordation fee referred to above, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that the Administrative Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section 11.07 or is otherwise not in proper form. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 11.07(c)(ii). Each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the assigning Lender and the Administrative Agent that such assignee is not a Person made ineligible under Section 11.07(b)(v).
(d)    Participations. Any Lender may at any time, without the consent of, or notice to, the Company, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) or the Company or any of the Company’s Affiliates or Subsidiaries or a Defaulting Lender) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment or Loans); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Company, the Borrowers, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights

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and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, waiver or consent of or under any provision of this Agreement and the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or consent described in the first proviso to Section 11.01 that affects such Participant. The Company and the Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.07(b) (it being understood that the documentation required under Section 11.15 shall be delivered to the Lender that sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.07(b); provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.16 as if it were an assignee under Section 11.07(b) and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, unless the Company consented to the applicable participation. Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate with the Company to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 11.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitment, Loan or other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e)    Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority in other applicable jurisdictions; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 11.08.    Confidentiality.

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Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates, its auditors and its and its Affiliates’ respective Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent required or requested by any regulatory authority; (c) to the extent required by applicable Laws or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant (or its Related Parties) in, or any prospective assignee of or Participant (or its Related Parties) in, any of its rights or obligations under this Agreement or to any Eligible Assignee (or its Related Parties) invited to become a Lender pursuant to Section 2.01(b) (it being understood that the Related Parties to whom such disclosure is made be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) any direct or indirect contractual counterparty or prospective counterparty (or its Related Parties) to any swap, derivative or other transaction relating to obligations of the Company or the Borrowers or (iii) any credit insurance provider relating to the Company or the Borrowers and their obligations; (g) with the consent of the Company; (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent or any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Company; (i) to the National Association of Insurance Commissioners or any other similar organization or any nationally recognized rating agency that requires access to information about a Lender’s or its Affiliates’ investment portfolio in connection with ratings issued with respect to such Lender or its Affiliates; or (j) on a confidential basis to (i) any rating agency in connection with rating the Company, any Borrower or its Subsidiaries or the credit facility provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments and the Loans. For the purposes of this Agreement, “Information” means all information received from the Company, any Borrower or any Subsidiary relating to the Company, any Borrower, any Subsidiary or their businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Company, any Borrower or any Subsidiary; provided that, in the case of information received from the Company, a Borrower or a Subsidiary after the date hereof, such information is clearly identified in writing at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may include MNPI, (b) it has developed compliance procedures regarding the use of

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MNPI and (c) it will handle MNPI in accordance with applicable Law, including United States Federal and state securities Laws.
Each of the Administrative Agent and the Loan Parties agree to keep each COF Rate confidential and not to disclose it to any other Person, and the Company further agrees to cause its Subsidiaries not to disclose any COF Rate to any other Person, except that (a) in the event a EURIBOR Borrowing is to bear interest by reference to the Average COF Rate as provided in Section 3.03, the Administrative Agent shall promptly disclose the COF Rate of each Lender, as communicated by such Lender to the Administrative Agent, to the Company, and (b) each of the Administrative Agent and the Loan Parties may disclose any COF Rate (i) to any of its Affiliates and any of its or their respective Related Parties or auditors; provided that any such Person to whom such COF Rate is to be disclosed is informed in writing of its confidential nature and that it may be price-sensitive information; provided, however, that there shall be no requirement to so inform such Person if, in the opinion of the disclosing party, it is not practicable to do so under the circumstances, (ii) to any Person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the Person to whom such COF Rate is to be disclosed is informed in writing of its confidential nature and that it may be price-sensitive information; provided, however, that there shall be no requirement to so inform such Person if, in the opinion of the disclosing party, it is not practicable to do so under the circumstances, or (iii) to the extent required by applicable Law or by any subpoena or similar legal process. The Administrative Agent and the Loan Parties agree to, and the Company shall cause its Subsidiaries to, to the extent permitted by applicable Law, (x) inform each relevant Lender of the circumstances of any disclosure made pursuant to this paragraph and (y) notify each relevant Lender upon becoming aware that any information has been disclosed in breach of this paragraph. No Default or Event of Default shall arise under Section 9.01(c) solely by reason of the failure of the Company, any Borrower or any other Subsidiary to comply with this paragraph.
SECTION 11.09.    Set-off.
In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of any Event of Default, each Lender and any Affiliate of any Lender is authorized at any time and from time to time, without prior notice to the Company or any Borrower, any such notice being waived by the Company and each Borrower to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held by, and other Indebtedness at any time owing by, such Lender or such Affiliate to or for the credit or the account of the Company or any Borrower against any and all Obligations owing to such Lender or such Affiliate hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or owed to a branch or office or Affiliate of such Lender or denominated in a currency different from the branch or office or Affiliate holding such deposit or obligated on such indebtedness. Each Lender agrees promptly to notify the Company and the Administrative Agent after any such set-off and application made

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by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.
SECTION 11.10.    Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the applicable Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
SECTION 11.11.    Counterparts.
This Agreement 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, and this has the same effect as if the signature on the counterparts were on a single copy of this agreement.
SECTION 11.12.    Integration; Effectiveness.
This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter, including the commitments of the Lenders and, if applicable, their Affiliates under any commitment letter or any commitment advice entered into or provided in connection with the credit facility established hereunder (but do not supersede any other provisions of any such commitment letter or any fee letter entered into in connection with the credit facility established hereunder that do not by the terms of such documents terminate upon the effectiveness of this Agreement, all of which provisions shall remain in full force and effect). In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof. Except as provided in Section 5.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

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SECTION 11.13.    Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by or on behalf of the Administrative Agent, any Lender or any of their respective Affiliates and notwithstanding that the Administrative Agent, any Lender or any of their respective Affiliates may have had notice or knowledge of any Default at the time of any Loan, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim or demand has been made).
SECTION 11.14.    Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.14, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.
SECTION 11.15.    Tax Forms.
(a)    (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Administrative Agent and the applicable Borrower, at the time or times reasonably requested by the Administrative Agent or the applicable Borrower, and at the time or times required by applicable Law, such properly completed and executed documentation reasonably requested by the Administrative Agent or the applicable Borrower, or required by applicable Law, as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Administrative Agent or the applicable Borrower, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Administrative Agent or the applicable Borrower, as will enable the Administrative Agent or the applicable Borrower to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 11.15(a)(ii) and 11.15(a)(iii)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Notwithstanding the foregoing, in the case of an applicable Borrower or

103


any other applicable Loan Party that, in each case, is not a U.S. Person, the applicable Lender will not be required to provide documentation pursuant to the requirements of this Section 11.15(a)(i) unless it has received written notice from such Borrower or such other Loan Party advising it of the applicable documentation required to be completed by such Lender and such Lender is legally able to provide such documentation to such Borrower or such other Loan Party.
(i)    Without limiting the generality of the foregoing, a Lender shall deliver to the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Administrative Agent), executed copies of IRS Form W-9 or W-8 certifying that such Lender is exempt from U.S. Federal backup withholding tax.
(ii)    If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph, “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(b)    If any Lender fails to deliver such forms, then the Administrative Agent or the applicable Loan Party shall withhold amounts required to be withheld by applicable Laws from payments under any Loan Document at the applicable statutory rate, without reduction. No Loan Party shall have any liability under Section 3.01 or otherwise with respect to amounts withheld by the Administrative Agent pursuant to this Section 11.15(b).
SECTION 11.16.    Replacement of Lenders.
If (i) any Lender is a Non-Extending Lender, (ii) any Lender requests compensation under Section 3.04, (iii) the Company or any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (iv) if any Lender is a Defaulting Lender, (v) any Lender (a “Non-Consenting Lender”) does not consent to a proposed amendment, waiver or consent with respect to any Loan Document that has been approved by the Required Lenders as provided in Section 11.01 but requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable) or (vi) under any other circumstances set forth herein providing that the Company shall have the right to replace a Lender as a party to this Agreement, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by,

104


Section 11.07), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(a)    the Company shall have paid (or caused the applicable Borrower to pay) to the Administrative Agent the assignment fee specified in Section 11.07(b);
(b)    such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or the applicable Borrower (in the case of all other amounts);
(c)    in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d)    such assignment does not conflict with applicable Laws; and
(e)    in the case of any such assignment resulting from a Non-Consenting Lender’s failure to consent to a proposed amendment, waiver or consent with respect to any Loan Document, the applicable assignee consents to the proposed amendment, waiver or consent;
provided, further, so long as Sections 11.16(a) through 11.16(e) have been satisfied, the failure by such Lender to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of such Lender and the mandatory assignment of such Lender’s Commitments and outstanding Loans pursuant to this Section 11.16 shall nevertheless be effective without the execution by such Lender of an Assignment and Assumption.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
SECTION 11.17.    USA PATRIOT Act Notice.
Each Lender that is subject to the PATRIOT Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Company and the Borrowers that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies the Company and the Borrowers, which information includes the name and address of the Company and each Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Company and such Borrower in accordance with the PATRIOT Act. The Company and the Borrowers shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under

105


applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
SECTION 11.18.    Governing Law; Jurisdiction; Etc.
(a)    GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (OTHER THAN THOSE CONFLICT OF LAW RULES THAT WOULD DEFER TO THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION).
(b)    SUBMISSION TO JURISDICTION. THE COMPANY AND EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY RELATED PARTY OF THE FOREGOING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY, ANY BORROWER OR THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)    WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION, LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, LITIGATION OR PROCEEDING IN ANY SUCH COURT.

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(d)    SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
SECTION 11.19.    Waiver of Right to Trial by Jury.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.20.    Judgment Currency.
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Company and each Borrower in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from the Company or such Borrower, as applicable, in the Agreement Currency, the Company or such Borrower, as applicable, agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to the Company or such Borrower, as applicable, (or to any other Person who may be entitled thereto under applicable law).

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The obligations under this Section 11.20 of each Borrower shall be several, and not joint, with such obligations of any other Loan Party.
SECTION 11.21.    No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the Company and the Borrowers acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length commercial transactions between the Company, the Borrowers and their Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, (B) each of the Company and the Borrowers has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Company and the Borrowers is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Administrative Agent, the Arrangers and the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Company, the Borrowers or any of their Affiliates, or any other Person and (B) neither the Administrative Agent nor any Arranger nor any Lender has any obligation to the Company, the Borrowers or any of their Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, the Borrowers and their Affiliates, and neither the Administrative Agent nor any Arranger has any obligation to disclose any of such interests to the Company, the Borrowers or any of their Affiliates. Each of the Company and the Borrowers agrees that it will not assert any claim against the Administrative Agent, any Arranger, any Lender or any of their respective Affiliates based on an alleged breach of fiduciary duty by the Administrative Agent, any Arranger, any Lender or any of their respective Affiliates in connection with this Agreement and the transactions contemplated hereby.
SECTION 11.22.    Electronic Execution of Assignments and Certain Other Documents.
The words “delivery,” “execute,” “execution,” “signed,” “signature,” and words of like import in any Loan Document or any other document executed in connection herewith (including, without limitation, Assignment and Assumptions, amendments or other modifications, Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, 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 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

108


similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary neither the Administrative Agent nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent or such Lender pursuant to procedures approved by it; provided further, without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed counterpart.
SECTION 11.23.    Appointment of Company as Agent; Power of Attorney.
(a)    Each of the Borrowers hereby appoints the Company to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic platforms entered into in connection herewith and agrees that (i) the Company may execute such documents and provide such authorizations on behalf of such Borrower as the Company deems appropriate in its sole discretion and such Borrower shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (ii) any notice or communication delivered by the Administrative Agent or a Lender to the Company shall be deemed delivered to each Borrower and (iii) the Administrative Agent or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Company on behalf of any of the Borrowers.
(b)    Each attorney executing this Agreement for and on behalf of Albemarle Wodgina states that he or she has no notice of revocation or suspension of his or her power of attorney.
SECTION 11.24.    Appointment of Agent for Service of Process; Waiver of Immunity.
(a)    Each of the Borrowers hereby irrevocably designates, appoints and empowers, for the benefit of the parties hereto (other than the Loan Parties) and the Indemnitees, the Company as its designee, appointee and agent to receive, accept and acknowledge for and on behalf of it, and in respect of its property, service of any and all legal process, summons, notices and documents that may be served in any suit, action or proceeding brought in connection with or as a result of this Agreement, the other Loan Documents, the Loans made to such Borrower hereunder and the other transactions contemplated hereby. Such service may be made by mailing or delivering a copy of such process to any Borrower in care of the Company at its address set forth in Section 11.02, and each Borrower hereby irrevocably authorizes and directs the Company to accept such service on its behalf. The Company hereby acknowledges and accepts its designation, appointment and empowerment by each of the Borrowers as its designee, appointee and agent to receive, accept and acknowledge for and on their behalf of, and in respect of its property, service of any and all legal process, summons, notices and documents that may be served in any suit, action or proceeding brought in connection with or as a result of this Agreement, the other Loan Documents, the Loans made to any Borrower hereunder and the other transactions contemplated hereby.

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(b)    In the event any Borrower or any of its property shall have or hereafter acquire, in any jurisdiction in which any action, proceeding or investigation may at any time be brought in connection with or as a result of this Agreement, the other Loan Documents, the Loans made to any Borrower hereunder and the other transactions contemplated hereby, any immunity from jurisdiction, legal proceedings, attachment (whether before or after judgment), execution, judgment or setoff, each of the Borrowers hereby agrees not to claim, and hereby irrevocably and unconditionally waives, such immunity.
SECTION 11.25.    Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Solely to the extent any Lender that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b)    the effects of any Bail-In Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.


110


ALBEMARLE CORPORATION
 
By:
/s/ Amy M. Dunbar
 
Name: Amy M. Dunbar
 
Title: Vice President and Treasurer

Signed by the attorney for and on behalf of ALBEMARLE WODGINA PTY LTD under power of attorney dated June 14, 2019

in the presence of


               /s/ Brenda Mareski
Signature of witness
                /s/ Karen G. Narwold
Signature of attorney


Name of witness (print): Brenda Mareski


Name of attorney (print): Karen G. Narwold


ALBEMARLE FINANCE COMPANY B.V.
 
By:
/s/ Dru Joseph Manuel
 
Name: Dru Joseph Manuel
 
Title: Managing Director


ALBEMARLE NEW HOLDING GMBH
   
By:
/s/ Dr. Nicolas Rößler
 
Name: Dr. Nicolas Rößler
 
Title: Managing Director


        



JPMORGAN CHASE BANK, N.A., 
as Administrative Agent,
 
By:    /s/ John Kushnerick     
 
Name: John Kushnerick
 
Title: Executive Director


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
BANK OF AMERICA, N.A.,
By:
/s/ Brandon Weiss
 
Name:
Brandon Weiss
 
Title:
Vice President


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
WELLS FARGO BANK, NATIONAL ASSOCIATION:
By:
/s/ Nathan R. Rantala
 
Name:
Nathan R. Rantala
 
Title:
Managing Director


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
MUFG BANK, LTD.
F/K/A THE BANK OF TOKYO MITSUBISHI UFJ, LTD.
By:
/s/ Victor Pierzchalski
 
Name:
Victor Pierzchalski
 
Title:
Authorized Signatory


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
MIZUHO BANK, LTD.,
By:
/s/ Tracy Rahn
 
Name:
Tracy Rahn
 
Title:
Authorized Signatory


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
HSBC BANK USA, NATIONAL ASSOCIATION
By:
/s/ Peggy Yip
 
Name:
Peggy Yip
 
Title:
Vice President


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
SUMITOMO MITSUI BANKING CORPORATION
By:
/s/ Michael Maguire
 
Name:
Michael Maguire
 
Title:
Executive Director


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
U.S. BANK NATIONAL ASSOCIATION
By:
/s/ Mark Irey
 
Name:
Mark Irey
 
Title:
Vice President


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
THE NORTHERN TRUST COMPANY
By:
/s/ Andrew D. Holtz
 
Name:
Andrew D. Holtz
 
Title:
Senior Vice President


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
SANTANDER BANK, N.A.
By:
/s/ Xavier Ruiz Sena
 
Name:
Xavier Ruiz Sena
 
Title:
Managing Director


        


SIGNATURE PAGE TO
THE SYNDICATED FACILITY AGREEMENT
OF ALBEMARLE CORPORATION
SUN TRUST BANK
By:
/s/ Julie Lindberg
 
Name:
Julie Lindberg
 
Title:
Vice President


        


SCHEDULE 2.01
Commitments



Lender
Commitment
JPMorgan Chase Bank, N.A.
$180,000,000.00
Bank of America, N.A.
$180,000,000.00
Wells Fargo Bank, National Association
$110,000,000.00
MUFG Bank, Ltd. f/k/a The Bank of Tokyo-Mitsubishi UFJ, Ltd
$110,000,000.00
Mizuho Bank, Ltd.
$110,000,000.00
HSBC Bank USA, National Association
$110,000,000.00
Sumitomo Mitsui Banking Corporation
$110,000,000.00
U.S. Bank National Association
$110,000,000.00
The Northern Trust Company
$60,000,000.00
Santander Bank, N.A.
$60,000,000.00
SunTrust Bank
$60,000,000.00
Total
$1,200,000,000.00











    
    

        




SCHEDULE 6.09
Environmental Matters


None.







SCHEDULE 6.17
Subsidiaries

 
Entity Name
% Ownership
Immaterial Subsidiary
Jurisdiction
•
ACI Cyprus, L.L.C.
100%
YES
Delaware
2.    
Albemarle Argentina SRL
100%
NO
Argentina
3.    
Albemarle Brazil Holdings LTDA
99%
NO
Brazil
4.    
Albemarle Care Fund
100%
YES
United States
5.    
Albemarle Catalysts Company B.V.
100%
NO
Netherlands
6.    
Albemarle Chemical Canada Ltd.
100%
YES
Canada
7.    
Albemarle Chemicals (Shanghai) Co., Ltd. (CN84)
100%
NO
China
8.    
Albemarle Chemicals Ltd.
100%
NO
Cyprus
9.    
Albemarle Chemicals Private Limited
100%
YES
India
10.    
Albemarle Chemicals S.A.S
100%
YES
France
11.    
Albemarle Chemicals South Africa Proprietary Limited
100%
YES
South Africa
12.    
Albemarle de Venezuela CA
100%
YES
Venezuela
13.    
Albemarle Delaware Holdings 1 LLC
100%
NO
United States
14.    
Albemarle Delaware Holdings 2 LLC
100%
YES
United States
15.    
Albemarle Dutch Holdings B.V.
100%
YES
Netherlands
16.    
Albemarle Dutch Holdings 2 B.V.
100%
YES
Netherlands
17.    
Albemarle Europe SRL
100%
NO
Belgium
18.    
Albemarle Finance Company B.V.
100%
NO
Netherlands
19.    
Albemarle Foundation
100%
YES
United States
20.    
Albemarle Germany GmbH
100%
NO
Germany
21.    
Albemarle Hilfe GmbH Unterstutzungskasse
100%
YES
Germany
22.    
Albemarle Holdings Company Limited
100%
NO
Luxembourg
23.    
Albemarle Holdings Limited
100%
NO
Hong Kong
24.    
Albemarle Hungary Limited
100%
YES
Hungary
25.    
Albemarle Italy Srl
100%
YES
Italy
26.    
Albemarle Japan Corporation
100%
NO
Japan
27.    
Albemarle Japan Holdings B.V.
100%
NO
Netherlands




 
Entity Name
% Ownership
Immaterial Subsidiary
Jurisdiction
28.    
Albemarle Knight Lux 1 Holdings Corporation
100%
NO
United States
29.    
Albemarle Korea Corporation
100%
NO
South Korea
30.    
Albemarle Limitada
100%
NO
Chile
31.    
Albemarle Lithium Holding Corporation (formerly known as Chemetall Corporation)
100%
NO
Delaware
32.    
Albemarle Lithium Holding GmbH
100%
NO
Germany
33.    
Albemarle Lithium Pty Ltd
100%
NO
Australia
34.    
Albemarle Management (Shanghai) Co., Ltd.
100%
NO
China
35.    
Albemarle Middle East FZE
100%
YES
United Arab Emirates
36.    
Albemarle Netherlands B.V.
100%
NO
Netherlands
37.    
Albemarle New Holding GmbH
100%
NO
Germany
38.    
Albemarle Overseas Employment Corporation
100%
YES
United States
39.    
Albemarle Quimica LTDA
100%
NO
Brazil
40.    
Albemarle Saudi Trading Co. LLC
75%
YES
Saudi Arabia
41.    
Albemarle Singapore Pte Ltd.
100%
NO
Singapore
42.    
Albemarle Spain S.L.
100%
YES
Spain
43.    
Albemarle Taiwan Ltd.
100%
NO
Taiwan
44.    
Albemarle U.S., Inc.
100%
NO
United States
45.    
Albemarle Wodgina Pty Ltd
100%
NO
Australia
46.    
DNVJ Vermogensverwaltung GmbH
93.953%
YES
Germany
47.    
Dynamit Nobel GmbH
94%
NO
Germany
48.    
Dynamit Nobel Unterstutzungsfonds GmbH
100%
YES
Germany
49.    
Excalibur II Realty Company
100%
YES
United States
50.    
Excalibur Realty Company
100%
YES
United States
51.    
Foote Chile Holding Company
100%
NO
United States
52.    
Foote Minera e Inversiones Limitada
100%
NO
Chile
53.    
Jiangxi Albemarle Lithium Co., Ltd
100%
NO
China
54.    
Knight Lux 1 S.a.r.l
100%
NO
Luxembourg
55.    
Knight Lux 2 S.a.r.l.
100%
NO
Luxembourg
56.    
Metalon Environmental Management & Solutions GmbH
100%
YES
Germany
57.    
Rockwood Holdings, Inc.
100%
NO
United States




 
Entity Name
% Ownership
Immaterial Subsidiary
Jurisdiction
58.    
Rockwood Lithium (Shanghai) Co., Ltd.
100%
NO
China
59.    
Rockwood Lithium India Private Limited
100%
YES
India
60.    
Rockwood Lithium Japan K.K.
100%
NO
Japan
61.    
Rockwood Lithium Korea LLC
100%
YES
Korea
62.    
Rockwood Lithium Taiwan Co., Ltd.
100%
NO
Taiwan
63.    
Rockwood Specialties GmbH
100%
NO
Germany
64.    
Rockwood Specialties Group, Inc.
100%
NO
United States
65.    
Rockwood Specialties Limited
100%
YES
United Kingdom
66.    
Rockwood Specialties LLC
100%
NO
United States
67.    
RSG Immobilien GmbH
100%
YES
Germany
68.    
RT Lithium Limited
100%
NO
United Kingdom
69.    
Sales de Magnesio Limitada
100%
NO
Chile
70.    
Sichuan Guorun New Material Co., Ltd.
100%
NO
China
71.    
Albemarle Saudi Trading Company
75%
YES
Saudi Arabia
72.    
Eurecat U.S.
57.5%
N/A
United States
73.    
Jordan Bromine Company Ltd.
50%
NO
Jordan
74.    
Shandong Sinobrom Albemarle Bromine Chemicals Company, Ltd.
100%
YES
China





SCHEDULE 6.20(b)
Certain Anti-Corruption Laws Matters

As previously reported in its filings with the SEC, the Company received information regarding potential improper payments being made by third party sales representatives of the Company’s Refining Solutions business, within its Catalysts segment.







SCHEDULE 8.01
Existing Liens

Liens described by the following UCC financing statements:

LOUISIANA SECRETARY OF STATE:

Debtor:                Albemarle Corporation
Secured Party:                Key Equipment Finance Inc.
File Number:                09-1144334
File Date:                11/18/2010
Continuation Date:            08/26/2015
Collateral:
Goods from Leases, Loans, Sale Agreements and other such agreements, between Debtor and Secured Party, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:                Key Equipment Finance Inc.
File Number:                09-1182130
File Date:                06/08/2012
Continuation Date:            03/15/2017
Collateral:
Goods and Property described in the above referenced UCC financing statement, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s); 5-2012 Club Car Carryall 232 Electric


Debtor:                Albemarle Corporation
Secured Party:                Dell Financial Services L.L.C.
File Number:                09-1253766
File Date:                12/04/2014
Collateral:
Use of the software, services and other equipment financed under an Installment Payment Agreement between Debtor and Secured Party, credits or refunds with respect thereto, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:                Dell Financial Services L.L.C.
File Number:                09-1258103




File Date:                02/02/2015
Collateral:
Use of the software, services and other equipment financed under an Installment Payment Agreement between Debtor and Secured Party, credits or refunds with respect thereto, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

VIRGINIA STATE CORPORATION COMMISSION:

Debtor:                Albemarle Corporation
Secured Party:                Air Liquide Industrial U.S. LP
File Number:                 09-03-19-7138-1
File Date:                03/19/2009
Continuation Date:            02/10/2014
Collateral:
1,500 Gallon Nitrogen Vessel SN #1358
525 Gallon Argon Vessel SN #587

Debtor:                Albemarle Corporation
Secured Party:                Vallen Distribution, Inc.
File Number:                09-06-17-7194-1
File Date:                06/17/2009
Continuation Date:            02/27/2014
Amendment Date:
01/16/2017
Continuation Date
05/20/2019
Collateral:
All parts, items and products held by the Debtor on consignment from the Secured Party, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)


Debtor:                Albemarle Corporation
Secured Party:                Key Equipment Finance Inc.
File Number:                10-11-19-3885-0
File Date:                11/19/2010
Continuation Date:            08/25/2015
Collateral:
All Goods from present and future leases, loans, conditional sale agreements and other such agreements, between Debtor and Secured Party, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:                Caterpillar Financial Services Corporation




File Number:                11-06-07-3962-0
File Date:                06/07/2011
Continuation Date:
12/16/2015
Collateral:
1 Caterpillar 42OE4T Backhoe Loader SN #DJL00569, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:                Key Equipment Finance Inc.
File Number:                11-09-07-3971-5
File Date:                09/07/2011
Continuation Date:
06/06/2016
Collateral:
Goods and Property described in such financing statement, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:                Key Equipment Finance Inc.
File Number:                11-10-07-3893-2
File Date:                10/07/2011
Continuation Date:
07/08/2016
Collateral:
12 Carryall 2 gas low speed utility vehicles; 1 Carryall 252 gas low speed utility vehicle, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:
U.S. Bank Equipment Finance, a division of U.S. Bank National Association
File Number:                13-09-23-3910-5
File Date:                09/23/2013
Collateral:
1 S30 Sweeper together with parts, repairs, additions, accessions and accessories, and certain other collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:
EverBank Commercial Finance, Inc.
File Number:                14-05-05-3808-4




File Date:                05/05/2014
Collateral:
All personal property subject to a Lease Agreement dated May 1, 2014, between Debtor and Secured Party, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s); 1 Club call carryall 100 (electric)

Debtor:                Albemarle Corporation
Secured Party:
EverBank Commercial Finance, Inc.
File Number:                14-12-22-3891-0
File Date:                12/22/2014
Collateral:
All personal property subject to a Lease Agreement dated November 4, 2014, between Debtor and Secured Party, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s); 1 Club car carryall 100 (electric)

Debtor:                Albemarle Corporation
Secured Party:
Wells Fargo Bank, N.A.
File Number:                15-07-29-3832-1
File Date:                07/29/2015
Collateral:
1 Used 2013 Rail King RK320 Rail Car Mover S/N RCM-988-5 and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:
Toyota Industries Commercial Finance, Inc., Hugg and Hall Equipment Company
File Number:                15-12-18-3841-8
File Date:                12/18/2015
Collateral:
1 used Crown Model #RR5225-45, Serial #1A306680; 1 used Crown Model #RD5725-30, Serial #1A391526





Debtor:                Albemarle Corporation
Secured Party:
De Lage Landen Financial Services, Inc.
File Number:                16-07-11-4006-6
File Date:                07/11/2016
Collateral:
1 Used Waters Xevo G2-XS Acquity System and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:
Caterpillar Financial Services Corporation
File Number:                16-12-14-3897-9
File Date:                12/14/2016
Collateral:
1 Caterpillar 420F2ST Backhoe Loader S/N: HWC01120, 1.4 cubic yard GP Bucket, 24” HD Bucket, Thumb, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:
Konica Minolta Premier Finance
File Number:                17-05-18-3882-3
File Date:                05/18/2017
Collateral:
3 – Bizhub C3350, 19 – Bizhub C458, and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:
De Lage Landen Financial Services, Inc.
File Number:                17-06-08-3830-5
File Date:                06/08/2017
Collateral:
12 Caterpillar GP25N5-GLE forklifts with battery and charger as more particularly described in the financing statement and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)





Debtor:                Albemarle Corporation
Secured Party:
DLL Finance LLC
File Number:                17-07-05-3874-3
File Date:                07/05/2017
Collateral:
Club car, CA100E, Elec Utility (QTY 33)

Debtor:
Albemarle Corporation
Secured Party:
De Lage Landen Financial Services, Inc.
File Number:
1707053907
File Date:
07/05/2017
Collateral:
All equipment leased or financed by Secured Party to or for Debtor pursuant to Secured Party’s contract number 100-10145826 and certain collateral related thereto as specified in such financing statement and the applicable underlying agreement(s)

Debtor:                Albemarle Corporation
Secured Party:
Konica Minolta Premier Finance
File Number:                18-07-12-3932-4
File Date:                07/12/2018
Collateral:
8 BIZHUB C258, 6 BIZHUB C368 and all currently existing and future attachments, parts, accessories and add-ons for all of the foregoing equipment, and all products and proceeds thereof

Debtor:                Albemarle Corporation
Secured Party:
Konica Minolta Premier Finance
File Number:                18-07-31-3903-3
File Date:                07/31/2018
Collateral:
1-BIZHUB C368, 15-BIZHUB C258, RIGHTFAX Software and all currently existing and future attachments, parts, accessories and add-ons for all of the foregoing equipment, and all products and proceeds thereof

Debtor:                Albemarle Corporation
Secured Party:
Konica Minolta Premier Finance
File Number:                19-04-25-3932-7
File Date:                04/25/2019
Collateral:
4 BIZHUB C659 and all currently existing and future attachments, parts, accessories and add-ons for all of the foregoing equipment, and all products and proceeds thereof






SCHEDULE 11.02
Eurocurrency and Domestic Lending Offices; Notice Addresses


Loan Parties

ALBEMARLE CORPORATION
4250 Congress Street, Ste. 900
Charlotte, North Carolina 28209
Attention: Chief Financial Officer
Telephone: 980-299-5700
Email: scott.tozier@albemarle.com

With copy to:

ALBEMARLE CORPORATION
4250 Congress Street, Ste. 900
Charlotte, North Carolina 28209
Attention: General Counsel
Telephone: 980-299-5700
Email: karen.narwold@albemarle.com

With copy to:

ALBEMARLE CORPORATION
4250 Congress Street, Ste. 900
Charlotte, North Carolina 28209
Attention: Treasurer
Telephone: 980-299-5700
Email: amy.dunbar@albemarle.com

Administrative Agent

JPMORGAN CHASE BANK, N.A.
Mail Code IL1-0010, L2 Floor
JPM Loan & Agency Services
10 S. Dearborn Street
Chicago, IL 60603
Attention: Jane Dreisbach
Facsimile: (201) 639-5215
E-mail: jane.dreisbach@Jpmorgan.com
           12016395215@tls.ldsprod.com








EXHIBIT A
FORM OF LOAN NOTICE
___________, 20__
To:    JPMorgan Chase Bank, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to the Syndicated Facility Agreement dated as of [●], 2019 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Albemarle Corporation, a Virginia corporation (the “Company”), Albemarle Wodgina Pty Ltd, a proprietary limited company incorporated under the laws of Australia, Albemarle Finance Company B.V., a besloten vennootschap organized under the laws of the Netherlands, Albemarle New Holding GmbH, a Gesellschaft mit beschränkter Haftung incorporated under the laws of the Federal Republic of Germany, the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.
The undersigned hereby requests (select one):
•
¨ A borrowing of Loans
1.
The applicable Borrower is [Albemarle Wodgina][Albemarle Finance][Albemarle Germany].
2.
The date of the Borrowing is ________.
3.
[The date that is reasonably anticipated by the Company to be the Acquisition Agreement Closing Date is ______, 20____.]
4.
The aggregate principal amount of the requested Loans is [US$][€]__________.
5.
The initial Type of requested Loans is [Base Rate Loans][LIBOR Loans][EURIBOR Loans].
6.
The initial Interest Period is ______ [month[s]].
7.
The Borrowing is to be credited to the applicable Borrower indicated above at [               ], ABA #[               ], Account #[               ], Attention:[               ].




•
¨ A conversion or continuation of a Borrowing
1.
Borrowing to which this request applies:    
Principal Amount: [ ]
Type: [ ]
Interest Period: [ ]
2.
Effective date of this election: [ ]
3.
Resulting Borrowing[s]:
Principal Amount: [ ]
Type: [ ]
Interest Period: [ ]

[NAME OF APPLICABLE BORROWER] [ALBEMARLE CORPORATION, on behalf of the applicable Borrower indicated above],
by
 
 
 
Name:
 
Title:







EXHIBIT B
FORM OF NOTE
______________, 20__
FOR VALUE RECEIVED, [Albemarle Wodgina Pty Ltd, a proprietary limited company incorporated under the laws of Australia] [Albemarle Finance Company B.V., a besloten vennootschap organized under the laws of the Netherlands] [Albemarle New Holding GmbH, a Gesellschaft mit beschränkter Haftung incorporated under the laws of the Federal Republic of Germany] (the “Borrower”), hereby promises to pay to _____________________ (the “Lender”) or its registered assigns, in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Loan made by the Lender to the Borrower under that certain Syndicated Facility Agreement, dated as of [●], 2019 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Albemarle Corporation, the Borrower, [Albemarle Wodgina Pty Ltd] [Albemarle Finance Company B.V.][Albemarle New Holding GmbH], the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each Loan made by the Lender to the Borrower from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars, in the case of Loans denominated in Dollars, or Euro, in the case of Loans denominated in Euro, as applicable, and in immediately available funds to the account specified by the Administrative Agent. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) at the Default Rate set forth in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, Type, amount, currency and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.




THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[NAME OF APPLICABLE BORROWER],
by
 
 
 
Name:
 
Title:







EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
The form of this Compliance Certificate has been prepared for convenience only, and is not to affect, or to be taken into consideration in interpreting, the terms of the Credit Agreement referred to below. The obligations of the Company and the Borrowers under the Credit Agreement are as set forth in the Credit Agreement, and nothing in this Compliance Certificate, or the form hereof, shall modify such obligations or constitute a waiver of compliance therewith in accordance with the terms of the Credit Agreement. In the event of any conflict between the terms of this Compliance Certificate and the terms of the Credit Agreement, the terms of the Credit Agreement shall govern and control, and the terms of this Compliance Certificate are to be modified accordingly.
Financial Statements Date: ___________, 20__
To:    JPMorgan Chase Bank, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to the Syndicated Facility Agreement dated as of [●], 2019 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Albemarle Corporation, a Virginia corporation (the “Company”), Albemarle Wodgina Pty Ltd, a proprietary limited company incorporated under the laws of Australia, Albemarle Finance Company B.V., a besloten vennootschap organized under the laws of the Netherlands, Albemarle New Holding GmbH, a Gesellschaft mit beschränkter Haftung incorporated under the laws of the Federal Republic of Germany, the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.
The undersigned hereby certifies as of the date hereof that [he/she] is the [ ] of the Company, and that, in [his/her] capacity as such, [he/she] is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and that:
[Use following paragraph 1 for fiscal year-end financial statements:]
[1. The audited consolidated financial statements required by Section 7.01(a) of the Credit Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent registered public accounting firm required by such Section, have been filed with the SEC and are available on the website of the SEC at http://www.sec.gov.] [or] [Attached hereto as Schedule 1 are the audited consolidated financial statements required by Section 7.01(a) of the Credit Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent registered public accounting firm required by such Section.]
[Use following paragraph 1 for fiscal quarter-end financial statements:]




[1. The unaudited consolidated financial statements required by Section 7.01(b) of the Credit Agreement for the fiscal quarter, and the portion of the fiscal year, of the Company ended as of the above date have been filed with the SEC and are available on the website of the SEC at http://www.sec.gov.] [or] [Attached hereto as Schedule 1 are the unaudited consolidated financial statements required by Section 7.01(b) of the Credit Agreement for the fiscal quarter, and the portion of the fiscal year, of the Company ended as of the above date.] Such financial statements fairly present in all material respects the financial position, results of operations and cash flows of the Consolidated Group in accordance with GAAP as of the date and for the period covered thereby, subject only to normal year-end audit adjustments and the absence of footnotes.]
2. [To the best knowledge of the undersigned, no Default or Event of Default exists as of the date hereof.]
[or]
[The following is a list of each existing Default or Event of Default, the nature and extent thereof and the proposed actions of the Company and the Borrowers with respect thereto:]
3. The Financial Covenant analyses and information set forth on Schedule [1][2] attached hereto (i) are true and accurate on and as of the date hereof and (ii) demonstrate compliance with Section 8.06 of the Credit Agreement.
4. Set forth below is a summary of all material changes in GAAP affecting the consolidated financial statements of the Company and in the consistent application thereof by the Company occurring during the fiscal quarter of the Company ended as of the above date, the effect on the Financial Covenant resulting therefrom and a reconciliation between calculation of the Financial Covenant before and after giving effect to such changes:
[ ]
[signature page follows]






IN WITNESS WHEREOF, the undersigned has executed this Certificate as of __________ ___, ______.
ALBEMARLE CORPORATION
by
 
 
 
Name:
 
Title:






[Schedule 1
to Compliance Certificate]
Financial statements for the fiscal [year][quarter] of the Company ended as of __________, 20__
[see attached]






Schedule [1][2]
to Compliance Certificate
Computations of Financial Covenant
Financial Statements Date: ___________, 20__
1.    
Consolidated Leverage Ratio
 
 
(a)    Consolidated Funded Debt as of such date (without duplication) [(a)(i) + (a)(ii) + (a)(iii) + (a)(iv) + (a)(v) + (a)(vi) + (a)(vii) + (a)(viii)]
$[___,___,___]
 
(i)    all obligations for borrowed money, whether current or long-term (including the Loans), and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, including convertible debt instruments
$[___,___,___]
 
(ii)    all purchase money indebtedness (including indebtedness and obligations in respect of conditional sales and title retention arrangements, except for customary conditional sales and title retention arrangements with suppliers that are entered into in the ordinary course of business) and all indebtedness and obligations in respect of the deferred purchase price of property or services (other than trade accounts payable incurred in the ordinary course of business and payable on customary trade terms)
$[___,___,___]
 
(iii)    all contingent obligations and unreimbursed drawings under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments
$[___,___,___]
 
(iv)    the Attributable Principal Amount of capital leases and Synthetic Leases
$[___,___,___]
 
(v)    the Attributable Principal Amount of Securitization Transactions
$[___,___,___]
 
(vi)    all preferred stock and comparable equity interests providing or mandatory redemption, sinking fund or other like payments prior to 91 days after the latest Maturity Date currently in effect
$[___,___,___]
 
(vii)    Guarantees in respect of Funded Debt of another Person
$[___,___,___]
 
(viii)    any Funded Debt described in clauses (i) through (vii) above of any partnership or joint venture or other similar entity in which any member of the Consolidated Group is a general partner or joint venturer, and, as such, has personal liability for such obligations, but only to the extent there is recourse to such Person for payment thereof
$[___,___,___]
 
(b)    Consolidated Net Income for the period of the four fiscal quarters ending on such date [(b)(i) [-/+] (b)(ii) – (b)(iii)]
$[___,___,___]




 
(i)    net income of the Consolidated Group for such period
$[___,___,___]
 
(ii)    items reported as nonrecurring or unusual in the consolidated financial statements of the Company and the Consolidated Group and related tax effects
$[___,___,___]
 
(iii)    to the extent included in the amount determined pursuant to clauses (i) and (ii) above, the income of any Subsidiary to the extent the payment of such income in the form of a distribution or repayment of any Indebtedness to the Company or a Subsidiary is not permitted, whether on account of any Organization Document restriction, any Contractual Obligation or any Law applicable to such Subsidiary
$[___,___,___]

 
(c)    Consolidated EBITDA for the period of the four fiscal quarters ending on such date [(c)(i) + (c)(ii) + (c)(iii) + (c)(iv) + (c)(v) + (c)(vi) + (c)(vii) + (c)(viii) + (c)(ix) + (c)(x) + (c)(xi) - (c)(xii) - (c)(xiii)]
$[___,___,___]
 
(i)    Consolidated Net Income for such period
$[___,___,___]
 
(ii)    Consolidated Interest Charges for such period
$[___,___,___]
 
(iii)    the provision for federal, state, local and foreign income taxes payable by the Consolidated Group for such period
$[___,___,___]
 
(iv)    the amount of depreciation and amortization expense for such period
$[___,___,___]
 
(v)    non-cash expenses for such period (excluding any non-cash expense to the extent that it represents an accrual of or reserve for cash payments in any future period)
$[___,___,___]
 
(vi)    non-cash goodwill impairment charges for such period
$[___,___,___]
 
(vii)    any non-cash loss for such period attributable to the mark-to-market adjustments in the valuation of pension liabilities (to the extent the cash impact resulting from such loss has not been realized) in accordance with FASB ASC 715
$[___,___,___]
 
(viii)    any fees, expenses or charges for such period (other than depreciation or amortization expense) related to any Acquisition, Disposition, issuance of equity interests, other transactions (excluding intercompany transactions) permitted by Section 8.02 of the Credit Agreement, or the incurrence of Indebtedness not prohibited by the Credit Agreement (including any refinancing or amendment thereof) (in each case, whether or not consummated), including, but not limited to, such fees, expenses or charges related to the Credit Agreement and the other Loan Documents and any amendment or other modification of the Credit Agreement or the other Loan Documents
$[___,___,___]
 
(ix)    any expense for such period to the extent that a corresponding amount is received during such period in cash by the Company or any of its Subsidiaries under any agreement providing for indemnification or reimbursement of such expenses
$[___,___,___]




 
(x)    any expense with respect to liability or casualty events or business interruption to the extent reimbursed to the Company or any of its Subsidiaries during such period by third party insurance
$[___,___,___]
 
(xi)    the amount of dividends, distributions or other payments (including any ordinary course dividend, distribution or other payment) that are actually received in cash (or converted into cash) for such period by a member of the Consolidated Group from any Person that is not a member of the Consolidated Group or otherwise in respect of any unconsolidated investment
$[___,___,___]
 
(xii)    non-cash income for such period (excluding any non-cash income to the extent that it represents cash receipts in any future period)
$[___,___,___]
 
(xiii)    any non-cash gains for such period attributable to the mark-to-market adjustments in the valuation of pension liabilities in accordance with FASB ASC 715
$[___,___,___]
 
(d)    Consolidated Leverage Ratio [(a)/(c)]
[ ]:1.00






EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Syndicated Facility Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and equal to the percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the credit facility identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1.    Assignor: ______________________________
[Assignor [is][is not] a Defaulting Lender.]
2.    Assignee: ______________________________
[and is [a Lender] [an Affiliate/Approved Fund of [identify Lender]]]
3.    Borrower(s): Albemarle Wodgina Pty Ltd, Albemarle Finance Company B.V. and Albemarle New Holding GmbH
4.    Administrative Agent: JPMorgan Chase Bank, N.A., as the Administrative Agent under the Credit Agreement




5.    Credit Agreement: Syndicated Facility Agreement, dated as of [●], 2019 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Albemarle Corporation, Albemarle Wodgina Pty Ltd, Albemarle Finance Company B.V., Albemarle New Holding GmbH, the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
6.    Assigned Interest:

Facility Assigned
Aggregate Amount of Commitments/Loans of all Lenders
Amount of Commitment/Loans Assigned
Percentage Assigned of Commitments/ Loans
CUSIP Number
Commitments
$[ ]
$[ ]
%
 
Loans denominated in Dollars and made to Albemarle Wodgina
$[ ]
$[ ]
%
 
Loans denominated in Dollars and made to Albemarle Finance
$[ ]
$[ ]
%
 
Loans denominated in Dollars and made to Albemarle Germany
$[ ]
$[ ]
%
 
Loans denominated in Euro and made to Albemarle Finance
€[ ]
€[ ]
%
 
Loans denominated in Euro and made to Albemarle Germany
€[ ]
€[ ]
%
 

[7. Trade Date: __________________]

Effective Date:
__________________, 20__





[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]





The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
by
 
 
 
Name:
 
Title:


ASSIGNEE
[NAME OF ASSIGNEE]
by
 
 
 
Name:
 
Title:


[Consented to and] Accepted:
JPMORGAN CHASE BANK, N.A., as Administrative Agent
by
 
 
 
Name:
 
Title:


[Consented to:]
ALBEMARLE CORPORATION
by
 
 
 
Name:
 
Title:







ANNEX 1 TO
ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
ARTICLE XII    Representations and Warranties.
SECTION 12.01.    Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, representations or warranties made in or in connection with the Credit Agreement or any other Loan Document, other than the representations and warranties made by it herein, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
SECTION 12.02.    Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an assignee under Sections 11.07(b)(iii) and 11.07(b)(v) of the Credit Agreement (subject to such consents, if any, as may be required under Section 11.07(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.01 of the Credit Agreement and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest and (vii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, the Assignor 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 the Loan




Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
ARTICLE XIII    Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
ARTICLE XIV    General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by fax or electronic transmission (in .pdf or .tif format) shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.



Exhibit 10.2

FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of August 14, 2019 (this “Amendment”), is entered into among ALBEMARLE CORPORATION, a Virginia corporation (the “Company”), ALBEMARLE EUROPE SRL, a limited liability company organized under the laws of Belgium (“société à responsabilité limitée”) (“Albemarle Europe”, and together with the Company and any other Subsidiary of the Company party hereto pursuant to Section 2.14, collectively, the “Borrowers”), the Lenders party hereto, and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Credit Agreement (as defined below and as amended by this Amendment).
RECITALS
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to that certain Credit Agreement, dated as of June 21, 2018 (the “Credit Agreement”);
WHEREAS, the Company has requested certain amendments to the Credit Agreement; and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1.    Amendments.
(a)    Section 1.01.
(i)    The following definition in Section 1.01 of the Credit Agreement is hereby amended to read as follows:
“Maturity Date” means the later of (a) August 14, 2024 and (b) if maturity is extended pursuant to Section 2.15, such extended maturity date as determined pursuant to such Section; provided, however that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
(ii)    The definition of “MLPFS” appearing in Section 1.01 of the Credit Agreement is hereby deleted, and every occurrence of “MLPFS” appearing in the Credit Agreement is hereby deleted and replaced with “BAS”.
(iii)    A new definition of “BAS” is hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order to read as follows:

1


“BAS” means BofA Securities, Inc., in its capacity as joint lead arranger and joint bookrunner, and its successors.
(iv)    A new definition of “Blocking Law” is hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order to read as follows:
“Blocking Law” means:
(a)    any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or regulation implementing such Regulation in any member state of the European Union or the United Kingdom); and
(b)    any similar blocking or anti-boycott law in the United Kingdom.
(b)    Section 6.20. Section 6.20(b) of the Credit Agreement is hereby amended to read as follows:
(b)    The Borrowers and their Subsidiaries are in compliance in all material respects with applicable anti-corruption Laws (it being understood and agreed that the foregoing representation and warranty shall not be deemed to be inaccurate on account of conduct described in Schedule 6.20 solely to the extent such conduct has occurred prior to the Closing Date (and, for the avoidance of doubt, is not continuing on the date on which such representation and warranty is made or deemed to be made hereunder)) and have instituted and maintain in effect policies and procedures reasonably designed to promote and achieve compliance with such Laws.
(c)    Section 8.01. Section 8.01(dd) of the Credit Agreement is hereby amended by replacing the phrase “25%” therein with the phrase “30%”.
(d)    Section 8.07.
(i) Section 8.07(f) of the Credit Agreement is hereby amended by removing the “and” after the “;”.
(ii) Section 8.07(g) of the Credit Agreement is hereby amended to read as follows:
(g)    other Indebtedness, provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the difference between (i) 30% of Consolidated Net Tangible Assets as appearing in the latest balance sheet delivered pursuant to Section 7.01 minus (ii) the aggregate outstanding principal amount of Indebtedness of the Company secured by Liens permitted by Section 8.01(dd); and
(iii) A new Section 8.07(h) is hereby added to the Credit Agreement to read as follows:

2


(h)    any guarantee given pursuant to section 8a of the German Act on Partial Retirement (Altersteilzeitgesetz) or section 7e of the Fourth Book of the German Social Code (Sozialgesetzbuch IV).
(e)    Section 8.08. The following new sentence is hereby added to the end of Section 8.08 of the Credit Agreement to read as follows:
Any provision of this Section 8.08 or Section 6.20 shall not apply to any Person if and to the extent that it would result in a breach, by or in respect of that Person, of any applicable Blocking Law.
(f)    Section 11.25. A new Section 11.25 is hereby added to the Credit Agreement to read as follows:
11.25    Acknowledgment Regarding any Supported QFCs.
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a)    In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.

3


Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b)    As used in this Section 11.25, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
(g)    Schedule 6.20. A new Schedule 6.20 (Certain Anti-Corruption Laws Matters) to the Credit Agreement, in the form attached hereto as Attachment A, is hereby inserted immediately after Schedule 6.17 (Subsidiaries) of the Credit Agreement, and a corresponding reference to “6.20 Certain Anti-Corruption Laws Matters” is hereby inserted immediately after “6.17 Subsidiaries” in the list of Schedules in the Table of Contents of the Credit Agreement.
(h)    Exhibit D. Exhibit D (Form of Compliance Certificate) is hereby deleted and replaced in its entirety with the form attached hereto as Attachment B.
2.    Effectiveness; Conditions Precedent. This Amendment shall be and become effective as of date hereof when all of the conditions set forth in this Section 2 shall have been satisfied.
(a)    Execution of Counterparts of Amendment. The Administrative Agent shall have received counterparts of this Amendment, which collectively shall have been duly executed on behalf of each of the Borrowers, the Administrative Agent and each Lender.

4


(b)    Resolutions, etc. The Administrative Agent shall have received (i) a certificate of the Company dated as of the date hereof signed by a Responsible Officer of the Company (A) certifying and attaching the resolutions adopted by the Company approving or consenting to this Amendment and (B) certifying that, before and after giving effect to this Amendment, (1) the representations and warranties contained in Article VI of the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this clause (B)(1), the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.01 of the Credit Agreement, and (2) no Default exists, and (ii) a decision of the director of Albemarle Europe dated as of the date hereof signed by the director of Albemarle Europe approving Albemarle Europe’s execution of this Amendment and granting power of attorney to Cédric Janssens to execute this Amendment.
(c)    Legal Opinions. The Administrative Agent shall have received opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent.
(d)    Lender/Arranger Fees. The Company shall have paid all agreed arrangement fees and extension fees to the Lenders and BofA Securities, Inc., as applicable.
3.    Expenses. The Borrowers agree to reimburse the Administrative Agent for all reasonable documented out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable documented fees and expenses of Moore & Van Allen PLLC.
4.    Ratification. Each Borrower acknowledges and consents to the terms set forth herein and agrees that this Amendment does not impair, reduce or limit any of its obligations under the Loan Documents, as amended hereby. This Amendment is a Loan Document.
5.    Authority/Enforceability. Each Borrower represents and warrants as follows:
(a)    It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.
(b)    This Amendment has been duly executed and delivered by such Borrower and constitutes its legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (i) applicable Debtor Relief Laws, (ii) fraudulent transfer or conveyance laws, and (iii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c)    No consent, approval, authorization or order of, or filing, registration or qualification with, any court or Governmental Authority or third party is required in

5


connection with the execution, delivery or performance by such Borrower of this Amendment, except for those the failure to obtain, occur or make would not reasonably be expected to have a Material Adverse Effect.
(d)    The execution and delivery of this Amendment does not (i) violate, contravene or conflict with any provision of its Organization Documents or (ii) violate, contravene or conflict with any Laws applicable to it, except in the case of clause (ii), to the extent that it would not reasonably be expected to have a Material Adverse Effect.
6.    Representations and Warranties of the Borrowers. Each Borrower represents and warrants to the Lenders that after giving effect to this Amendment (a) the representations and warranties set forth in Article VI of the Credit Agreement are true and correct in all material respects as of the date hereof unless they specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and (b) no Default exists.
7.    Counterparts/Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of executed counterparts of this Amendment by telecopy or other secure electronic format (.pdf) shall be effective as an original.
8.    GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9.    Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
10.    Headings. The headings of the sections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Amendment.
11.    Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
[remainder of page intentionally left blank]


6



Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.

BORROWERS:                ALBEMARLE CORPORATION,
a Virginia corporation
By:
/s/ Amy M. Dunbar        
Name:    Amy M. Dunbar
Title:    Vice President and Treasurer

ALBEMARLE EUROPE SRL,
a limited liability company organized under the laws of Belgium

By:
/s/ Isabelle Miesing        
Name:    Isabelle Miesing
Title:    Director



ALBEMARLE CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT


ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
/s/ Ronaldo Naval        
Name:    Ronaldo Naval
Title:    Vice President



ALBEMARLE CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT


LENDERS:        BANK OF AMERICA, N.A.,
        as a Lender, L/C Issuer and Swing Line Lender
By:
/s/ Brandon Weiss        
Name:    Brandon Weiss
Title:    Vice President
JPMORGAN CHASE BANK, N.A.,
as a Lender
By:
/s/ John Kushnerick        
Name:    John Kushnerick
Title:    Executive Director
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender
By:
/s/ Nathan R. Rantala        
Name:    Nathan R. Rantala
Title:    Managing Director
MUFG BANK, LTD.
F/K/A THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender
By:
/s/ Victor Pierzchalski        
Name:    Victor Pierzchalski
Title:    Authorized Signatory
MIZUHO BANK, LTD.,
as a Lender
By:
/s/ Tracy Rahn            
Name:    Tracy Rahn
Title:    Authorized Signatory



ALBEMARLE CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT


HSBC BANK USA, NATIONAL ASSOCIATION,
as a Lender
By:
/s/ Peggy Yip            
Name:    Peggy Yip
Title:    Vice President
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By:
/s/ Michael Maguire        
Name:    Michael Maguire
Title:    Executive Director
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:
/s/ Mark Irey            
Name:    Mark Irey
Title:    Vice President
THE NORTHERN TRUST COMPANY,
as a Lender
By:
/s/ Andrew D. Holtz        
Name:    Andrew D. Holtz
Title:    Senior Vice President
SANTANDER BANK, N.A.,
as a Lender
By:
/s/ Xavier Ruiz Sena        
Name:    Xavier Ruiz Sena
Title:    Managing Director
SUNTRUST BANK,
as a Lender


ALBEMARLE CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT


By:
/s/ Julie Lindberg        
Name:    Julie Lindberg
Title:    Vice President



ALBEMARLE CORPORATION
FIRST AMENDMENT TO CREDIT AGREEMENT


Attachment A

Schedule 6.20
Certain Anti-Corruption Laws Matters

As previously reported in its filings with the SEC, the Company received information regarding potential improper payments being made by third party sales representatives of the Company’s Refining Solutions business, within its Catalysts segment.



        



Attachment B

Exhibit D

FORM OF COMPLIANCE CERTIFICATE

Financial Statement Date: , 20__

To:    Bank of America, N.A., as Administrative Agent

Re:
Credit Agreement, dated as of June 21, 2018 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”) among Albemarle Corporation, a Virginia corporation (the “Company”), Albemarle Europe SRL, a limited liability company organized under the laws of Belgium (“société privée à responsabilité limitée”) (“Albemarle Europe”, and together with Company and any other Subsidiary of the Company party to the Credit Agreement pursuant to Section 2.14 thereof, collectively, the “Borrowers”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and Swing Line Lender. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.

Ladies and Gentlemen:

The undersigned Responsible Officer hereby certifies as of the date hereof that [he/she] is the                              of the Company, and that, in [his/her] capacity as such, [he/she] is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and that:

[Use following paragraph 1 for fiscal year-end financial statements:]

[1.    Attached hereto as Schedule 1 are the audited financial statements required by Section 7.01(a) of the Credit Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.]

[Use following paragraph 1 for fiscal quarter-end financial statements:]

[1.    Attached hereto as Schedule 1 are the unaudited financial statements required by Section 7.01(b) of the Credit Agreement for the fiscal quarter of the Company ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of the Consolidated Group in all material respects in accordance with GAAP as of the above date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.]

[select one:]

[2.    To the best knowledge of the undersigned during such fiscal period, no Default or Event of Default exists as of the date hereof.]

[or:]



        



[the following is a list of each existing Default or Event of Default, the nature and extent thereof, and the proposed actions of the Borrowers with respect thereto:]

3.    The financial covenant analyses and information set forth on Schedule 2 attached hereto (i) are true and accurate on and as of the date of this Certificate and (ii) demonstrate compliance with Section 8.06 of the Credit Agreement.

4.    Set forth below is a summary of all material changes in GAAP affecting the Company and in the consistent application thereof by the Company occurring during the most recent fiscal quarter ending prior to the date hereof, the effect on the financial covenants resulting therefrom, and a reconciliation between calculation of the financial covenants before and after giving effect to such changes:


[signature page follows]




        



IN WITNESS WHEREOF, the undersigned has executed this Certificate as of __________ ___, ______.

ALBEMARLE CORPORATION,
a Virginia corporation


By:                    
Name:
Title:




        



Schedule 1
to Compliance Certificate

Financial statements for the fiscal [year][quarter] of the Company ended as of __________, 20__

[see attached]





        



Schedule 2
to Compliance Certificate

Computation of Financial Covenants

1.    Consolidated Leverage Ratio

(a)    Consolidated Funded Debt as of such date:

(i)
all obligations for borrowed money, whether current or
long-term (including the Obligations under the Credit
Agreement), and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar
instruments, including convertible debt instruments        $        

(ii)    all purchase money indebtedness (including indebtedness
and obligations in respect of conditional sales and title
retention arrangements, except for customary conditional
sales and title retention arrangements with suppliers that
are entered into in the ordinary course of business) and all
indebtedness and obligations in respect of the deferred
purchase price of property or services (other than trade
accounts payable incurred in the ordinary course of business
and payable on customary trade terms)                $        

(iii)    all contingent obligations under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments                    $        

(iv)    the Attributable Principal Amount of capital leases and
Synthetic Leases                        $        

(v)    the Attributable Principal Amount of Securitization
Transactions                            $        

(vi)    all preferred stock and comparable equity interests providing
for mandatory redemption, sinking fund or other like payments
within 91 days following the Maturity Date currently in effect    $        

(vii)    Guarantees in respect of Funded Debt of another Person        $        

(viii)    Funded Debt of any partnership or joint venture or other similar
entity in which such Person is a general partner or joint venturer,
and, as such, has personal liability for such obligations, but only
to the extent there is recourse to such Person for payment
thereof                                $        


        



(ix)    Consolidated Funded Debt
[(a)(i) + (a)(ii) + (a)(iii) + (a)(iv) + (a)(v) + (a)(vi) + (a)(vii)
+ (a)(viii)]                            $        

(b)    Consolidated EBITDA for the period of the four fiscal quarters ending on such date:

(i)    Consolidated Net Income for such period            $        

To the extent deducted in calculating such Consolidated Net Income (other than clause (b)(xi) below), without duplication:

(ii)    Consolidated Interest Charges for such period            $        

(iii)    the provision for federal, state, local and foreign income taxes
payable by the Consolidated Group for such period        $        

(iv)    the amount of depreciation and amortization expense for such
period                                $        

(v)    non-cash expenses for such period (excluding any non-cash
expense to the extent that it represents an accrual of or reserve
for cash payments in any future period)                $        


(vi)    non-cash goodwill impairment charges                 $        

(vii)     any non-cash loss attributable to the mark-to-market
adjustments in the valuation of pension liabilities (to the extent
the cash impact resulting from such loss has not been realized)
in accordance with Accounting Standards Codification 715
(ASC 715)                            $        

(viii)     any fees, expenses or charges (other than depreciation or
amortization expense) related to any Acquisition, Disposition,
issuance of equity interests, other transactions (excluding
intercompany transactions) permitted by Section 8.02 of the
Credit Agreement, or the incurrence of Indebtedness not
prohibited by the Credit Agreement (including any refinancing
or amendment thereof) (in each case, whether or not
consummated), including, but not limited to, such fees, expenses
or charges related to the Credit Agreement and the other Loan
Documents and any amendment or other modification of the
Credit Agreement or the other Loan Documents            $        

(ix)    any expense to the extent that a corresponding amount is
received during such period in cash by the Company or any of
its Subsidiaries under any agreement providing for
indemnification or reimbursement of such expenses        $        



        



(x)    any expense with respect to liability or casualty events or business
interruption to the extent reimbursed to the Company or any of its
Subsidiaries during such period by third party insurance        $        

(xi)    the amount of dividends or distributions or other payments
(including any ordinary course dividend, distribution or other
payment) that are actually received in cash (or converted into
cash) for such period by a member of the Consolidated Group
from any Person that is not a member of the Consolidated Group
or otherwise in respect of any unconsolidated investment        $        

To the extent included in calculating such Consolidated Net Income:

(xii)
non-cash income during such period (excluding any non-cash
income to the extent that it represents cash receipts in any future
period)                                $        

(xiii)    any non-cash gains attributable to the mark-to-market
adjustments in the valuation of pension liabilities in accordance
with Accounting Standards Codification 715 (ASC 715)        $        

(xiv)    Consolidated EBITDA
[(b)(i) + (b)(ii) + (b)(iii) + (b)(iv) + (b)(v) + (b)(vi) + (b)(vii)
+ (b)(viii) + (b)(ix) + (b)(x) + (b)(xi) – (b)(xii) – (b)(xiii)]    $        

(c)    Consolidated Leverage Ratio
[(a)(ix)/(b)(xiv)]                            __________:1.0





        

Exhibit 10.3

PROJECTLIONMARBLLITHI_IMAGE2.JPG                         


MARBL Joint Venture Agreement
MARBL Lithium Project


Wodgina Lithium Pty Ltd
Albemarle Wodgina Pty Ltd
MARBL Lithium Operations Pty Ltd







Contents    Page
1
Defined terms and interpretation    1
1.1
Definitions in the Dictionary    1
1.2
Interpretation    1
2
Joint Venture    1
2.1
Formation of Joint Venture    1
2.2
Purposes of Joint Venture    1
2.3
Reserved Rights    2
2.4
Exercise of Iron Ore Rights    2
2.5
Transfer of incomplete Project Facilities    4
2.6
Name    5
2.7
Relationship of Participants    5
2.8
Entitlement to Product    5
2.9
Tenants in common    5
2.10
No partition    6
2.11
Rights and obligations several    6
2.12
Mutual obligations    6
2.13
Protection of Tenements etc    6
2.14
Maintain Tenements etc    6
2.15
Rehabilitation    6
2.16
Party warranties    7
2.17
Payment of Royalties    8
3
Term and termination    9
3.1
Term of Joint Venture    9
3.2
Disposal of Joint Venture Assets upon termination    10
3.3
Certain obligations continue beyond termination    10
3.4
Continued operation of Refinery Plant    10

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4
Manager    11
4.1
Initial Manager    11
4.2
Shareholding in the Manager    11
4.3
Removal of Manager    11
4.4
No transfer of Manager’s interest    13
4.5
Delivery of property on change of Manager    13
4.6
Liability of Manager and indemnity    14
4.7
Attorney    14
5
Powers and duties of Manager    14
5.1
Conduct of Joint Venture Operations    14
5.2
Insurance    18
5.3
Funding of the Manager    18
5.4
Conduct of operations    18
5.5
Independent status of Manager    18
5.6
Delegation    18
5.7
Manager's custody of Joint Venture Assets    19
5.8
Contracts with Affiliates of Manager    19
5.9
Contracts with Third Parties    20
5.10
No profit or loss by Manager    22
5.11
Good faith    22
5.12
Ratify actions of Manager    22
5.13
Services to the Joint Venture    22
5.14
Further services    23
6
Management Committee    24
6.1
Establishment of Management Committee    24
6.2
Composition of Management Committee    24
6.3
Meetings    25
6.4
Notice of meetings    25
6.5
Quorum    26
6.6
Chairperson    26

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6.7
Senior management personnel of the Manager    26
6.8
Voting rights    27
6.9
Ordinary Resolutions    28
6.10
Special Resolutions    28
6.11
Advisers    28
6.12
Authority of Representatives    29
6.13
Resolution without meeting    29
6.14
Manager’s delegate    29
6.15
Minutes    29
6.16
Sub-committees    30
6.17
Services    30
6.18
Recommendations and decisions of sub-committees    30
7
Budgets, planning and contributions    30
7.1
Commencement under Initial Mine Plan and Budget    30
7.2
Preparation and approval of the Business Plan    31
7.3
Contents of Business Plan    31
7.4
Revision of Business Plan    33
7.5
Approval of Business Plan and revisions    34
7.6
Temporary operating plan if Business Plan not approved    34
7.7
Business Plan is binding on the Manager    34
7.8
Urgent action    35
8
Provision of funds    36
8.1
Obligation to contribute    36
8.2
Manager may apply funds held    36
8.3
Monthly Cash Call    36
8.4
Payment of Called Sum    37
8.5
Emergency Cash Call    38
8.6
Bank account    38
8.7
Disbursements from bank accounts    39

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8.8
Repayment of surplus funds    39
8.9
Accounting for Called Sums    39
9
Records, accounts and reports    39
9.1
Manager to keep records and accounts    39
9.2
Place for records    40
9.3
Annual financial statement    40
9.4
Monthly report    40
9.5
Forecasts    41
9.6
Other reporting requirements    42
9.7
Information and data    42
9.8
Copies of reports to Participants    44
9.9
Format    44
9.10
Additional reporting    44
10
Audit and access    44
10.1
Audit    44
10.2
Participant’s access to records    45
10.3
Access to Joint Venture Area and Joint Venture Assets    45
11
Confidential Information    46
11.1
Information to be kept confidential    46
11.2
Protection of Confidential Information    47
11.3
Announcements    47
11.4
Continuing confidentiality obligation    47
11.5
MRL Standstill    47
11.6
Albemarle Standstill    48
12
Assignments and charges    49
12.1
Restrictions on assignments and charges    49
12.2
Permitted transfer to Subsidiaries    50
12.3
Sale of Participant's lithium business    50
12.4
Transfer of Participant’s Joint Venture Interest    50
12.5
Right of last refusal    51

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12.6
Requirements of offer to Continuing Participants    53
12.7
Charge of Participant’s Joint Venture Interest    54
12.8
Notice of intention to create Security Interest    54
12.9
Sale of Joint Venture Interest by Chargee    55
12.10
Set-off    55
12.11
Assumption of Joint Venture obligations by Transferee    55
12.12
Change in Control    56
13
Defaults and remedies    60
13.1
Event of Default    60
13.2
Notices of default    60
13.3
Payment of interest upon default    61
13.4
Rights following an Event of Default    61
13.5
Payment of Unpaid Called Sum    62
13.6
Delivery of Cross Security    62
13.7
Option to acquire Joint Venture Interest of Defaulting Participant    63
13.8
Value of Joint Venture Interest of Defaulting Participant    66
13.9
Remedies not exclusive    67
14
Force Majeure    68
15
Notices    68
15.1
General    68
15.2
How to give a communication    68
15.3
Particulars for delivery    69
15.4
Communications by post    69
15.5
Communications by email    70
15.6
Process service    70
15.7
After hours communications    70
16
GST    70
16.1
Construction    70
16.2
Consideration GST exclusive    71

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16.3
Payment of GST    71
16.4
Timing of GST payment    71
16.5
Tax invoice    71
16.6
Adjustment event    71
16.7
Reimbursements    71
16.8
Calculations based on other amounts    72
16.9
No merger    72
16.10
GST joint venture    72
17
Expert determination    72
17.1
When appointed    72
17.2
Appointment    72
17.3
Instructions    73
17.4
Procedure    73
17.5
Costs    73
18
Dispute resolution    74
18.1
Dispute resolution process    74
18.2
Dispute Notice    74
18.3
Meeting of the parties' designated representatives    74
18.4
Meeting of Senior Executives and Chief Executive Officers    74
18.5
Court proceedings    74
18.6
Urgent interlocutory relief    75
19
General    75
19.1
Consents and approvals    75
19.2
Duty    75
19.3
Legal costs    75
19.4
No liability for consequential losses    75
19.5
Entire agreement    75
19.6
Further assurances    76
19.7
Rights cumulative    76
19.8
Severability    76

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19.9
Survival and merger    76
19.10
PPS Act    76
19.11
Variation    76
19.12
Waiver    76
19.13
Governing law    77
19.14
Counterparts    77
19.15
Ipso Facto Stay    77
19.16
Relationship with Shareholders' Deed    77
19.17
Remote conferencing    77
Schedule 1
Dictionary    77
Schedule 2
Tenements    94
Schedule 3
Deed of Cross Security    95
Schedule 4
Special Resolutions    96
Schedule 5
Accounting Procedure    98
Schedule 6
Deed of Assignment and Assumption    104
Schedule 7
Kemerton Mortgages    105
Execution page
106
Attachment A
Confidentiality Undertaking
 


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Date:     1 November 2019                    
Parties
1
Wodgina Lithium Pty Ltd
ACN 611 488 932
of 1 Sleat Road, Applecross WA 6153
(WLPL)
2
Albemarle Wodgina Pty Ltd
ACN 630 509 303
of Minter Ellison Building, Level 3, 25 National Circuit, Forrest ACT 2603
(AWPL)
3
MARBL Lithium Operations Pty Ltd
ACN 637 077 608
of 1 Sleat Road, Applecross WA 6153
(WLOPL)
The parties agree
1
Defined terms and interpretation
1.1
Definitions in the Dictionary
A term or expression starting with a capital letter:
(a)
which is defined in the Dictionary in Schedule 1, has the meaning given to it in the Dictionary;
(b)
which is defined in the Corporations Act, but is not defined in the Dictionary, has the meaning given to it in the Corporations Act; and
(c)
which is defined in the GST Law, but is not defined in the Dictionary or the Corporations Act, has the meaning given to it in the GST Law.
1.2
Interpretation
The interpretation clause in Schedule 1 sets out rules of interpretation for this agreement.
2
Joint Venture
2.1
Formation of Joint Venture
The Participants agree to associate themselves on and from the Effective Date as an unincorporated joint venture under which the initial Joint Venture Interests of the Participants are as follows:
WLPL’s Joint Venture Interest
AWPL’s Joint Venture Interest
40%
60%

2.2
Purposes of Joint Venture

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The purposes of the Joint Venture are:
(a)
the exploration, development, mining, processing and production of Minerals from the Tenement Area (or such other areas as the Participants may agree from time to time) upon the terms and conditions set out in this agreement;
(b)
the construction and operation of the Refinery Plant upon the terms and conditions set out in this agreement to:
(i)
process Minerals from the Tenement Area; and/or
(ii)
provided a Special Resolution of the Management Committee has been passed, process Minerals sourced from outside the Tenement Area;
(c)
to implement the Business Plan;
(d)
to carry out any other activities as the Participants may agree; and
(e)
all such other matters and things as may be incidental to the foregoing, including Rehabilitation of the Tenements and Mine Closure.
2.3
Reserved Rights
(a)
The parties acknowledge that:
(i)
WLPL is the holder of Iron Ore Rights, and such rights permit WLPL to conduct certain exploration and mining activities on the Tenements in respect of Iron Ore, for so long as the Iron Ore Rights exist, and such rights do not form part of the Joint Venture Assets; and
(ii)
pursuant to the GAMG Mineral Rights Agreement, rights to conduct certain exploration and mining activities on the Tenements in respect of Tantalum were granted to GAMG, and such rights do not form part of the Joint Venture Assets.
(b)
AWPL acknowledges that WLPL may apply for a variation to the terms of grant of the Tenements to the extent necessary so that the terms of grant include the right to explore or mine for Iron Ore and that upon such variation being granted, such Iron Ore Rights will be reserved to WLPL (and in such case AWPL will consent to such application and sign any required forms and applications in that regard), subject to WLPL indemnifying AWPL in relation to any taxes or duties (including stamp duty) payable by AWPL in relation to such variation or reservation).
2.4
Exercise of Iron Ore Rights
(a)
Except as may be expressly permitted under the terms of a Notice of Consent, WLPL must exercise its Iron Ore Rights in such a manner so as to not adversely interfere with or impair the Exploration Operations and/or Mining Operations of the Joint Venture, which WLPL acknowledges takes precedence over WLPL’s rights to conduct Exploration Operations and Mining Operations in respect of Iron Ore.
(b)
If WLPL intends to commence any Exploration Operations or Mining Operations pursuant to its Iron Ore Rights it must first give a notice (Notice of Proposed Activity) to the Manager containing the following particulars (Proposed Activity):
(i)
in the case of Exploration Operations:

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(A)
the general nature and methods of Exploration Operations proposed on any part of the area of the Tenements;
(B)
the approximate number of Personnel and the general nature of the plant and machinery which it proposes to take on to the area of the Tenements for the purpose of conducting such Exploration Operations; and
(C)
the areas within each of the Tenements which it proposes to enter upon for the purpose of conducting such Exploration Operations; and
(ii)
in the case of Mining Operations:
(A)
a proposed Mine Development plan;
(B)
such relevant information as is reasonably necessary for the Manager to effectively consider the proposal to commence Mining Operations; and
(C)
the date that it intends to commence Mining Operations.
(c)
Upon receipt of a Notice of Proposed Activity, the Manager must convene a meeting of the Management Committee to consider the Notice of Proposed Activity. The Manager will give the Participants at least 45 days’ prior notice of such meeting.
(d)
If the Management Committee resolves (acting reasonably) that WLPL’s Proposed Activity may adversely interfere with or impair the Joint Venture's Mining Operations or currently existing Exploration Operations or areas identified as prospective for Minerals other than Iron Ore and Tantalum (Other Minerals) through any prior Exploration Operations, then the Manager must within five (5) Business Days of such resolution give a notice of objection to WLPL (Notice of Objection).
(e)
If the Management Committee resolves (acting reasonably) that WLPL’s Proposed Activity will not adversely interfere with or impair the Joint Venture's Mining Operations or currently existing Exploration Operations or areas identified as prospective for Other Minerals through any prior Exploration Operations (or, subject to clause 2.4(f)(ii), will not if WLPL complies with conditions determined by the Management Committee), the Manager must within five (5) Business Days of such resolution give a notice of consent to WLPL (Notice of Consent).
(f)
If the Manager:
(i)
does not issue a notice in accordance with either clause 2.4(d) or clause 2.4(e); or
(ii)
issues a notice in accordance with clause 2.4(e) and, within five (5) Business Days of receipt of such notice, WLPL notifies the Manager that it does not accept the conditions determined by the Management Committee which attach to such notice,
it shall be deemed to have issued a Notice of Objection.
(g)
A resolution of the Management Committee to issue a Notice of Objection or a Notice of Consent shall be by a Special Resolution.

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(h)
WLPL may not proceed with its Proposed Activity unless it has received a Notice of Consent from the Manager.
(i)
Subject to clause 2.4(f), upon receipt of a Notice of Consent from the Manager, WLPL may proceed to implement its Exploration Operations or Mining Operations (as applicable) in accordance with the relevant Notice of Proposed Activity subject to and in compliance with any conditions set out in the Notice of Consent, and provided it continues to use its best endeavours to minimise any adverse interference with the Joint Venture Operations.
(j)
Within five (5) days of a Notice of Objection being given, the Manager, AWPL and WLPL shall meet and discuss WLPL’s Proposed Activity and any objections to it in a bona fide endeavour to resolve the matter by agreement, and such discussions may include amendment or variation by:
(i)
WLPL of the extent or timing of the Proposed Activity or conditions it will comply with in relation to the Proposed Activity; or
(ii)
the Manager of the affected Mining Operations or Exploration Operations program given in its Notice of Objection.
(k)
If, notwithstanding the discussions between WLPL, AWPL and the Manager, they are unable to resolve the Manager’s objections set out in the Notice of Objection within fourteen (14) days of the Notice of Objection being received by WLPL, then a Participant may issue a Dispute Notice in accordance with clause 18.2 to attempt to resolve the matter.
(l)
If the Participants are unable to resolve the matter in accordance with clause 18.2, then the Proposed Activity may not proceed.
(m)
The Participants agree that (as between themselves):
(i)
the area of the Wodgina Resource is deemed to be a Development Area (as defined in the Mineral Rights Agreement) for Minerals other than Iron Ore and WLPL will not during the term of the Joint Venture issue a Notice of Proposed Activity in the exercise of its Iron Ore Rights in that area;
(ii)
subject to clause 2.4(m)(i), the process in this clause 2.4 will apply in substitution of the 'Notice of Proposal to Mine' process in clause 6.9 of the Mineral Rights Agreement, which for the avoidance of doubt means that the Participants (including AWPL) are not required to comply clause 6.9 of the Mineral Rights Agreement; and
(iii)
this agreement prevails to the extent of any inconsistency with the Iron Ore Rights.
2.5
Transfer of incomplete Project Facilities
The parties acknowledge that certain Project Facilities may not have reached practical completion at the Effective Date. The parties acknowledge that the transfer of ownership of such Project Facilities will occur in accordance with clause 5.2 and Schedule 15 of the Asset Sale and Share Subscription Agreement and will at that time become Joint Venture Assets.
2.6
Name
The name of the Joint Venture is the “MARBL Lithium Joint Venture”.

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2.7
Relationship of Participants
(a)
Nothing contained in a Joint Venture Document will be deemed to constitute a Participant being the partner of any other Participant.
(b)
Except as otherwise specifically provided for in a Joint Venture Document, nothing contained in a Joint Venture Document will be construed so as to constitute a Participant an agent or representative of any other Participant or to create any trust for any purpose howsoever, except to the extent to which the Manager is the agent of the Participants.
(c)
No Participant shall be under any fiduciary or other duty to the other which will prevent it from engaging in or enjoying the benefits of any competing endeavours, subject to the express provisions of this agreement.
2.8
Entitlement to Product
(a)
Each Participant shall be entitled and obliged, unless otherwise agreed by the Participants, to take in kind and separately dispose of, in proportion to its Joint Venture Interest, all Product as and when produced by the Joint Venture.
(b)
The Manager must deliver each Participant’s Joint Venture Interest share of Product to the Participant at the Delivery Point, and if separately delivered, by use of equipment and techniques which are specifically designed and intended not to favour any one Participant over another.
(c)
Title to, and the risk of loss of, or damage to, the Product passes to the relevant Participant at the Delivery Point.
(d)
Upon commencement of operation of the Refinery Plant, each Participant will cause such amount of its Lithium recovered from the Tenements to be refined using the Refinery Plant as specified in the Refinery Plant Business Plan.
(e)
Notwithstanding clause 2.8(d), the Participants may together (but not alone) enter into one or more swaps or other arrangements with other parties (including any Affiliate of AWPL), to exchange their respective Joint Venture Interest share of quantities of spodumene concentrate derived from Lithium, with quantities of spodumene concentrate derived from other sources, on the basis that the quantity received from the other party under the swap or other arrangement will be refined using the Refinery Plant.
2.9
Tenants in common
(a)
The Joint Venture Assets will be beneficially owned by the Participants as tenants in common in proportion to their respective Joint Venture Interests, notwithstanding that the legal title may be held by one or some only of the Participants or the Manager.
(b)
The Manager or any Participant which holds the legal title to any Joint Venture Asset, holds such Joint Venture Asset as agent for the Participants in proportion to their respective Joint Venture Interests.
2.10
No partition
Each Participant waives its rights to partition of the Joint Venture Assets and, to that end, agrees that it will not seek or be entitled to partition of any Joint Venture Asset, whether

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by way of physical partition, judicial sale or otherwise, until after termination of the Joint Venture.
2.11
Rights and obligations several
The rights and obligations of each Participant in respect of the Joint Venture will be, in every case, several in proportion to their respective Joint Venture Interests from time to time and will not be, or be construed to be, either joint or joint and several.
2.12
Mutual obligations
Each Participant will perform, observe and fulfil each and every one of its obligations under or arising out of each of the Joint Venture Documents.
2.13
Protection of Tenements etc
A Participant will not knowingly do or omit to do, and will at all times take proper care to ensure that it does not do or omit to do, any act, deed, matter or thing which may place any Tenement, Pipeline Licences, the Kemerton Sublease or the Kemerton Access Licence at risk of being cancelled, forfeited, lost, refused or surrendered, or which may otherwise jeopardise any Tenement, Pipeline Licence, the Kemerton Sublease or the Kemerton Access Licence in any way.
2.14
Maintain Tenements etc
Unless otherwise determined by a Special Resolution of the Management Committee, the Tenements, Pipeline Licences, the Kemerton Sublease and the Kemerton Access Licence will be maintained in force and renewed during the term of this agreement, and each Participant will take all action necessary on its part to maintain and renew the Tenements, the Pipeline Licences, the Kemerton Sublease and the Kemerton Access Licence.
2.15
Rehabilitation
(a)
Subject to clause 2.15(b), with effect from the Effective Date, the Participants shall bear the responsibility for Rehabilitation Obligations and the payment of the Rehabilitation Levy applicable to the Tenements in accordance with their respective Joint Venture Interests.
(b)
WLPL agrees that it is responsible for such amount of the Rehabilitation Levy paid by AWPL under clause 2.15(a) (or by the Manager on behalf of AWPL) and any costs incurred by AWPL in respect of Rehabilitation Obligations which are attributable to:
(i)
acts, errors or omissions of WLPL, its Affiliates or their Personnel which were in breach of a law, Approval or Tenement condition, during the WLPL Ownership Period;
(ii)
any exploration for or mining of Iron Ore on the Tenements occurring after the Effective Date; and
(iii)
any exploration for or mining of Tantalum on the Tenements occurring after the Effective Date pursuant to the exercise of mining or exploration rights for Tantalum in circumstances where GAMG is no longer the holder of the rights under the GAMG Mineral Rights Agreement and such rights have reverted to WLPL (including by WLPL becoming the successor to the GAMG under the GAMG Mineral Rights Agreement),

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(Rehabilitation Liability Costs).
(c)
WLPL must reimburse AWPL within 5 Business Days after it receives evidence of the payment by AWPL of any Rehabilitation Liability Costs.
(d)
As soon as reasonably practicable after the Effective Date, WLPL must provide AWPL with any information WLPL has compiled in relation to the Tenements for the purposes of calculating the Rehabilitation Levy.
(e)
Without limitation to clause 2.15(a), WLPL must indemnify AWPL against any loss, cost, damage or liability in relation to the exploration, mining and other related activities occurring on or after the Effective Date in respect of:
(i)
Iron Ore; and
(ii)
Tantalum (but only in circumstances where GAMG is no longer the holder of the rights under the GAMG Mineral Rights Agreement and such rights have reverted to WLPL),
including in relation to the reservation of those rights to WLPL, any statutory and private royalties, any compensation payment to any persons, the holding of and exercise of the rights by WLPL, and taxes and duties (including stamp duty) on any dealing with such rights (whether before, on or after the Effective Date) by WLPL and any dealing by AWPL with its Joint Venture Interest to the extent related to the holding by and reservation of such rights to WLPL.
To the extent that AWPL is required to include any amount payable under the indemnity provided in this clause 2.15(e) for tax purposes as assessable income or capital gain in a year and is not entitled to a tax deduction in that year for the full amount of any such loss, cost, damage or liability, the amount payable under the indemnity provided in this clause 2.15(e) must be increased by a factor calculated as follows:
1
(1-Tax Rate)
where Tax Rate means the applicable Australian income tax rate for AWPL.
2.16
Party warranties
(a)
Each party represents and warrants to each of the other parties that each of the following statements is true, accurate and complete and not misleading as at the Effective Date:
(i)
it is duly incorporated and validly exists under the law of its place of incorporation;
(ii)
the execution and delivery of this agreement has been properly authorised by all necessary corporate action;
(iii)
it has full corporate power and lawful authority to execute and deliver this agreement and to consummate and perform or cause to be performed its obligations under this agreement;
(iv)
this agreement constitutes a legal, valid and binding obligation on it enforceable in accordance with its terms;

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(v)
the execution, delivery and performance by it of this agreement does not or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with or result in a breach of or default under:
(A)
any provision of its constitution;
(B)
any material term or provision of any security arrangement (including any Security Interest), undertaking, agreement or deed to which it is bound;
(C)
any writ, order or injunction, judgement or law to which it is a party or is subject or by which it is bound;
(vi)
no Insolvency Event has occurred in relation to it; and
(vii)
so far as it is aware, there are no facts, matters or circumstances which give any person the right to apply to liquidate it or wind it up.
(b)
Each party acknowledges that each of the other parties has entered into this agreement in reliance on the warranties provided in clause 2.16(a).
(c)
Each of the warranties in clause 2.16(a) must be construed independently and is not limited by reference to another warranty provided in clause 2.16(a).
(d)
Each party indemnifies each of the other parties against any Loss which the other party may incur to the extent caused by any breach of the warranties provided in clause 2.16(a).
2.17
Payment of Royalties
(a)
Each Participant is solely liable for the payment of all statutory royalties payable under the Mining Act in respect of its Joint Venture Interest share of Product (Royalty Liability) and any other costs, fines, penalties, obligations and liabilities arising in connection with the payment or non-payment of its Royalty Liability.
(b)
Each Participant separately covenants and agrees with the Manager and each other Participant to:
(i)
subject to clause 2.17(f), within 30 days of the end of each month, provide the Manager with a copy of the calculation of its Royalty Liability for the previous month that it has submitted to the Department;
(ii)
pay the Royalty Liability (and any other costs, fines, penalties, obligations and liabilities arising in connection with the payment or non-payment of its Royalty Liability) when due; and
(iii)
subject to clause, 2.17(f) within 40 days of the end of each Quarter, provide the Manager with evidence of payment of the Royalty Liability (and any other costs, fines, penalties, obligations and liabilities arising in connection with the payment or non-payment of its Royalty Liability) for the previous Quarter.
(c)
Notwithstanding clause 2.17(a) and 2.17(b), the Participants each covenant and agree that if the submission of separate royalty returns and the separate payment of each Participant's Royalty Liability is not permitted or practicable having regard to the Mining Act or the policies or practice of any administering Government Authority, then each Participant will calculate and pay to the Manager all statutory royalties payable under the Mining Act in relation to its Royalty Liability and each

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Participant will, within such period determined by the Manager (acting reasonably having regard to applicable statutory deadlines for submission of royalty returns and payment of the Royalty Liability):
(i)
provide the Manager with its bona fide calculation of its Royalty Liability for the relevant period and, subject to clause 2.17(f), such other information required by the Manager to complete a royalty return for the relevant period in accordance with the Mining Act; and
(ii)
pay the Royalty Liability directly to the account nominated by the Manager.
(d)
If a Participant fails to comply with its obligations under clause 2.17(b)(ii) or clause 2.17(c)(ii) (if applicable) (Non-Paying Participant), then if the Manager or any other Participant (Rectifying Participant) or any person on behalf of another Participant pays, performs or discharges a Royalty Liability of a Non-Paying Participant, then that Non-Paying Participant must reimburse or compensate the Rectifying Participant (or such other person) within 5 Business Days after it receives evidence of that payment, performance or discharge (including all costs incurred in connection with the payment, performance or discharge).
(e)
Each Participant indemnifies the Manager and each of the other Participants for and against any Loss (including all costs, expenses, fines and penalties) arising from or in connection with the Participant’s Royalty Liability.
(f)
The parties acknowledge and agree that in providing the information required under clauses 2.17(b)(i), 2.17(b)(iii) or 2.17(c)(i), (as applicable) each Participant may be required to disclose information which is confidential or commercially sensitive to that Participant (Disclosing Participant), or information which if disclosed to the other Participants (each a Non-Disclosing Participant) could give rise to competition law risks. The parties will implement and comply with a ringfencing protocol to ensure that the information provided by the Disclosing Participant is not disclosed to, and cannot be accessed by the Non-Disclosing Participants, including by any director or other officer of the Manager appointed by any Non-Disclosing Participant, or any other employee seconded to the Manager by any Non-Disclosing Participant.
3
Term and termination
3.1
Term of Joint Venture
This agreement and the Joint Venture will commence on the Effective Date and, subject to the provisions of this agreement, will continue until completion of the winding up of all Joint Venture Operations after the first to occur of:
(a)
the Participants agreeing to terminate the Joint Venture;
(b)
the Management Committee by a Special Resolution determining:
(i)
that there are no economically recoverable reserves of Minerals in the Joint Venture Area and that the Tenements should be surrendered and that the operation of the Refinery Plant should cease; or
(ii)
that all the reserves of economically recoverable Minerals in the Joint Venture Area have been recovered and that the operation of the Refinery Plant should cease;

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(c)
the Management Committee by a Special Resolution determining to cease operating the Refinery Plant in accordance with clause 3.4(b); or
(d)
there being less than two (2) Participants holding an interest in the Joint Venture Assets.
3.2
Disposal of Joint Venture Assets upon termination
(a)
Upon the occurrence of a termination event under clause 3.1 (other than clause 3.1(d)), the Manager must commence winding up the Joint Venture Operations including:
(i)
satisfying all Rehabilitation Obligations and Mine Closure Obligations;
(ii)
taking such steps to dispose of the Joint Venture Assets in accordance with such instructions (if any) as the Manager may receive from the Management Committee; and
(iii)
otherwise complying with the Approved Closure Plan.
(b)
The net proceeds of realisation of the Joint Venture Assets, after satisfying all Rehabilitation Obligations and Mine Closure Obligations, will be distributed to the Participants in proportion to their respective Joint Venture Interests.
(c)
For the avoidance of doubt, all costs and expenses incurred by the Manager as a result of the termination of the Joint Venture will be Joint Venture Costs and will be paid by the Participants in proportion to their respective Joint Venture Interests.
3.3
Certain obligations continue beyond termination
Upon termination of this agreement for any reason, all rights and obligations of the parties cease, other than:
(a)
the obligation to pay any actual or contingent liabilities relating to Joint Venture Operations, including the cost of all Rehabilitation Obligations and Mine Closure Obligations and any severance, sickness and other employee benefit costs incurred or imposed in connection with Joint Venture Operations, or otherwise arising from this agreement, that have not been discharged as at the date of termination; and
(b)
any other obligations expressed to survive termination.
3.4
Continued operation of Refinery Plant
(a)
If the Management Committee determines by Special Resolution, that:
(i)
there are no economically recoverable reserves of Minerals in the Joint Venture Area and that the Tenements should be surrendered; or
(ii)
all the reserves of economically recoverable Minerals in the Joint Venture Area have been recovered,
but does not determine, by Special Resolution, that the operation of the Refinery Plant should cease, then clause 3.2 shall apply in respect of the winding up of Joint Venture Operations other than the operation of the Refinery Plant as if a termination event under clause 3.1 (other than clause 3.1(d)) had occurred and the Manager’s rights and obligations under clause 3.2 shall be read to apply only in

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respect of the winding up of Joint Venture Operations other than the operation of the Refinery Plant.
(b)
If the Joint Venture continues to operate the Refinery Plant following a winding up of all other Joint Venture Operations in accordance with clause 3.4(a), the Management Committee may at any time, by Special Resolution, determine to cease operation of the Refinery Plant.
4
Manager
4.1
Initial Manager
The Participants appoint WLOPL as the manager of the Joint Venture from the Effective Date, and WLOPL accepts that appointment upon and subject to the terms and conditions contained in this agreement.
4.2
Shareholding in the Manager
(a)
As at the date of this agreement, the entire issued share capital in the Manager is held by the Participants in the same proportions as their respective Joint Venture Interests.
(b)
If a Participant transfers the whole or any part of its Joint Venture Interest under clause 12 or clause 13, the transferring Participant must ensure that such number of shares in the Manager are transferred to the applicable transferee as is necessary to ensure that a Participant’s shareholding in the Manager remains in proportion to its Joint Venture Interest.
4.3
Removal of Manager
(a)
The Manager may only be removed by Special Resolution of the Management Committee, provided that the Manager may only be removed if the Management Committee, in the same meeting, appoints a replacement Manager by Special Resolution as the new Manager on the terms and conditions contained in this agreement, provided that if no new Manager can be appointed by such a vote, then, in circumstances where the Participants do not hold equal Joint Venture Interests, the Participant with the largest Joint Venture Interest will be deemed to be the Manager. If there is more than one Participant with the largest Joint Venture Interest, then those Participants will appoint the Manager and failing agreement between them, the matter will be referred to an Expert to be determined in accordance with clause 17.
(b)
This clause 4.3(b) applies for so long as a Participant holds a Joint Venture Interest of greater than 50% of the aggregate Joint Venture Interests of all Participants, and a corresponding majority of the issued shares in the Manager pursuant to clause 4.2. Subject to clause 4.3(c), if the Manager has committed a material breach of its obligations under this agreement (Manager Default) and such Manager Default has not been remedied, the following procedure will apply:
(i)
any Participant may give notice to the Manager requiring the Manager Default to be remedied, provided such notice is given within 12 months of the Participant becoming aware of the breach;
(ii)
if the Manager Default is not remedied within 15 days of receipt of a notice under clause 4.3(b)(i), each chief executive officer of the Ultimate Holding

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Company of each Participant must meet to discuss the circumstances of the Manager Default;
(iii)
within 90 days of receipt of notice under clause 4.3(b)(i), the Manager must remedy or deliver to the Participants a proposal to remedy the Manager Default (Remediation Plan), and each Participant must promptly confirm by notice to the Manager whether that Participant (acting reasonably) is satisfied with the Remediation Plan;
(iv)
if the Manager Default is not remedied within 90 days of receipt by the Manager of a notice under clause 4.3(b)(i) and the Remediation Plan is not agreed by the Participants under clause 4.3(b)(iii), the Participant with the next largest Joint Venture Interest may appoint an individual, subject to that individual being suitably qualified with the requisite expertise and demeanour, to act as temporary operations manager of the Manager to oversee the performance of the Joint Venture Operations by the Manager in accordance with this agreement, for the period until the earlier of:
(A)
the Participants each confirming by notice to the Manager their reasonable satisfaction with the Remediation Plan;
(B)
the Participants each confirming by notice to the Manager their reasonable satisfaction that the Manager will not commit a repeated or further material default; or
(C)
the Manager Default being remedied by the Manager; and
(v)
if the Participant with the next largest Joint Venture Interest does not appoint a temporary operations manager of the Manager under clause 4.3(b)(iv) within 120 days of a notice being issued under clause 4.3(b)(i), the Joint Venture Operations will be suspended until the earlier of:
(A)
any of the events described in clauses 4.3(b)(iv)(A) to 4.3(b)(iv)(C) occurring; or
(B)
a new Manager being appointed in accordance with clause 4.3(a).
(c)
Clause 4.3(b) applies in respect of a material breach of the Manager only to the extent such breach has not:
(i)
been caused by the act or omission of any or all of the Participants; or
(ii)
arisen from the Manager acting in accordance with:
(A)
a resolution or direction of the Management Committee; or
(B)
a direction of any or all of the Participants,
in each case, given in accordance with this agreement.
(d)
The removal of the Manager under clause 4.3(a) will take effect immediately, but such removal does not prevent the Manager from recovering Joint Venture Costs incurred up to that date from the Participants, as well as other unavoidable, pre-committed or existing Joint Venture Costs incurred after that date.

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4.4
No transfer of Manager’s interest
The Manager must not, without the prior written consent of the Participants, transfer any of its rights or interest under this agreement.
4.5
Delivery of property on change of Manager
On the effective date of the removal of the Manager under clause 4.3(a), the Manager will:
(a)
deliver to its successor (or as the Participants may otherwise direct):
(i)
all Joint Venture Assets in its possession or under its control;
(ii)
the Joint Venture Records and Accounts;
(iii)
all Confidential Information;
(iv)
the results of all work undertaken by or for the Manager for the purposes of the Joint Venture, including all Mining Information and the results of any tests undertaken by or for the Manager; and
(v)
all exploration, mining, engineering and other reports or studies prepared by or for the Manager;
(b)
transfer title to any Joint Venture Assets to its successor (or as the Participants, acting unanimously, may otherwise direct);
(c)
transfer any Security Interest it holds over Joint Venture Assets to its successor;
(d)
deliver documents regarding the novation or assignment of the rights and liabilities of the Manager under any contract entered into in its capacity as Manager to the successor which takes effect on and from the effective date of the Manager’s removal, and where the novation or assignment of such a contract has not occurred by the effective date of the Manager’s removal, the Participants and the outgoing Manager must each continue to use all reasonable endeavours to procure the novation or assignment of the contract as soon as reasonably practicable;
(e)
to the maximum extent legally permissible, transfer any authorisations from any Government Agency that can be transferred in relation to the Joint Venture Assets, and in respect of any such authorisations which cannot be transferred by the Manager to its successor, it must do all things reasonably necessary to assist the successor in applying for new authorisations, and if requested by the successor, terminate, surrender or cancel those authorisations once the successor has obtained the relevant authorisation or to enable the successor to apply for a replacement authorisation; and
(f)
provide assistance to the Participants as requested, for up to 90 days and on a cost reimbursement basis, to allow the management, supervision and conduct of Joint Venture Operations to continue without interruption or adverse effect and to facilitate the orderly transfer of responsibility for and conduct of the Joint Venture Operations to its successor,
and the outgoing Manager and the Participants must sign, and must ensure the replacement Manager signs, all documents necessary to effect the assignment to the replacement Manager of the rights and interests of the outgoing Manager under the Deed

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of Cross Security with effect as at the effective date of the appointment of the replacement Manager.
4.6
Liability of Manager and indemnity
The Manager shall not have any liability to the Participants for losses sustained or liabilities incurred by the Joint Venture, and the Manager, its directors, officers, employees, agents and contractors (Indemnified Persons) shall be indemnified by each Participant, severally to the extent of its Joint Venture Interest, in respect of the same except where such loss or liability arises as a direct result of the Indemnified Person’s fraud, Wilful Misconduct or Gross Negligence.
4.7
Attorney
Each Participant hereby irrevocably appoints the Manager from time to time as its lawful attorney to act for it in its name or otherwise as the Manager (acting reasonably) deems fit for the purposes of doing all such acts and executing all such documents, as may reasonably appear to the Manager to be necessary or desirable to keep the Joint Venture Assets in good standing. The Participants shall be bound by all acts of the Manager as attorney pursuant to this clause 4.7 and shall, subject to clause 4.6, indemnify the Manager for all costs and liabilities incurred or arising from the exercise of the Manager’s powers pursuant to this clause 4.7.
5
Powers and duties of Manager
5.1
Conduct of Joint Venture Operations
(a)
Subject to the terms and conditions of this agreement, and to such instructions as it may from time to time receive from the Management Committee, the Manager will, and is empowered to exercise all powers necessary to:
(i)
manage, supervise and conduct Joint Venture Operations on behalf of, and as agent for, the Participants; and
(ii)
implement the Business Plan and exercise and discharge its powers and duties under this agreement in accordance with the Business Plan.
(b)
Without limiting the generality of the foregoing, the Manager will:
(i)
perform and attend to all acts, matters and things required of the Manager in accordance with the Joint Venture Documents;
(ii)
subject to clause 5.1(d), perform on behalf of the Participants their obligations under the Tenements, the Pipeline Licences, the Kemerton Sublease and the Kemerton Access Licence and their obligations under any agreement entered into by the Participants (or by the Manager on behalf of the Participants) for the purposes of Joint Venture Operations;
(iii)
if clause 2.17(c) applies and subject to each Participant's compliance with that provision, calculate, collect and pay (on behalf of the Participants) all statutory royalties payable under the Mining Act within the applicable time period provided for under the Mining Act;
(iv)
pay:

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(A)
all rentals and other charges payable under the Tenements, the Pipeline Licences, the Kemerton Sublease and the Kemerton Access Licence;
(B)
all rates and taxes (other than taxes based upon or measured by income) payable on or assessed with respect to Joint Venture Operations or any Joint Venture Asset; and
(C)
the Rehabilitation Levy in respect of the Tenements, subject to the terms set out in clause 2.15(b);
(v)
generally do all things necessary to maintain the Tenements, the Pipeline Licences, the Kemerton Sublease and the Kemerton Access Licence in good standing and perform the Joint Venture Operations;
(vi)
prepare and file all reports and returns (except returns with respect to taxes based upon or measured by income) required by law or by the Tenements, the Pipeline Licences or any agreement with the State, the Commonwealth or other Government Agency with respect to Joint Venture Operations or the Joint Venture Assets;
(vii)
comply with all laws applicable to Joint Venture Operations, including laws pertaining to safety and environmental protection;
(viii)
comply with any decision or instruction of the Management Committee or the Participants made or given in accordance with this agreement;
(ix)
maintain the Project Facilities and the Refinery Plant in good working order;
(x)
act as the Participant's representative in respect of matters relating to Native Title Claims and Native Title Rights, and negotiate agreements with persons holding Native Title Rights and with parties to Native Title Claims, provided that the Manager may not execute any such agreements, without the prior approval of the Management Committee by Ordinary Resolution;
(xi)
comply or procure compliance with all contracts entered into by the Manager or the Participants in relation to the Joint Venture Operations (including any native title or heritage agreement) and ensure any proposed Business Plans are prepared to ensure compliance with any requirements under those agreements;
(xii)
replace any Project Facilities as the Manager determines are necessary or desirable so that Joint Venture Operations may be safely, efficiently and lawfully conducted at all times;
(xiii)
sell or otherwise dispose of any Project Facilities or supplies that may be worn out, surplus or no longer required for Joint Venture Operations, provided that any contract or arrangement for sale of such assets which have a book value, net of accumulated depreciation of:
(A)
more than $250,000 but less than $500,000 must be first approved by the Management Committee by an Ordinary Resolution; and
(B)
$500,000 or more must be first approved by the Management Committee by a Special Resolution;

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(xiv)
ensure that health, safety and environmental management systems are developed, implemented and maintained in respect of the Joint Venture Operations to the satisfaction of the Management Committee;
(xv)
endeavour to ensure that contractors engaged for the Joint Venture Operations develop, implement and maintain health, safety and environmental management systems to standards that comply with health, safety and environment plans approved by the Management Committee;
(xvi)
in the case of any emergency or accident, take such action as the Manager considers is necessary or advisable for the protection of life or the Joint Venture Assets;
(xvii)
acquire all materials, supplies, machinery, equipment and services necessary for the conduct of Joint Venture Operations;
(xviii)
subject to the requirements of Schedule 4, engage (which may be by secondment), dismiss, supervise and control all management, technical and labour personnel necessary for the performance of its obligations under this agreement including determining the terms and conditions of such engagement and conducting all industrial relations;
(xix)
arrange for the transportation, handling, loading, treatment and delivery of Product to the Delivery Point;
(xx)
notify the Participants as soon as practicable after becoming aware of any event or circumstance of which it is aware which is likely to result in:
(A)
litigation, arbitration or similar proceedings;
(B)
a material breach of any licence, authority, approval, direction, instrument or other similar matter;
(C)
a material breach of any applicable legal requirement;
(D)
a material breach of any Joint Venture Document or of any other material agreement of the Joint Venture; or
(E)
Force Majeure;
(xxi)
subject to the requirements of Schedule 4, institute, defend, compromise or settle any court or arbitration proceedings or insurance claims commenced or threatened by or against the Manager or a Participant affecting or relating to Joint Venture Operations or Joint Venture Assets, provided that unless otherwise instructed by a Participant, the Manager may conduct such proceedings or claims for and on behalf of and in the name of each Participant;
(xxii)
subject to the requirements of Schedule 4, take forward cover for, or hedge, foreign currency obligations or pre-pay or take any other appropriate action to avoid currency losses, in each case in relation to Joint Venture Operations, but in no circumstances is the Manager responsible for or entitled to any currency gains and losses, such losses and gains being borne by or credited to the Participants pro rata in proportion to their respective Joint Venture Interests;

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(xxiii)
carry out the Rehabilitation Obligations and Mine Closure Obligations and comply with the Approved Closure Plan;
(xxiv)
keep each of the Participants fully informed on all current material matters and developments arising out of Joint Venture Operations; and
(xxv)
generally do all such acts and things as may be necessary or desirable for the efficient conduct of Joint Venture Operations, the protection of the Joint Venture Assets and the attainment of the objects of the Joint Venture.
(c)
Subject always to this agreement, the Manager has the power to enter into agreements and bind the Participants in the exercise of its duties in accordance with this agreement.
(d)
Despite any other provision of this agreement, the Participants agree that if GAMG gives a notice of proposed activity under the GAMG Mineral Rights Agreement then:
(i)
subject to 5.1(d)(ii), if the proposed activity might materially adversely affect a known or possible deposit of Iron Ore capable of commercial exploitation, then WLPL may determine whether to issue a notice of objection to GAMG and may have conduct of any expert determination process under the GAMG Mineral Rights Agreement on behalf of the tenement holders in relation to that notice of objection and will indemnify AWPL against the costs of any such expert determination process;
(ii)
if the proposed activity might materially adversely affect known or possible deposits of both Iron Ore and any other Mineral (excluding Tantalum), which are each capable of commercial exploitation, including in respect of Iron Ore and any other Mineral (excluding Tantalum) in the Wodgina Resource, then either WLPL or AWPL may determine whether to issue a notice of objection to GAMG and have conduct of any expert determination under the GAMG Mineral Rights Agreement on behalf of the tenement holders in relation to that notice of objection, and if WLPL has issued a notice of objection in respect of Iron Ore only, WLPL will indemnify AWPL against the costs of any such expert determination process; and
(iii)
in all other circumstances, the Participants agree to jointly exercise their rights under the GAMG Mineral Rights Agreement through the Manager.
(e)
A Participant has the right to participate, at its own expense, in litigation or administrative proceedings initiated by the Manager on behalf of the Participants.
5.2
Insurance
The Manager shall in respect of Joint Venture Operations and the Joint Venture Assets:
(a)
take out and keep in full force and effect, all in the name of the Participants, insurance required by the laws in force in Western Australia or by virtue of any contractual obligations entered into for the purposes of the Joint Venture;
(b)
effect and maintain in the name of the Participants public and product liability insurance for an amount of not less than $50,000,000 in respect of each occurrence and unlimited in the aggregate in respect of all incidents occurring during the period of insurance;

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(c)
without limiting clause 5.2(d), effect and maintain in the name of the Participants such other insurances suitable for the Joint Venture Operations which may (without limitation) include pollution legal liability insurance, excess liability insurance, motor vehicle insurance, transit insurance and mining operations insurance, each for amounts and on such terms as may be determined by the Management Committee from time to time;
(d)
effect and maintain in the name of the Participants such other insurances as may be determined by the Management Committee from time to time; and
(e)
if requested, provide full details of all such insurances and certificates of currency to a Participant.
5.3
Funding of the Manager
The performance by the Manager of its duties under this agreement will be subject to it receiving sufficient funds from each Participant in accordance with this agreement.
5.4
Conduct of operations
The Manager will perform all of its duties under this agreement in a good, safe, workmanlike and commercially reasonable manner in accordance with good exploration and mining and other applicable industry standards and practices.
5.5
Independent status of Manager
(a)
The Manager will report to, and be subject to, the general supervision and direction of the Management Committee. Subject to that supervision, and to the terms of this agreement, the Manager will have the authority, discretions and powers of an independent contractor in its management, supervision and conduct of Joint Venture Operations.
(b)
The Manager may perform its obligations under this agreement itself or through its employees or such agents or contractors as it may decide (subject to clause 5.8). However, the use of an agent or contractor by the Manager in the performance of any of the duties of the Manager will not relieve the Manager of responsibility to the Participants for those duties.
5.6
Delegation
The Manager may delegate its rights and obligations as Manager, provided that:
(a)
any delegation of the whole or a large part of its obligations requires the prior approval by Special Resolution of the Management Committee;
(b)
any delegation of any of its obligations to a Participant or an Affiliate of a Participant requires the prior approval by Special Resolution of the Management Committee;
(c)
it remains liable for any acts or omissions of its delegates as if they were the acts or omissions of the Manager;
(d)
the Manager promptly informs the Management Committee of the identity of the delegate and the matter which has been delegated; and
(e)
the delegation is at no additional cost to the Participants.

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5.7
Manager's custody of Joint Venture Assets
(a)
Subject to the provisions of this agreement, the Manager will have the custody and control of the Joint Venture Assets.
(b)
The Manager will hold any Joint Venture Asset which stands in its name as agent for the Participants in proportion to their respective Joint Venture Interests.
(c)
Except:
(i)
where permitted by this agreement;
(ii)
with the prior approval of the Management Committee; or
(iii)
in the case of Permitted Security Interests,
the Manager must not mortgage, pledge, charge, encumber, sub-lease or otherwise dispose of or create any Security Interest or lien over or trust in respect of (or purport or attempt to do so) the Joint Venture Assets or any other real or personal property or money in which any Participant has an interest.
5.8
Contracts with Affiliates of Manager
(a)
Subject to clause 5.8(b), the Manager agrees that:
(i)
any agreements which are entered into by the Manager in the performance of its duties under this agreement with any of its Affiliates or with a Participant or any of its Affiliates (Related Party Contracts), will be on normal ‘arm's length’ commercial terms consistent with the provisions of this clause;
(ii)
the terms of such agreements will be no less commercially reasonable in the particular circumstances of such agreements than would have been the case had such agreements been entered into with Third Parties which are not Affiliates of the Manager or any Participant; and
(iii)
any such agreements (or material amendments to such agreements) will be submitted to the Management Committee for approval by Special Resolution before the Manager enters into them.
(b)
The Participants will procure that the Manager enters into (as Manager for and on behalf of the Participants):
(i)
the Crushing Services Agreement with the Crushing Services Provider;
(ii)
the Camp Services Agreement with the Camp Services Provider;
(iii)
the Intellectual Property Licence Agreement with the Licence Provider;
(iv)
the Transitional Services Agreement with MRL and Albemarle Lithium; and
(v)
the Plant Services Agreement with Albemarle Lithium,
on or after the Effective Date and acknowledge and agree that:
(vi)
each of the Crushing Services Provider, Camp Services Provider and MRL is an Affiliate of WLPL;

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(vii)
the Licence Provider and Albemarle Lithium is an Affiliate of AWPL; and
(viii)
the provisions of clause 5.8(a) do not apply in relation to the entry into the agreements listed in this clause 5.8(b).
(c)
Notwithstanding clause 5.8(b), the Manager agrees that any material amendment to any of the agreements listed in clause 5.8(b)(i) to 5.8(b)(v) will be submitted to the Management Committee for approval by Special Resolution before the Manager agrees to such amendment.
5.9
Contracts with Third Parties
(a)
Unless otherwise decided by the Management Committee, all contracts or other arrangements with Third Parties entered into by the Manager for the purposes of or in the course of Joint Venture Operations will be entered into by the Manager as agent for the Participants, with the result that:
(i)
wherever possible, using the Manager’s reasonable endeavours, the Participants will be severally liable under such contracts and arrangements as principals in proportion to their respective Joint Venture Interests, and not jointly or jointly and severally liable; and
(ii)
in the event of any breach or default on the part of a Third Party under such contracts and arrangements, proceedings may be brought against such Third Party to recover each Participant's loss.
(b)
Where, despite the Manager’s reasonable endeavours under clause 5.9(a)(i), the Participants are or become jointly or jointly and severally liable under a contract or other arrangement with a Third Party, the Participants agree that as between themselves, all liabilities under or in respect of any such contract (Contract Liability) will be borne by the Participants in proportion to their respective Joint Venture Interests, notwithstanding the terms of the contract.
(c)
In respect of clause 5.9(b):
(i)
if a Participant (Discharging Participant) or any person on behalf of a Participant pays, performs or discharges a Contract Liability of another Participant, then that Participant must reimburse or compensate the Discharging Participant within 5 Business Days after it receives evidence of that payment, performance or discharge; and
(ii)
each Participant (Indemnifying Participant) indemnifies each of the other Participants (Other Participants) for and against all Contract Liability suffered or incurred by the Other Participants:
(A)
arising from or in connection with the Other Participants taking any reasonable action to avoid, resist or defend themselves against any Contract Liability of the Indemnifying Participant; and
(B)
arising from or in connection with the Indemnifying Participant failing to comply with this clause 5.9(c).
(d)
Subject to clause 5.9(e), the Manager must not enter into any contract where:
(i)
it does not have sufficient approval to commit to the Operating Costs or Capital Cost in accordance with clauses 7.7 or 7.8;

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(ii)
the contract has not been approved in the Business Plan and the expected expenditure would be:
(A)
worth greater than $1,000,000 (annualised if applicable) but not greater than $20,000,000, unless the contract has first been submitted to the Management Committee and approved by an Ordinary Resolution; or
(B)
worth greater than $20,000,000 (annualised if applicable), unless the contract has first been submitted to the Management Committee and approved by a Special Resolution;
(iii)
the contract has been approved in the Business Plan but the expected expenditure:
(A)
would be worth greater than $5,000,000 (annualised if applicable) but not greater than $20,000,000, unless the contract has first been submitted to the Management Committee and approved by an Ordinary Resolution; or
(B)
would be worth greater than $20,000,000 (annualised if applicable), unless the contract has first been submitted to the Management Committee and approved by a Special Resolution;
(iv)
the contract has not been approved in the Business Plan and there is a multi-year expenditure commitment (whether by reason of minimum expenditure, take or pay, termination fees or inability to terminate the contract without a claim for damages) of at least $1,000,000 (annualised), unless the contract has first been submitted to the Management Committee and approved by a Special Resolution; or
(v)
the contract has been approved in the Business Plan but there is a multi-year expenditure commitment (whether by reason of minimum expenditure, take or pay, termination fees or inability to terminate the contract without a claim for damages) of greater than $10,000,000 (annualised), unless the contract has first been submitted to the Management Committee and approved by a Special Resolution.
(e)
Without limiting Schedule 15 of the Asset Sale and Subscription Agreement including clause 2.1(g), nothing in clauses 5.8 or 5.9 restricts the Manager from entering into the Kemerton Construction Contracts for and on behalf of the Participants.
(f)
The Manager must not enter into any contract requiring a Special Resolution unless the contract has first been submitted to the Management Committee and approved by a Special Resolution.
(g)
The Manager must, upon a request by any Participant, disclose to the Participants details and, if requested, copies of all contracts or other arrangements with Third Parties entered into by the Manager for the purposes of or in the course of Joint Venture Operations.
5.10
No profit or loss by Manager
Unless otherwise agreed between the Manager and all of the Participants, the Manager will perform its duties under this agreement on a no profit or loss basis to the intent that:

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(a)
the Manager will neither gain nor lose by performing its duties under this agreement;
(b)
the Manager will not be entitled to any fee margin or other remuneration from the Participants for the performance of its duties under this agreement; and
(c)
all costs, expenses and liabilities of the Manager arising out of the proper performance by the Manager of its obligations under this agreement, in accordance with the terms of this agreement, will be Joint Venture Costs and will be borne by the Participants in proportion to their respective Joint Venture Interests.
5.11
Good faith
(a)
The Manager will at all times act reasonably and in good faith in all its dealings with the Participants and in the performance of its duties under this agreement.
(b)
The Manager will at all times act in the best interests of the Joint Venture as a whole.
5.12
Ratify actions of Manager
Each Participant agrees to ratify and confirm all actions taken by the Manager in the due and proper performance of its duties and in accordance with the terms of this agreement.
5.13
Services to the Joint Venture
(a)
This clause 5.13 applies for so long as:
(i)
WLPL holds a Joint Venture Interest of at least 40% of the aggregate Joint Venture Interests of all Participants;
(ii)
WLPL is a subsidiary of MRL; and
(iii)
MRL is in the mining services business.
(b)
Without limiting clause 5.8, and subject to clauses 5.13(c), 5.13(d) and 5.13(e):
(i)
the Manager must use reasonable endeavours to engage or otherwise utilise WLPL's (or its Affiliates) plant, equipment and personnel (WLPL Services) at the Mine or the Refinery Plant; and
(ii)
where WLPL is willing and able to provide WLPL Services, WLPL must (or procure that its Affiliates) provide the WLPL Services to the Manager at cost and otherwise on terms to be agreed, including the principles described in clause 5.8.
(c)
The Manager's obligations in clause 5.13(b) are subject to:
(i)
each of AWPL and WLPL being satisfied (acting reasonably) that the engagement of WLPL (or its Affiliates) to provide WLPL Services is in the Manager's and the Joint Venture's best interests; and
(ii)
WLPL (or its Affiliates, as applicable) meeting the Manager's supplier qualification requirements from time to time.
(d)
Nothing in clause 5.13(b) constitutes a right of first refusal of a Participant (or its Affiliates) to provide any services to the Manager or the Joint Venture.

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(e)
This clause 5.13 will not apply in respect of the Refinery Plant until the last of:
(i)
the last KCCC Handover; or
(ii)
KCCC(SA) Handover,
(as applicable), pursuant to the Asset Sale and Subscription Agreement, except where the services are for the operation of the Refinery Plant following the KCCC Handover or KCCC(SA) Handover (as applicable).
5.14
Further services
(a)
For each Financial Year, the Manager will provide the Participants with a list of all service categories for the Mine and the Refinery Plant in respect of which the Manager considers it will need to engage service providers for the purpose of Joint Venture Operations during that Financial Year (Service Contract List).
(b)
The Service Contract List:
(i)
for the first Financial Year, will be prepared by the Participants and the Manager and provided by the Manager to the Participants within 30 days of the date of this agreement; and
(ii)
for each other Financial Year, will be prepared by the Manager and provided to the Participants together with the draft Business Plan to be provided in accordance with clause 7.2(b).
(c)
Within 30 days of receiving a Service Contract List, each Participant may give notice to the Manager identifying the service categories that the Participant (or any of its Affiliates) wishes to participate in as a service provider.
(d)
Following receipt of a notice under clause 5.14(c), the Manager will include the notifying Participant (Service Participant) (for so long as they remain a Participant and provided that they continue to provide notice in respect of each Financial Year that they wish to participate in as a service provider in respect of that service category) in the process of the Manager evaluating and selecting a service provider to provide those services to the Joint Venture (which may be through a competitive tender or otherwise).
(e)
If clause 5.14(d) applies, the Manager will consider awarding the service contract to the Service Participant (or its Affiliate, as applicable) subject to the following:
(i)
the Service Participant (or its Affiliate) must have the technical and financial capability to provide the relevant services;
(ii)
each of the Participants being satisfied (acting reasonably) that the engagement of the Service Participant (or its Affiliate) to provide the service is in the Manager's and the Joint Venture's best interests;
(iii)
the Service Participant (or its Affiliate) meeting the Manager's supplier qualification requirements from time to time; and
(iv)
any such service contract with the Service Participant (or its Affiliate) will include flexibility (without penalty) for the Manager to vary the service contract or terminate the service contract where Force Majeure or unexpected events occur which impact the Manager's requirements for the service.

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(f)
Nothing in this clause 5.14:
(i)
limits clause 5.8, which will apply in respect of any proposed contract with the Service Participant (or its Affiliate); or
(ii)
constitutes a right of first refusal of a Participant (or its Affiliates) to provide any services to the Manager or the Joint Venture.
(g)
This clause 5.14 will not apply in respect of the Refinery Plant until the last of:
(i)
the last KCCC Handover; or
(ii)
KCCC(SA) Handover,
(as applicable), pursuant to the Asset Sale and Subscription Agreement, except where the services are for the operation of the Refinery Plant following the KCCC Handover or KCCC(SA) Handover (as applicable).
6
Management Committee
6.1
Establishment of Management Committee
(a)
The Participants will prior to the Effective Date establish a Management Committee in accordance with this clause 6.
(b)
The Management Committee is empowered to make all decisions in relation to matters within the scope of the Joint Venture (as set out in clause 2.2), other than:
(i)
matters expressly reserved by this agreement for the Participants’ determination, decision, approval or consent; or
(ii)
matters which have been expressly delegated in accordance with this agreement to a Participant or the Manager.
6.2
Composition of Management Committee
(a)
Each Participant will be entitled to appoint Representatives on the Management Committee as follows:
(i)
a Participant with a Joint Venture Interest of 10% or greater, but less than 25%, may appoint one (1) Representative;
(ii)
a Participant with a Joint Venture Interest of 25% or greater, but less than 50%, may appoint two (2) Representatives; and
(iii)
a Participant with a Joint Venture Interest of 50% or greater may appoint three (3) Representatives.
(b)
Each Participant may also appoint an alternate for each of its Representatives who will be entitled to attend and vote at meetings of the Management Committee in which the relevant Representative does not participate.
(c)
Each Participant will appoint its Representatives and alternates (if any) by notice in writing to the Manager and the other Participants.

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(d)
A Participant may replace any of its Representatives or alternates, or revoke any such appointment, at any time by giving notice in writing to the Manager and the other Participants. The relevant appointment or removal will take effect immediately on receipt of that notice.
(e)
A Participant whose Joint Venture Interest falls below 10% will cease to have any right to appoint Representatives to the Management Committee, and any such appointments will cease to have effect immediately upon its Joint Venture Interest falling below 10%.
6.3
Meetings
(a)
Meetings of the Management Committee will (unless otherwise agreed by Special Resolution of the Management Committee):
(i)
be held at the Manager’s office in Perth or at such other place in Perth as the Management Committee may from time to time determine; and
(ii)
be held at least once in each Quarter or at such other intervals as the Management Committee may determine.
(b)
In addition, the Manager may at any time, and will within five (5) Business Days of being requested to do so by a Participant or Participants who, in aggregate, hold a Joint Venture Interest of 25% or more, convene a meeting of the Management Committee. Any request by a Participant or Participants for a meeting to be convened must set out the matters to be considered at the meeting.
(c)
Each Participant will bear the travel and other expenses of its Representatives attending meetings.
(d)
Meetings of the Management Committee may be held in person or by telephone, video conference or other means of instantaneous communication.
(e)
Each Participant will ensure its Representatives convene and attend meetings expeditiously to ensure the continuity of Joint Venture Operations.
6.4
Notice of meetings
(a)
Except as otherwise expressly stated otherwise in this agreement, the Manager will give to each Participant at least ten (10) Business Days’ notice of each meeting of the Management Committee (or at least two (2) Business Days' notice for a reconvened meeting), which notice must outline the business to be conducted at the meeting. Such notice will not be required where the Representatives of each Participant agree to waive notice of the meeting. Each Participant may give a notice to the Manager and each other Participant at least five (5) Business Days prior to the meeting to include any additional items of business to be conducted at the meeting.
(b)
Business not mentioned in a notice of meeting will not be dealt with at the meeting unless all Representatives (not just those present at the meeting) unanimously agree.
6.5
Quorum
(a)
The quorum for a meeting of the Management Committee will be at least one Representative of each Participant entitled to vote.

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(b)
If a quorum is not present within one hour after the time appointed for the meeting:
(i)
the meeting will stand adjourned to the same hour on the next Business Day at the same venue; and
(ii)
the Manager will endeavour to contact the Representatives who were not present at the first meeting to advise them of the adjourned meeting.
(c)
The quorum at an adjourned meeting will be those Representatives present at the adjourned meeting.
6.6
Chairperson
(a)
The chairperson at meetings of the Management Committee (Chairperson) will be selected by the Participant with the largest Joint Venture Interest from the Representatives of that Participant.
(b)
If two or more Participants have equal Joint Venture Interests and are the largest Joint Venture Interest holders, then the Chairperson will be selected by those Participants (from their appointed Representatives) respectively on a 12 month rotating basis (such 12 Month periods to cover a Financial Year).
(c)
From the Effective Date until 30 June 2020, one of the Representatives of AWPL shall be the Chairperson.
(d)
The Chairperson will not have a casting vote.
6.7
Senior management personnel of the Manager
(a)
The Participant with the largest Joint Venture Interest will have the right to appoint the chief executive officer and the chief financial officer of the Manager.
(b)
If two or more Participants have equal Joint Venture Interests and are the largest Joint Venture Interest holders, they will each have an alternating right to appoint either the chief executive officer or the chief financial officer of the Manager, respectively, for equal terms of no more than two years, such that the chief executive officer will have been appointed by one of those Participants and the chief financial officer will have been appointed by the other Participant, and then on rotation on the same basis.
(c)
AWPL will have the right to appoint the manager of the Refinery Plant.
(d)
In exercising their appointment rights under this clause 6.7, the Participants must consult with the other, and must appoint suitably qualified persons with the requisite expertise and demeanour.
6.8
Voting rights
(a)
The Representatives of a Participant present and entitled to vote at any meeting of the Management Committee will have between them that number of votes which is equal to the Joint Venture Interest of the Participant who appointed those Representatives. By way of example, the Representatives of a Participant whose Joint Venture Interest is 50% will have between them 50 votes. Any one Representative appointed by a Participant shall be entitled to cast all votes of the Representatives appointed by such Participant.

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(b)
Subject to clause 6.8(d), a Representative may attend and vote on a matter at a meeting of the Management Committee notwithstanding there is a conflict of interest in respect of that matter with the Participant appointing that Representative. However at the start of the relevant meeting before the vote is taken, the existence of this conflict of interest must be declared if not already known by the other Participants. Subject to the foregoing, clause 6.8(d) does not prevent a Representative who has a personal conflict of interest in respect of a matter from attending and voting on a matter at a meeting of the Management Committee, provided that the matter does not relate to the matters described in clauses 6.8(d)(i) to 6.8(d)(vi).
(c)
A Representative who decides (at his or her election) to withdraw from a meeting of the Management Committee due to a conflict of interest will be treated as not being entitled to vote at that meeting and such withdrawal will not result in the meeting lacking quorum.
(d)
In circumstances where there is a meeting of the Management Committee at which a resolution is proposed regarding:
(i)
the enforcement by the Manager of a right against a Participant, or any Affiliate of the Participant, in relation to a right under or performance in accordance with any contract, or a liability, loss, cost, charge or expense paid, suffered or incurred by the Joint Venture from an act or omission of that person;
(ii)
without limiting clause 6.8(d)(i):
(A)
an election by the Manager to purchase the Crushing Facility (as defined in the Crushing Services Agreement) under the Crushing Services Agreement; or
(B)
a Cash Call (including an emergency Cash Call under clause 8.5) relating to the purchase of the Crushing Facility as described in clause 6.8(d)(ii)(A);
(iii)
the execution of any Related Party Contract (other than the execution of the Related Party Contracts by the Manager in accordance with clause 5.8(b));
(iv)
the enforcement or waiver of any rights of the Manager under any Related Party Contract;
(v)
the issuing by the Manager of a Notice of Objection or a Notice of Consent under clause 2.4; or
(vi)
any delegation by the Manager under clause 5.6(b),
and the resolution is not passed at such meeting of the Management Committee, then any Participant other than a Participant which is or is an Affiliate of the applicable person (including delegate or counterparty) referred to in clauses 6.8(d)(i) to 6.8(d)(vi) (Conflicted Participant) may, immediately following such meeting, convene another meeting of the Management Committee. At the reconvened meeting, the Representatives of the Conflicted Participant:
(vii)
will not have the right to vote at the meeting;
(viii)
will not be counted for the purpose of determining the quorum for the meeting; and

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(ix)
any resolution dealing with that matter may be passed pursuant to the decision making threshold applicable to that decision, with those thresholds being adjusted such that the voting entitlement of the Representatives appointed by the Participants other than the Conflicted Participant will in aggregate be deemed equal to 100% total votes of all Representatives present and entitled to vote (and which for the avoidance of doubt shall exclude the Representatives appointed by the Conflicted Participant).
(e)
For the purposes of clause 6.8(d), if the Manager resolves to commence enforcement action against a Conflicted Participant or any of its Affiliates in respect of a Related Party Contract, the Conflicted Participant and its Representatives shall have no involvement in (other than its independent rights to defend against such action), and no right to receive information in respect of the conduct of, that enforcement action by the Manager on behalf of the Joint Venture and the Manager shall implement appropriate information handling protocols.
6.9
Ordinary Resolutions
Subject to clause 6.10, decisions at any meeting of the Management Committee will be made by the affirmative vote of one or more Representatives of those Participants present and entitled to vote at the meeting having more than 50% of the total votes of all Representatives present and entitled to vote.
6.10
Special Resolutions
Decisions taken by the Management Committee with respect to the matters set out in Schedule 4 and as otherwise specified in this agreement will require the affirmative vote of one or more Representatives of those Participants present and entitled to vote at the meeting having 75% or more of the total votes of all Representatives present and entitled to vote.
6.11
Advisers
A Participant may arrange at its own expense for consultants or other technical personnel (Advisers) and up to two other persons (Observers) to be present at meetings of the Management Committee to assist its Representatives, or in the case of the Observers to observe but not participate in the meeting, provided that:
(a)
the Participant must ensure that each Adviser and Observer is under a duty of confidentiality in relation to all information and materials to which the Adviser or Observer gains access as a consequence of the Adviser or Observer being present at a meeting of the Management Committee; and
(b)
a Participant must inform the other Participants of its intention to have an Adviser or Observer attend a meeting of the Management Committee on behalf of the Participant at least two (2) Business Days before the meeting (and such notice must include the name and origin of each Adviser and Observer).
6.12
Authority of Representatives
Each Representative will have full power and authority to represent the Participant who appointed the Representative in all matters within the powers of the Management Committee and all acts done by the Representative under this authority will be deemed to be the act of the Participant who appointed the Representative.

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6.13
Resolution without meeting
(a)
A resolution of the Management Committee which is signed by a Representative of each Participant who is entitled to vote (Circular Resolution) will be as valid and effective as if it had been passed at a meeting of the Management Committee properly convened and held.
(b)
A Circular Resolution may consist of one or more documents in identical terms, signed by a Representative of each Participant.
6.14
Manager’s delegate
(a)
The Manager will by notice in writing to the Participants designate a delegate to the Management Committee.
(b)
The Manager may change its delegate at any time by giving notice in writing to the Participants.
(c)
The Manager will cause its delegate, who may be accompanied by Advisers, to be present at each meeting of the Management Committee. Such delegate and Advisers will have no voting rights and the Manager must ensure that its delegate and Advisers are under a duty of confidentiality in relation to all information and materials to which the delegate or the Advisers gains access as a consequence of the Adviser or delegate being present at a meeting of the Management Committee.
(d)
The Manager’s delegate is not entitled to vote at meetings of the Management Committee.
6.15
Minutes
(a)
The Manager must arrange for minutes of each Management Committee meeting and each sub-committee meeting as described under clause 6.16 to be taken. The Manager’s costs and expenses in providing this service will be included in Joint Venture Costs.
(b)
A copy of the minutes of each Management Committee meeting and each sub-committee meeting must be given to each Participant as soon as practicable, but no later than 21 days after each meeting.
(c)
If a Participant wishes to make any comments in respect of the minutes, it must do so within 21 days after receiving the minutes by providing a notice to the Manager.
(d)
The minutes of a Management Committee meeting or subcommittee meeting, respectively, will be considered and approved (with or without amendments) at the next meeting of the Management Committee or relevant sub-committee (as applicable), and are to be signed by the Chairperson of the relevant Management Committee meeting or the chairperson of the relevant sub-committee meeting as described in clause 6.16(c), and are then conclusive evidence of the proceedings and decisions of the meeting to which they relate.
6.16
Sub-committees
(a)
The Management Committee may establish one or more sub-committees to consider and make recommendations or, if the Management Committee unanimously and expressly confers such a power, decisions on such matters as the Management Committee may from time to time refer to any such sub-committee.

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(b)
Each Participant will be entitled, but will not be obliged, to be represented on each sub-committee.
(c)
The Participant who has nominated the Chairperson of the Management Committee will appoint the chairperson of any sub-committee.
6.17
Services
The Management Committee may:
(a)
require the Manager to provide it with such services as the Management Committee may request; and
(b)
engage advisers and consultants as required,
and all expenses incurred in connection with the exercise of this power will be regarded as Joint Venture Costs and may be paid by the Manager accordingly even if not included in an Approved Budget.
6.18
Recommendations and decisions of sub-committees
Recommendations and (where applicable) decisions of any sub-committee of the Management Committee must be by unanimous vote. If unanimity cannot be achieved on any matter, such inability and the reasons for that will be reported to the Management Committee.
7
Budgets, planning and contributions
7.1
Commencement under Initial Mine Plan and Budget
The parties agree that in respect of the period from the Effective Date until the later of 30 June 2020 and the end of the first Financial Year following 30 June 2020, the Manager, on behalf of the Participants, will undertake Joint Venture Operations in accordance with the Initial Mine Plan and Budget.
7.2
Preparation and approval of the Business Plan
The parties agree that, subject to constraints of applicable competition rules:
(a)
not less than 120 days prior to the first day of each Financial Year, the Manager will consult with each of the Participants to discuss and agree the assumptions (including metal price, exchange rates, diesel price and other key commodities consumed, discount rate and inflation rate) to be used in preparing the draft Business Plan and Proposed Budget;
(b)
not less than 60 days prior to the first day of each Financial Year, the Manager will submit to each Participant a draft Business Plan (incorporating a Proposed Budget) which, among other periods, covers the period commencing on the following Financial Year;
(c)
the Participants will promptly review the draft Business Plan (incorporating a Proposed Budget) in consultation with the Manager. The Manager will update the draft Business Plan (incorporating a Proposed Budget) to include agreed changes, prior to submission of the Business Plan (incorporating a Proposed Budget) to the

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Management Committee for consideration and approval at least 30 days prior to the end of the current Financial Year; and
(d)
at the relevant meeting of the Management Committee in the final Quarter of each Financial Year, or at such other time as the Participants may otherwise agree, the Management Committee will consider and may approve all or part of the draft Business Plan and the Proposed Budget in accordance with clause 7.5(a), with or without amendment; and
(e)
the Participants agree to, and will procure that the Manager completes, a similar process to the process described in clauses 7.2(a) to 7.2(d) for the purpose of updating the Business Plan approved by the Management Committee under clause 7.2(d) to facilitate a Participant or its Affiliates' fiscal year, if any are different (at no cost to the Participant or its Affiliates).
7.3
Contents of Business Plan
(a)
Each Business Plan will set out and cover the following separate areas:
(i)
detailed information in relation to the proposed Joint Venture Operations and Joint Venture Costs in each Month during the first two Financial Years covered by the Business Plan, which information must be presented in accordance with the relevant categories set out in clause 7.3(c) (in respect of the LOM Business Plan) and clause 7.3(d) (in respect of the Refinery Plant Business Plan); and
(ii)
to the extent reasonably practical, information in relation to proposed Joint Venture Operations and Joint Venture Costs for each subsequent Financial Year during the then estimated Life of Mine, which information must be presented in accordance with the relevant categories set out in clause 7.3(c) (in respect of the LOM Business Plan) and clause 7.3(d) (in respect of the Refinery Plant Business Plan).
(b)
Each Proposed Budget will set out detailed information in relation to the proposed Joint Venture Operations and Joint Venture Costs in each Month during the new Financial Year, which information must be presented in accordance with the relevant categories set out in clause 7.3(c) (in respect of the LOM Business Plan) and clause 7.3(d) (in respect of the Refinery Plant Business Plan).
(c)
For the purposes of clauses 7.3(a) and 7.3(b), the monthly and annual information set out in a LOM Business Plan must be divided into the following separate plan categories (except to the extent that no expenditure or activity is anticipated for the relevant category):
(i)
(Mine Development / evaluation plan): this must contain details of proposed Mine Development and reasonable justification for projects proposed for Mine Development and evaluation activities.
(ii)
(mining physicals / mine metal plan): this must contain details of ore tonnes moved, waste, production risk rating.
(iii)
(Capital Costs plan): this must contain details and reasonable justification for any proposed Capital Works and a ranking of the priority of each proposed Capital Work. Assets to be scrapped or disposed of as a result of proceeding with any new Capital Work should be identified.

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(iv)
(Operating Costs plan): this must reflect the guidance and directions of the Management Committee as to the grade of ore to be mined, the amount of Minerals to be produced, and other matters relating to Operating Costs, including utilisation and availability of equipment.
(v)
(exploration plan): A plan for Exploration Operations including details and reasonable justification for projects together with a budget for those works, split into work on the Development Area (if appropriate) and work on other areas of the Tenements as proposed.
(vi)
(Rehabilitation plan): this must describe anticipated works to be carried out to meet Rehabilitation Obligations and clearly identify the expenditure to be charged against existing provisions and the expenditure which is not covered by existing provisions.
(vii)
(care and maintenance plan): this must describe the care and maintenance activities to be undertaken (if any) and the associated costs.
(viii)
(Closure Plan): this must describe the anticipated activities to be carried out to meet the Mine Closure Obligations.
(ix)
(manpower plan): this must be a plan setting out the staffing and manpower required in connection with the implementation of any proposed Joint Venture Operations referred to in this clause 7.3(c) or any other approved work programme or Joint Venture Operations under this agreement.
(x)
(budget): this must show:
(A)
working capital: expected movement in the individual significant components of working capital for the following year.
(B)
cash flow: the relevant periodic cash requirements for each of the categories in the LOM Business Plan and clearly distinguish between Capital Costs and Operating Costs.
(C)
Called Sum forecast: the extent to which the periodic cash requirements can be satisfied from cash on hand, and will include a Called Sums forecast showing the estimated periodic contribution required from each Participant.
(d)
For the purposes of clauses 7.3(a) and 7.3(b), the monthly and annual information set out in a Refinery Plant Business Plan must be divided into the following separate plan categories (except to the extent that no expenditure or activity is anticipated for the relevant category):
(i)
(Refinery Plant development / evaluation plan): this must contain details of any development or commissioning activities relating to the Refinery Plant (and in the case of any expansion, any construction activities) and all other activities necessary, expedient, conducive or incidental thereto. and reasonable justification for projects proposed for Refinery Plant development and evaluation activities.
(ii)
(Capital Costs plan): this must contain details and reasonable justification for any proposed Capital Works and a ranking of the priority of each proposed Capital Work. Assets to be scrapped or disposed of as a result of proceeding with any new Capital Work should be identified.

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(iii)
(Operating Costs plan): this must reflect the guidance and directions of the Management Committee as to the grade and amount of lithium hydroxide monohydrate to be produced, and other matters relating to Operating Costs, including utilisation and availability of equipment.
(iv)
(manpower plan): this must be a plan setting out the staffing and manpower required in connection with the implementation of any proposed Joint Venture Operations referred to in this clause 7.3(d) or any other approved work programme or Joint Venture Operations under this agreement.
(v)
(budget): this must show:
(A)
working capital: expected movement in the individual significant components of working capital for the following year.
(B)
cash flow: the relevant periodic cash requirements for each of the categories in the Refinery Plant Business Plan and clearly distinguish between Capital Costs and Operating Costs.
(C)
Called Sum forecast: the extent to which the periodic cash requirements can be satisfied from cash on hand, and will include a Called Sums forecast showing the estimated periodic contribution required from each Participant.
7.4
Revision of Business Plan
(a)
At any time prior to the approval and adoption of the next succeeding Business Plan (including the Proposed Budget), the Manager may propose revisions to the Business Plan (incorporating the Approved Budget) for approval by the Management Committee in accordance with the terms of this agreement.
(b)
The Manager must prepare proposed revisions to the Business Plan (incorporating the Approved Budget) if, at any time, it becomes necessary to make a material alteration in respect of any of the plans specified in the most recent Business Plan and/or Approved Budget , or if the Management Committee otherwise requests such an amendment, and submit the proposed revisions for approval by the Management Committee in accordance with the terms of this agreement.
(c)
The Manager must promptly provide the Participants with any revisions to the Business Plan (incorporating the Approved Budget) approved by the Management Committee.
7.5
Approval of Business Plan and revisions
(a)
A proposed Business Plan (incorporating a Proposed Budget) may be approved in whole or in part by the Management Committee by Ordinary Resolution.
(b)
Subject to clause 7.7(d), a revision or variation to the approved Business Plan (including the Approved Budget) requires approval by the Management Committee by Ordinary Resolution.
7.6
Temporary operating plan if Business Plan not approved
If the Management Committee has not approved all or part of a proposed Business Plan (including the Proposed Budget) for the following Financial Year (Relevant Year), by no later than one Month prior to the commencement of the Relevant Year, the following

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provisions will apply for so long as the unapproved part of that proposed Business Plan or Proposed Budget has not been so approved:
(a)
the portions of the Business Plan and Proposed Budget for the Relevant Year which are approved by the Management Committee will apply (to the extent practicable);
(b)
the relevant portions of the Business Plan for the Relevant Year from the most recently approved Business Plan will apply (to the extent they are applicable and were approved and including, at a minimum, ensuring that the expenditure obligations prescribed under each of the Tenements and all unavoidable obligations contained in agreements related to the Joint Venture Operations are properly met) to the portions of the Business Plan and Proposed Budget for the Relevant Year which are not approved by the Management Committee;
(c)
the portions of the plans and budgets referred to in clauses 7.6(a) and 7.6(b) will together be deemed to be an Approved Budget for the Relevant Year and implemented by the Manager in accordance with this agreement; and
(d)
when the Management Committee approves any unapproved portion of the new Business Plan under the terms of this agreement, the Manager will, as soon as practicable, vary its activities and expenditure so as to continue in accordance with the new and approved Business Plan (including the Approved Budget).
7.7
Business Plan is binding on the Manager
(a)
The most recent Business Plan (including the component plans and Approved Budget), as approved or revised and amended by the Management Committee in accordance with this agreement, will be binding on the Manager and the Participants.
(b)
Except as otherwise required or allowed under this agreement, the Manager must carry on the development, construction, maintenance and conduct of the Joint Venture Operations in accordance with the Business Plan (including the Approved Budget).
(c)
The Manager is obliged and authorised to conduct Joint Venture Operations and to incur expenditure and make disbursements approved, or for which an allowance or provision is made, in an Approved Budget and in accordance with the Approved Budget.
(d)
The Manager must use all reasonable endeavours not to incur any expenditure (including Capital Costs and Operating Costs) in excess of the amount budgeted in an Approved Budget except as provided below:
(i)
aggregate over-expenditure on Operating Costs of:
(A)
10% or less of the total expenditure under the Approved Budget is permitted without approval of the Management Committee;
(B)
more than 10% but less than 20% of the total expenditure under the Approved Budget is permitted if approved in advance by Ordinary Resolution of the Management Committee; and
(C)
20% or more of the total expenditure under the Approved Budget is permitted if approved in advance by Special Resolution of the Management Committee;

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(ii)
aggregate unbudgeted Capital Costs (including any overruns on budgeted Capital Costs) of:
(A)
the lesser of 20% of the individual line item or up to $5,000,000 from that under the Approved Budget is permitted without approval of the Management Committee;
(B)
between $5,000,000 and $25,000,000 from that under the Approved Budget is permitted if approved in advance by Ordinary Resolution of the Management Committee; and
(C)
$25,000,000 or more from that under the Approved Budget is permitted if approved in advance by Special Resolution of the Management Committee; and
(iii)
reasonable expenditure to fund urgent action under clause 7.8 is permitted without approval of the Management Committee.
7.8
Urgent action
(a)
Subject to clause 7.8(c), the Manager may take such emergency action as, in the Manager’s judgement, is necessary to preserve property, avoid, mitigate or prevent material risk of harm or damage to persons, property or the environment and to ensure Participants comply with their respective contractual and legal obligations in relation to the Joint Venture Operations.
(b)
The Manager must promptly notify the Participants as and when any costs of the nature referred to in clause 7.8(a) above are incurred.
(c)
To the extent that time permits, the Manager must use reasonable endeavours to:
(i)
seek the approval of the Management Committee as otherwise required of it under this agreement; or
(ii)
consult with the Participants and the Management Committee,
as soon as reasonably practicable after becoming aware of the need to take urgent action.
8
Provision of funds
8.1
Obligation to contribute
Each Participant must contribute to Joint Venture Costs in proportion to their respective Joint Venture Interests, and Cash Calls issued under this clause 8 will be prepared accordingly.
8.2
Manager may apply funds held
The Manager will be entitled to apply funds held by the Manager for the account of a Participant under this agreement to satisfy that Participant’s share of Joint Venture Costs.
8.3
Monthly Cash Call

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(a)
At or prior to the Effective Date, the Manager will notify the Participants of the estimated funding requirements required by the Manager for the period from the Effective Date up to the date the next Called Sum is payable by Participants under clause 8.4(a), including details of the estimated disbursements to be made for Joint Venture Costs during that period. The amount specified will comprise a Called Sum and is payable within five (5) Business Days after the Effective Date in accordance with clause 8.4(b).
(b)
Based upon the Business Plan (including the Approved Budget, as revised by the Management Committee from time to time) or where applicable any Approved Budget under clause 7.6, the Manager must submit to each Participant, on or before the 15th day of each Month, a statement (Cash Call) showing:
(i)
the estimated disbursements to be made for Joint Venture Costs during the following Month (showing Operating Costs and Capital Costs separately);
(ii)
the extent, if any, to which such disbursements can be satisfied by funds already held by the Manager for the account of the Participants under this agreement;
(iii)
the amount (Called Sum) required to be paid by each Participant (which, for the avoidance of doubt, is the cash amount which is required to be paid by a Participant after application of funds held by the Manager to the account of the Participant in accordance with clause 8.3(b)(ii));
(iv)
the place or places where, and manner in which, payment is to be made; and
(v)
such other details as the Management Committee may from time to time direct.
(c)
Subject to clause 8.5, a Called Sum for a Month may be for an amount which is:
(i)
under 120% of the monthly Called Sum forecast for that Month under the then current Approved Budget without approval of the Management Committee;
(ii)
120% or more, but less than 140%, of the monthly Called Sum forecast for that Month under the then current Approved Budget, if approved by an Ordinary Resolution of the Management Committee; or
(iii)
140% or more of the monthly Called Sum forecast for that Month under the then current Approved Budget, if approved by a Special Resolution of the Management Committee,
provided that:
(iv)
if at any time after the first three (3) Months of the Financial Year, the “Year to Date” Called Sum and the proposed Called Sum for the next Month would be greater than 110% of the Called Sum forecast for that period under the then current Approved Budget, the proposed Called Sum requires approval by an Ordinary Resolution of the Management Committee; and
(v)
if at any time after the first three (3) Months of the Financial Year, the “Year to Date” Called Sum and the proposed Called Sum for the next Month would be greater than 120% of the Called Sum forecast for that period under the

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then current Approved Budget, the proposed Called Sum requires approval by a Special Resolution of the Management Committee.
8.4
Payment of Called Sum
(a)
Each Participant must pay to the Manager the Called Sum applicable to it by the later of:
(i)
10 Business Days after a Cash Call is made; and
(ii)
the fifth Business Day of the Month following the Month in which the Cash Call is made.
(b)
Called Sums must be paid to the Manager:
(i)
within the timeframe prescribed by this clause 8.4;
(ii)
in Immediately Available Funds;
(iii)
free of set-off, deduction or counterclaim;
(iv)
unless specified in an Approved Budget or as otherwise agreed, in the currency requested by the Manager (Requested Currencies), it being agreed that unless otherwise agreed between the Participants, the Requested Currencies are limited to $Australian, $US, the Euro and Chinese Yuan and the breakdown of denominations requested must be consistent with the denomination of Manager expenditures; and
(v)
at the place or places, and in the manner, specified in the Cash Call.
(c)
Nothing in this clause 8.4 prevents a Participant paying a Called Sum on behalf of another Participant pursuant to any agreement which may exist between them or their Affiliates, and any such payment shall be credited as a payment by the Participant against whom the Cash Call was made.
8.5
Emergency Cash Call
(a)
If at any time the Manager is, or is likely to be, required to take urgent action under clause 7.8 or clause 6.8(d)(ii)(B) which requires funds in excess of the funds then available to the Manager, and which have not been provided for in the most recent Cash Call, the Manager may issue an emergency Cash Call to each Participant stating:
(i)
the amount of funds required for Joint Venture Costs;
(ii)
the Called Sum required to be paid by each Participant;
(iii)
the place or places where, and manner in which, payment is to be made; and
(iv)
the circumstances, in reasonable detail, giving rise to the necessity for obtaining such funds.
(b)
Each Participant must, as soon as practicable (and in any event within five (5) Business Days) after receipt of an emergency Cash Call, pay to the Manager the Called Sum applicable to it.

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(c)
The parties acknowledge that clause 8.3(a) does not apply to any Cash Calls made under this clause 8.5.
8.6
Bank account
(a)
All Called Sums and other moneys received or earned by the Manager on behalf of the Joint Venture will be deposited into a designated account or accounts in the name of the Manager, as manager of the Joint Venture, maintained at a branch or branches of a bank authorised to carry on a banking business under the Banking Act 1959 (Cth) selected by the Manager. Such bank must offer full on-line account visibility (on a read-only basis) to Participants.
(b)
Subject to clause 8.6(d), the Manager alone will be entitled to operate such account or accounts and may from time to time temporarily invest any surplus funds in such account in accordance with such short term investment policies as may from time to time be approved by the Management Committee.
(c)
No such investment will have a maturity exceeding the time within which the funds so invested are required to be disbursed on account of Joint Venture Costs.
(d)
All funds in any account opened by the Manager (including any short term investments acquired with such funds) will remain the beneficial property of the Participants in proportion to their Joint Venture Interests until such time as those funds are disbursed on account of Joint Venture Costs.
(e)
The Manager may only open a bank account with the approval of the Management Committee by Ordinary Resolution and must notify the Participants when the Manager opens or closes any such bank account acting as agent for the Participants.
8.7
Disbursements from bank accounts
The Manager will make from the accounts referred to in clause 8.6 all disbursements which are required to be made from time to time on account of Joint Venture Costs.
8.8
Repayment of surplus funds
(a)
The Manager will, if directed by the Management Committee, repay to each Participant (other than a Participant in respect of which there is an Event of Default or which is in default in the payment of any Called Sum) any funds which are in excess of that Participant’s share of the estimated disbursements for the following Month and the amount of working capital deemed necessary by the Manager for Joint Venture Operations as set out in the Cash Call provided to that Participant in accordance with clause 8.3.
(b)
The Manager will not be obliged to repay any such funds to a Participant if the amount is less than $100,000, unless requested to do so by that Participant.
8.9
Accounting for Called Sums
The Manager will use Called Sums, and any assets acquired by the use of such funds, for the purpose of Joint Venture Operations or for payment to Participants as provided in clause 8.8, and for no other purpose.
9
Records, accounts and reports

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9.1
Manager to keep records and accounts
(a)
The Manager will, in accordance with the Accounting Procedure and generally accepted accounting principles and customary cost accounting practices in the mining industry, keep, or cause to be kept, comprehensive, true and accurate records and accounts of:
(i)
Joint Venture Operations;
(ii)
the Joint Venture Assets;
(iii)
all Called Sums received by the Manager from (or on behalf of) each Participant;
(iv)
all contracts and transactions entered into by or on behalf of the Participants in connection with the Joint Venture;
(v)
the Joint Venture Cost and expenses of all transactions entered into by or on behalf of the Participants;
(vi)
all approvals of requisitions, purchase orders, invoices, contracts, authorisation for capital expenditure requests;
(vii)
all approvals required in connection with this agreement, including minutes of meetings, Ordinary Resolutions and Special Resolutions;
(viii)
agendas, minutes and documents provided to members for the Management Committee and any sub committees; and
(ix)
Personnel of the Manager subject to applicable laws, including in relation to privacy,
(Joint Venture Records and Accounts).
(b)
Without limiting the generality of the foregoing, the Joint Venture Records and Accounts will be maintained in such manner as may be reasonably necessary to enable each Participant to meet its reporting, accounting and tax return requirements (including deadlines).
9.2
Place for records
(a)
The Manager will determine the place or places within Australia where the Joint Venture Records and Accounts are kept.
(b)
The Manager must keep each Participant informed as to each location where the Joint Venture Records and Accounts are kept.
(c)
The Manager will make appropriate use of IT systems, including separate instances of systems and software utilised by the respective Participants, so as to maximise efficiency, effectiveness, transparency and visibility of the Joint Venture Records for the Participants and the Manager's costs in performing its obligations under this clause 9.2 will form part of the Joint Venture Costs.
9.3
Annual financial statement
(a)
The Manager must, in respect of each Financial Year, provide to each Participant as soon as practicable (and no later than 30 days) after the end of each Financial

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Year (commencing with the Financial Year in which the Effective Date occurs) a financial statement reflecting:
(i)
all receipts, expenditures and transactions made by the Manager on behalf of the Participants in connection with the Joint Venture during that Financial Year;
(ii)
all Joint Venture Assets in the custody or control of the Manager as at the end of that Financial Year; and
(iii)
all Joint Venture liabilities as at the end of that Financial Year.
(b)
The Manager will also provide comparable information to the information described in clause 9.3(a) as required by AWPL, including GAAP adjustments as applicable, as of the end of each AWPL or its Affiliates' fiscal years (currently ending 31 December).
(c)
All costs incurred by the Manager in complying with this clause 9.3 will form part of Joint Venture Costs.
9.4
Monthly report
The Manager will provide to each Participant, within five (5) Business Days after the end of each Month, a written report detailing:
(a)
the progress and results of Joint Venture Operations during the Month just ended (with commentary on any material departures from the Business Plan, including the Approved Budget);
(b)
all outgoings incurred and payments made during that Month;
(c)
a running reconciliation of actual incurred expenditures to date against costs under the Approved Budget (with commentary on any material departures);
(d)
all proposed outgoings and payments to be incurred or made during the next Month (with commentary on any material proposed departures from the Approved Budget);
(e)
estimate on quantity of stockpiles and estimated Mineral content including Lithium; and
(f)
a statement of the assets and liabilities of the Joint Venture and each Participant’s investment in the Joint Venture,
in sufficient detail to satisfy the respective Participant’s (or if requested by the Participant those of its Ultimate Holding Company) corporate reporting requirements and to a level which is at least the same or similar to that which the Manager may provide to its senior management or Affiliates. Notwithstanding the foregoing, the Manager will make available sufficient financial information for each Participant to close their books within their normal procedures and timelines as will be communicated by each Participant to the other and to the Manager, and to avoid doubt, the Manager's costs in complying with this obligation will form part of the Joint Venture Costs.
9.5
Forecasts

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The Manager will prepare the following forecasts each Month (except as otherwise specified below) and issue such forecasts to each Participant within five Business Days of Month end:
(a)
operational forecasting for the next three full calendar Months (broken down by Month) which includes:
(i)
spodumene production forecast in metric tonnes per day;
(ii)
maintenance plan on the Processing Plant; and
(iii)
if the Refinery Plant or other lithium hydroxide monohydrate plant that is a Joint Venture Asset is to operate in the relevant period:
(A)
lithium hydroxide monohydrate production in metric tonnes per day;
(B)
maintenance plan on lithium hydroxide monohydrate plant sodium; and
(C)
sulphate production forecast in metric tonnes per day;
(b)
operational forecasting for the next 18 full calendar Months which includes:
(i)
spodumene production forecast in metric tonnes per day;
(ii)
if the Refinery Plant or other lithium hydroxide monohydrate plant that is a Joint Venture Asset is to operate in the relevant period, lithium hydroxide monohydrate production in metric tonnes per day; and
(iii)
timing of expected extended plant maintenance and turnarounds;
(c)
financial forecasting for the next 12 full calendar Months, including at a minimum:
(i)
sales volume and cost of production by product family;
(ii)
other cost of goods sold;
(iii)
selling and administrative;
(iv)
depreciation and amortisation;
(v)
any other items that would be included in the income statement;
(vi)
operational spending broken down by cost centre; and
(vii)
capital project spending;
(d)
cash forecasting for the next full 12 calendar weeks, broken down by week, to be provided weekly; and
(e)
cash forecasting for the next full 12 calendar Months, broken down by Month.
9.6
Other reporting requirements
The Manager must provide the following reports to each Participant:

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(a)
immediately after the occurrence of any event which causes, or is likely to cause, material damage to the Joint Venture Assets or delay or adversely affect the Joint Venture Operations, a report of the event and an estimate of likely resultant costs, to the extent it can be reasonably estimated at that time;
(b)
as soon as practicable after the occurrence of any lost time injury, any legal or threatened claim valued above $250,000, significant environmental incident, damage or destruction of property valued at over $250,000 or other event that requires a report to be filed or notification to be lodged with a Government Agency, notice of that occurrence or event;
(c)
within ten (10) Business Days after a written request from a Participant, all reports and information required by a Participant (or any of its Affiliates) to comply with its (or any of its Affiliates’) periodic reporting and disclosure obligations under the rules of any applicable stock exchange, including in respect of mineral reserves and resources; and
(d)
as soon as practicable after notice to the Manager, a report on the status and conduct of any actual or threatened court or arbitration proceedings or insurance claims.
9.7
Information and data
(a)
The Manager will provide all information, data and material concerning Joint Venture Operations which the Participant (or its Affiliate) may reasonably require to meet its statutory reporting, audit and disclosure obligations under the Corporations Act, the ASX Listing Rules, the rules and regulations of the New York Stock Exchange, the applicable laws or the rules of any other recognised stock exchange or Government Agency as applicable.
(b)
The Manager will ensure that Exploration Information and Resources and Reserves are calculated and reported to the Participants in a manner that complies with the JORC Code.
(c)
Subject to clause 9.9, the Manager will provide reports on the Exploration Information and Resources and Reserves that are in a format reasonably required by a Participant (or its Affiliate) to meet its reporting and disclosure requirements referred to in clause 9.7(a). To the extent compliance with those reporting and disclosure requirements requires the consent of a Competent Person, the Manager must obtain that consent on behalf of the Participants (or its Affiliate) in the form reasonably required by the Participant (or its Affiliate).
(d)
The Manager will (in conjunction with the relevant Competent Person) be responsible for determining the assumptions to be used for the calculation of Resources and Reserves but will, so far as is practical, notify the Participants of those assumptions in advance of finalising any estimates of Resources and Reserves. Subject to being advised by the Participants of the relevant deadlines, the Manager will use all reasonable endeavours to provide the details of those assumptions to enable the Participant to comply with applicable regulatory reporting deadlines (of the Participant and/or its Affiliates), if it disagrees with the assumptions adopted by the Manager. If any Participant does not agree with the assumptions used by the Manager, the Manager will, upon request of any Participant, promptly provide to the Participants an electronic copy of the model used to generate the estimates of Resources and Reserves in such a form and with such content as will enable the Participant (or its Affiliate) to alter the relevant assumptions and generate its own estimates of Resources and Reserves. The Manager must provide the Participant (or its Affiliate) with such reasonable

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assistance as the Participant (or its Affiliate) may require in order to operate and assess the model for that purpose. In that event, the Participant (or its Affiliate) will be responsible for obtaining the necessary Competent Person consent for the estimates of Resource and Reserves that it generates.
(e)
To enable Participants (and their Affiliates) who have a financial year end of 30 June, or 31 December, or is required to publish a half-yearly or quarterly report to comply with their statutory reporting obligations, the Manager will provide those Participants (and their Affiliates) with the following information in relation to the Joint Venture for (as applicable) the year ending on, or as at, 30 June and/or 31 December or half year ending 30 June, or quarter year ending 31 March, 30 June, 30 September:
(i)
statement of financial position;
(ii)
income statement;
(iii)
cash flow statement;
(iv)
trial balance;
(v)
asset register of the Joint Venture Assets;
(vi)
inventory;
(vii)
employee leave balance, payroll tax returns and superannuation payments;
(viii)
cash balance;
(ix)
details of calculation of contingent liabilities and capital commitments;
(x)
Business Activity Statements, all sales tax, fringe benefits tax, customs duty, excise duty and diesel fuel rebates returns or statements;
(xi)
royalty statements in relation to the royalties payable to the State; and
(xii)
accounting policies,
prepared in accordance with International Financial Reporting Standards or GAAP (as applicable) and any supporting materials prepared by or on behalf of the Manager in preparing this information.
9.8
Copies of reports to Participants
Upon request by a Participant, the Manager must provide to the Participant:
(a)
copies of all reports prepared by the Manager in connection with Joint Venture Operations; and
(b)
copies of all material reports and other significant written communications to or from any government, government minister or Government Agency relating to any Tenement or Joint Venture Operations.
9.9
Format
The Manager must consult with the Participants, when requested by a Participant, in relation to the format of reports to be provided pursuant to this clause 9 and have regard

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to the information requirements of the Participants (and its Affiliates). The Manager also acknowledges that, accordingly, the format of the reports may change from time to time.
9.10
Additional reporting
Except where expressly provided otherwise, where a Participant (or its Affiliate) requires any particular reporting or information requirements that differ from that which the Manager would otherwise give under this clause 9, the additional external costs incurred by the Manager in providing information requested under this clause 9.10 must be paid by the requesting Participant, provided that the costs are material. To the extent any costs are not required to be met by the requesting Participant under this clause 9.10, they will constitute Joint Venture Costs under this agreement.
10
Audit and access
10.1
Audit
(a)
The Manager must provide to each Participant, within 30 days (or such later date agreed by the Participants) after the relevant end of each Financial Year, a report by an internationally recognised and qualified independent auditor registered in accordance with Part 9.2 of the Corporations Act appointed by AWPL after having first obtained the consent of WLPL (not to be unreasonably withheld) (Auditor), in which the Auditor reports to the Participants that the Auditor has examined the Joint Venture Records and Accounts, the basis for provision of funds to the Manager and the financial statement for the relevant Financial Year and is satisfied as to their accuracy or, if the Auditor is not so satisfied, the reason why the Auditor is not so satisfied.
(b)
The audit will be conducted in accordance with Australian Auditing Standards ASQC1 – Quality Control for Firms that Perform Audits and Reviews of Financial Reports and Other Financial Information, Other Assurance Engagements and Related Services Engagements (Complied) and will confirm that the financial report presents fairly, the financial position of the Joint Venture as at the balance date in accordance with the basis of preparation described in the Joint Venture financial statements. An objective of the audit is that the Participants and their Affiliates may rely on that audit for the purposes of preparing its audited financial statements as required by applicable laws. Notwithstanding, the audit will also be conducted in a manner consistent with the standards of the US PCAOB or of other US regulators applicable to audits of US publicly-held companies.
(c)
Each Participant will have the right of direct communication with the Auditor.
(d)
Without limiting this clause 10.1, AWPL has the right to request that in addition to the above audit, a similar audit be performed under GAAP and PCAOB auditing standards for relevant periods corresponding to AWPL or its Affiliates’ fiscal years' end (currently ending 31 December) and such costs will constitute Joint Venture Costs under this agreement.
10.2
Participant’s access to records
The Manager will, if requested:
(a)
permit a Participant to inspect and copy;
(b)
provide to a Participant copies of; and

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(c)
provide to a Participant statements compiled from,
the Joint Venture Records and Accounts and the results of all work undertaken by, or on behalf of, the Manager for the purposes of the Joint Venture (including plans, maps, geological and engineering reports, cores, samples, logs and surveys and other documents under the control of the Manager or any sub-contractor of the Manager). The requesting Participant will be required to pay any external costs and copying costs incurred by the Manager in providing information requested under this clause 10.2 provided that the costs are material and to the extent that any such information may require further interpretation/clarification, the Manager will make relevant Personnel available to the requesting Participant. To the extent any costs are not required to be met by the requesting Participant under this clause 10.2, they will constitute Joint Venture Costs under this agreement. Nothing in this agreement gives a Non-Disclosing Participant a right of access to information provided to the Manager by a Disclosing Participant that is subject to a ringfencing protocol in accordance with clause 2.17(f), except to the extent expressly authorised under that protocol.
10.3
Access to Joint Venture Area and Joint Venture Assets
(a)
Each Participant and its properly authorised representatives will be entitled at all reasonable times, and at the risk and expense of such Participant, to have:
(i)
access to, and the right to inspect, the Joint Venture Assets and the Joint Venture Area, provided the Participants and their officers, employees, agents and contractors must comply with the directions of the Manager when doing so;
(ii)
the right to consult with the employees of the Manager and with any independent contractors (and their employees) which have been engaged by the Manager concerning Joint Venture Operations and the performance by the Manager of its duties under this agreement;
(iii)
the right to take such samples of material employed by or produced from the Joint Venture Operations as are reasonably requested; and
(iv)
the right to appoint an independent Auditor to audit the affairs of the Joint Venture and the Manager, including the basis for the provision of funds by the Participants under clause 8.
(b)
Information and access will be provided promptly on request, provided that it does not unreasonably disrupt the conduct of the Joint Venture Operations.
(c)
The Manager must co-operate with Participants and any Auditor appointed to enable them to obtain information and samples contemplated by clause 10.3(a).
11
Confidential Information
11.1
Information to be kept confidential
This agreement, and all information which is made available to or obtained by a Participant or the Manager from or in connection with Joint Venture Operations, or under any Joint Venture Document, and which is not a matter of public knowledge or lawfully available from any other source and the Mining Information (collectively Confidential Information) will be and will remain confidential between the Participants and the

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Manager, and will not, without the prior written consent of the other Participants (which consent must not be unreasonably withheld), be disclosed to any third person other than:
(a)
a Participant or its directors, officers, employees and agents;
(b)
an Affiliate of a Participant or that Affiliate’s directors, officers, employees and agents;
(c)
the Manager;
(d)
any government, government minister, or Government Agency, which requires it or has power to require it under any applicable law, rule or regulation;
(e)
any court of competent jurisdiction which has directed it;
(f)
any bank or other recognised financial institution making a loan or giving accommodation to a Participant or to an Affiliate of a Participant;
(g)
any person to whom disclosure is permitted under the terms of any Joint Venture Document;
(h)
any person which in good faith is seeking to purchase or otherwise acquire the whole or part of the Joint Venture Interest of a Participant, or shares in a Participant or an Affiliate of a Participant, provided that an undertaking as to confidentiality by the person in a form set out in Attachment A is first obtained;
(i)
any professional legal adviser subject to professional obligations of confidentiality;
(j)
any other professional or other independent consultant or adviser engaged by a Participant or the Manager provided that an undertaking as to confidentiality by the person, in a form set out in Attachment A, is first obtained;
(k)
as may be required by law or by the rules of any recognised stock exchange on which shares or other securities of a Participant or its Affiliates are listed, except that the parties agree to the extent permitted that they will not disclose information of the kind described by section 275(1) of the PPS Act, except as permitted by any other provision of this clause 11.1 or required by any other law or regulation. For the avoidance of doubt, this does not permit the disclosure of information under section 275(4) of the PPS Act unless section 275(7) applies;
(l)
to satisfy legal disclosure obligations in a disclosure document issued by a Participant or its Affiliates to raise funds or implement or propose a corporate transaction involving the Participant or its Affiliates; or
(m)
for the purposes of any arbitration or court proceeding in respect of any dispute arising out of any Joint Venture Document.
11.2
Protection of Confidential Information
Each Participant and the Manager must take or cause to be taken such reasonable precautions as may be necessary to prevent the disclosure of any Confidential Information.
11.3
Announcements
If any Participant (or its Affiliate) wishes to publish any public statement (including a press release) relating to or in any way connected with Joint Venture Operations or the terms of

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any Joint Venture Document, then, to the extent permitted by law or the rules of any recognised stock exchange applying to the Participant or its Affiliates, that Participant must notify and, where practicable, provide a copy of the public statement to, the Manager and the other Participants before issuing the public statement.
11.4
Continuing confidentiality obligation
(a)
This clause 11 will apply to:
(i)
any Participant which ceases to be a Participant for a period of three (3) years after the date upon which such Participant ceases to be a Participant; and
(ii)
a Manager which ceases to be a Manager for a period of three (3) years after the date upon which such Manager was removed.
(b)
Upon the termination of this agreement, this clause 11 will, notwithstanding such termination, apply to the Participants and the Manager at the date of termination, for a period of three (3) years after such termination.
11.5
MRL Standstill
(a)
The Participants acknowledge and agree that some or all of the Confidential Information may be relevant to the price or value of the securities of MRL. Each Participant (other than WLPL) undertakes (which undertaking is given for the benefit of MRL) that it will not (and must ensure that its Affiliates will not) do anything that breaches the insider trading provisions of the Corporations Act from time to time.
(b)
During the period commencing on the date of this agreement and ending on the earliest of the following dates:
(i)
two (2) months after a Participant ceases to be a Participant;
(ii)
the date a person or persons jointly or in concert (other than a Participant or its Affiliates), publicly announce their intention to commence a Control Transaction which, at the time of announcement, is unanimously recommended by the board of directors of MRL; and
(iii)
the date MRL publicly announces that its board of directors has approved an agreement which contemplates a Control Transaction,
the Participants must not, and must ensure that no Affiliates:
(iv)
announce any intention to commence a Control Transaction in relation to MRL;
(v)
enter into any swap, derivative or other similar instrument the effect of which is to give the Participant an economic interest in securities (including shares) in the capital of MRL;
(vi)
acquire, agree to acquire or make any invitation or proposal to acquire, a relevant interest (as defined in the Corporations Act) directly or indirectly in any securities (including shares) in the capital of MRL; or
(vii)
advise, assist or encourage any other person in connection with any of the foregoing,

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unless this restriction is first waived in writing by MRL.
(c)
The Participants acknowledge that MRL may enforce the undertaking given by the Participants in this clause 11.5 despite the fact that it is not a party to this agreement.
(d)
For the avoidance of doubt, the provisions of this clause 11.5 will cease to apply if neither WLPL nor any of its Affiliates is a Participant.
(e)
The provisions of this clause 11.5 will cease to apply if MRL ceases to be the Ultimate Holding Company of any Participant.
11.6
Albemarle Standstill
(a)
The Participants acknowledge and agree that some or all of the Confidential Information may be relevant to the price or value of the securities of Albemarle. Each Participant (other than AWPL) undertakes (which undertaking is given for the benefit of Albemarle that it will not (and must ensure that its Affiliates will not) do anything that breaches the insider trading provisions of the Corporations Act or any other law or regulation from time to time.
(b)
During the period commencing on the date of this agreement and ending on the earliest of the following dates:
(i)
two (2) months after a Participant ceases to be a Participant;
(ii)
the date a person or persons jointly or in concert (other than a Participant or its Affiliates), publicly announce their intention to commence a Control Transaction which, at the time of announcement, is unanimously recommended by the board of directors of Albemarle; and
(iii)
the date Albemarle publicly announces that its board of directors has approved an agreement which contemplates a Control Transaction,
the Participants must not, and must ensure that no Affiliates:
(iv)
announce any intention to commence a Control Transaction in relation to Albemarle;
(v)
enter into any swap, derivative or other similar instrument the effect of which is to give the Participant an economic interest in securities (including shares) in the capital of Albemarle;
(vi)
acquire, agree to acquire or make any invitation or proposal to acquire, a beneficial interest directly or indirectly in any securities (including shares) in the capital of Albemarle; or
(vii)
advise, assist or encourage any other person in connection with any of the foregoing,
unless this restriction is first waived in writing by Albemarle.
(c)
The Participants acknowledge that Albemarle may enforce the undertaking given by the Participants in this clause 11.6 despite the fact that it is not a party to this agreement.

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(d)
For the avoidance of doubt, the provisions of this clause 11.6 will cease to apply if neither AWPL nor any of its Affiliates is a Participant.
(e)
The provisions of this clause 11.6 will ceases to apply if Albemarle ceases to be the Ultimate Holding Company of any Participant.
12
Assignments and charges
12.1
Restrictions on assignments and charges
(a)
Subject to clause 12.1(b), except as permitted in this clause 12, or as required under clause 13, no Participant will:
(i)
sell, convey, assign, transfer, novate, lease, sublease or otherwise dispose of; or
(ii)
create or permit to exist any Security Interest (other than a Permitted Security Interest) in respect of,
the whole or any part of its Joint Venture Interest.
(b)
Nothing in this clause 12 will operate to prevent a Participant from selling or otherwise disposing of its share of Product in the ordinary course of the Participant’s business.
(c)
Notwithstanding any other provision of this agreement (and, in particular, clauses 12.2 and 12.3), a Participant must not make any sale, transfer or other disposition if, upon completion of that sale, transfer or other disposition, that Participant or the assignee would have a Joint Venture Interest less than 10% but greater than zero (in other words, each Participant must have a Joint Venture Interest of at least 10%).
12.2
Permitted transfer to Subsidiaries
A Participant which is not in default in the payment of any Called Sum, and with respect to which an Event of Default is not then in existence (Transferor), may at any time, subject to the provisions of clause 12.11, transfer the whole or any part of its Joint Venture Interest to a Subsidiary of the Ultimate Holding Company of the Transferor (Transferee).
12.3
Sale of Participant's lithium business
(a)
A Participant that is WLPL (or any Transferee Subsidiary of WLPL under clause 12.2) which is not in default in the payment of any Called Sum, and with respect to which an Event of Default is not then in existence, and provided that MRL is the Ultimate Holding Company of that Participant, may at any time subject to provisions of clause 12.11, transfer the whole of its Joint Venture Interest to a Third Party, provided that the transfer is affected as part of a sale of all or substantially all of MRL's lithium business which, as at the Effective Date, includes MRL's and its Affiliates' direct and indirect legal and beneficial ownership interest of:
(i)
the Participant's Joint Venture Interest; and
(ii)
its share of the Mount Marion Lithium Project.

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(b)
A Participant that is AWPL (or any Transferee Subsidiary of AWPL under clause 12.2), which is not in default in the payment of any Called Sum, and with respect to which an Event of Default is not then in existence, and provided that Albemarle is the Ultimate Holding Company of that Participant, may at any time, subject to provisions of clause 12.11, transfer the whole or any part of its Joint Venture Interest to a Third Party, provided that the transfer is affected as part of a sale of all or substantially all of its global lithium business as described in its annual corporate filings from time to time.
12.4
Transfer of Participant’s Joint Venture Interest
A Participant which is not in default in the payment of any Called Sum, and with respect to which an Event of Default is not then in existence (Selling Participant), may at any time, subject to the provisions of clause 12.11, agree to sell for a cash consideration or a non-cash consideration which is readily convertible to a cash equivalent, the whole or any part of its Joint Venture Interest, provided that the sale must not proceed to completion unless:
(a)
the provisions of clause 12.5 have first been complied with; and
(b)
in the case of an assignment to a person who is not a Participant or its Affiliate, that assignee must be approved by the other Participants, which approval cannot be withheld if the assignee has:
(i)
the financial capacity to meet both the purchase price for acquiring the Selling Participant’s Joint Venture Interest, and the financial commitments of a Participant under this agreement to the extent of the assigned Joint Venture Interest, whether through its own financial standing or through the provision of satisfactory security, which may include a parent company guarantee from an entity with the requisite financial capacity or other satisfactory security; and
(ii)
the technical and operational capacity to meet the obligations of a Participant under this agreement.
12.5
Right of last refusal
The following provisions apply in respect of any sale referred to in clause 12.4:
(a)
the Selling Participant must give notice of the proposed sale to each of the other Participants, and must include in the notice (Proposed Sale Notice):
(i)
the name and address of the person to whom the Selling Participant’s Joint Venture Interest is proposed to be sold (Proposed Buyer);
(ii)
the portion of the Selling Participant’s Joint Venture Interest which is the subject of the proposed sale (Sale Interest);
(iii)
the cash consideration or cash equivalent of the non-cash consideration for which the Selling Participant’s Joint Venture Interest is proposed to be sold; and
(iv)
all the other terms and conditions of the proposed sale;
(b)
the Selling Participant must include with the Proposed Sale Notice an offer to sell the Sale Interest to such of the other Participants who are not then in default in the payment of any Called Sums, and with respect to which an Event of Default is not

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then in existence (Continuing Participants), in proportion to their respective Joint Venture Interests, at the same price (being in the case of non-cash consideration, unless the Continuing Participants agree otherwise in relation to a royalty, the cash equivalent determined under this clause 12.5) and, subject to clause 12.6, on the same terms and conditions on which it is willing to sell the Sale Interest to the Proposed Buyer. The offer must be in a form which is capable of immediate acceptance by the Continuing Participants;
(c)
if the consideration notified by the Selling Participant to the Continuing Participants under the Proposed Sale Notice is non-cash consideration, the Selling Participant must bona fide convert the non-cash consideration to a cash equivalent on a basis that is transparent and disclosed in the Proposed Sale Notice;
(d)
if any Continuing Participant does not agree with the basis on which the non-cash consideration has been converted to a cash equivalent, that party must so notify the Selling Participant and the other Continuing Participants within seven (7) days of it receiving the Proposed Sale Notice;
(e)
on a Continuing Participant so notifying the Selling Participant, all of the Participants will promptly meet and endeavour to reach agreement on the amount of the cash equivalent of the non-cash consideration. If agreement is reached, the Selling Participant must issue a new Proposed Sale Notice including the agreed cash equivalent. The period of 60 days referred to in clause 12.5(h) will be deemed to commence on the date that the Selling Participant issues a fresh Proposed Sale Notice and the original notification to the Continuing Participants will be deemed never to have been made. If within 14 days after their first meeting, the Selling Participant and the Continuing Participants have not reached agreement on the amount of the cash equivalent of the non-cash consideration, the matter will be referred to an Expert in accordance with clause 17 to determine whether or not the Selling Participant’s calculation of the cash equivalent was fair and reasonable and, if not, to determine the Expert’s calculation of the amount of the cash equivalent;
(f)
if the Expert determines that the Selling Participant’s calculation of the cash equivalent was fair and reasonable:
(i)
the period of 60 days referred to in clause 12.5(h) will be deemed to have commenced on the date the Proposed Sale Notice was given provided that if the period of 60 days has expired or would expire prior to 14 days after the date upon which the Expert notifies the Participants of his determination, the 60 day period will be extended to the date which is 14 days after the date upon which the Expert notifies the Participants of the Expert’s determination; and
(ii)
the Expert’s costs will be borne by the Continuing Participant who objected to the Selling Participant’s calculation of the cash equivalent;
(g)
if the Expert determines that the Selling Participant’s calculation of the cash equivalent was not fair and reasonable:
(i)
the Selling Participant must issue a fresh Proposed Sale Notice to the Continuing Participants in accordance with the requirements of clause 12.5(a) including the cash equivalent as determined by the Expert and the original Proposed Sale Notice will be deemed never to have been made; and
(ii)
the Expert’s costs will be borne by the Selling Participant;

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(h)
the Continuing Participants will have the right to accept the offer set out in the Proposed Sale Notice at any time within a period of 60 days from the date the Proposed Sale Notice is given (subject to any extension under clause 12.5(f)), and such offer must remain open for that period;
(i)
if one or more (but not all) of the Continuing Participants accept the offer within such 60 day period, the Selling Participant must notify the accepting Continuing Participant or Continuing Participants of details of the unaccepted portion of the Sale Interest and such Continuing Participant or Continuing Participants will have the right within a period of 60 days after the Selling Participant’s notice is given to accept the unaccepted part of the Sale Interest in proportion to their respective Joint Venture Interests (or as they may otherwise agree) at the same price and on the same terms and conditions;
(j)
if:
(i)
the whole of the Sale Interest is not accepted by one or more of the Continuing Participants; or
(ii)
the whole of the Sale Interest is accepted by one or more of the Continuing Participants but the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants is terminated before completion for reasons other than for a default on the part of the Selling Participant,
then the Selling Participant may complete the sale of the Sale Interest to the Proposed Buyer in accordance with the terms and conditions of the proposed sale as set out in the Proposed Sale Notice (or on other terms no more favourable to the Proposed Buyer than those terms and conditions), within a period of 60 days (which period shall be extended until the 5th day following receipt of all Transfer Approvals (which must be sought with all reasonable dispatch), to the extent not obtained during the initial 60 day period, provided that the initial period can only be extended up to a maximum of 12 months) after:
(iii)
in the circumstances outlined in clause 12.5(j)(i), the end of either the 60 day period referred to in clause 12.5(h) or the 60 day period referred to in clause 12.5(i) as the case may be; and
(iv)
in the circumstances outlined in clause 12.5(j)(ii), the date of termination of the contract or contracts for transfer of the Sale Interest to the accepting Continuing Participant or Continuing Participants;
(k)
if the whole of the Sale Interest is accepted by one or more of the Continuing Participants, then the Selling Participant will transfer the Sale Interest to those Continuing Participants in accordance with the terms and conditions of the resulting contracts with those Continuing Participants. For the avoidance of doubt, the transfer of the Sale Interest to those Continuing Participants is not subject to any further rights of last refusal under this clause 12.5; and
(l)
for the avoidance of doubt, an offer made under clause 12.5(b) must relate only to the Sale Interest and must not include or relate to any other assets.
12.6
Requirements of offer to Continuing Participants
(a)
An offer to sell the Sale Interest to the Continuing Participants under clause 12.5(b) must:

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(i)
contain a condition or conditions to the effect that the sale is conditional upon the Continuing Participants who accept the offer obtaining all Transfer Approvals either unconditionally or on conditions acceptable to such Continuing Participants (acting reasonably); and
(ii)
provide for a date for the satisfaction of any conditions precedent, and a date for completion of the sale, which would result in any Continuing Participants who accept the offer having a period of time for satisfaction of conditions precedent (as may have been extended in clause 12.5(j)) and for completion not less than the corresponding periods of time that the Proposed Buyer would have had under the contract signed by it,
and may contain a condition to the effect that if two or more Continuing Participants accept the offer made to them under clause 12.5(b), the sale of the relevant portions of the Sale Interest to each such Continuing Participant will be conditional upon the contemporaneous completion of each such sale occurring.
(b)
For the purposes of the offer to sell the Sale Interest to the Continuing Participants under clause 12.5(b):
(i)
the requirement for a cash consideration does not preclude the consideration for the sale of the Sale Interest consisting partly of cash and partly of other valuable promises (e.g. a royalty to the extent agreed under clause 12.5) that have been offered by the Proposed Buyer, provided that the Continuing Participants are objectively capable of giving and fulfilling those same promises and are not inherently disadvantaged (when compared to the Proposed Buyer) by the inclusion of those promises as part of the consideration;
(ii)
the consideration for the sale of the Sale Interest will be a cash consideration even though:
(A)
payment of the purchase price may occur in two or more tranches;
(B)
some or all of the purchase price may be paid after the date of transfer of the Sale Interest to the buyer;
(C)
the payment of some or all of the purchase price may be subject to a contingency (provided that the contingency is not such that it is inherently more likely to be satisfied where the Continuing Participants are the buyer of the Sale Interest than where the Proposed Buyer is the buyer of the Sale Interest); and
(D)
the amount of the purchase price, or some component of it, is not fixed and ascertainable at the date of the offer to sell the Sale Interest to the Continuing Participants (provided that the offer clearly sets out the basis upon which the purchase price, or the relevant component of it, is to be calculated, and the basis of calculation is not inherently likely to result in the Continuing Participants paying a higher price for the Sale Interest than the Proposed Buyer would pay if it were the buyer).
12.7
Charge of Participant’s Joint Venture Interest
(a)
A Participant (Chargor) may create a Security Interest upon all or part of its Joint Venture Interest in favour of any person (Chargee) if the Chargee has entered into a deed (Chargee's Priority Deed) with the other Participants and the Manager, in a form acceptable to the other Participants and the Manager acting reasonably,

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under which the Chargee agrees that this agreement, the Deed of Cross Security, all other Joint Venture Documents and the constituent documents of the Manager will have priority over the Chargee’s Security Interest and any enforcement of that Security Interest will be subject to compliance with the provisions of this agreement, the Deed of Cross Security, all other Joint Venture Documents and the constituent documents of the Manager.
(b)
The Participants acknowledge that the Chargee’s Priority Deed will also contain provisions under which the Chargee is entitled to receive prior notice of any default by the Chargor or other circumstances that may result in enforcement of remedies under this agreement or the Deed of Cross Security against the Chargor and to take action to step-in or take other measures to avoid the exercise of such remedies. The Participants will negotiate such provisions reasonably and in good faith and will not unreasonably withhold their agreement to provisions proposed by the Chargee which are consistent with normal finance practice.
12.8
Notice of intention to create Security Interest
Any Participant proposing the creation of any Security Interest (other than a Permitted Security Interest) must give prior written notice of its intention to create such Security Interest to the other Participants, together with a copy of the proposed instrument creating such Security Interest and the name and address of the proposed Chargee.
12.9
Sale of Joint Venture Interest by Chargee
(a)
A Chargee of a Participant's Joint Venture Interest may, without the consent of any Participant, in the exercise of any power of sale or the enforcement of any other rights conferred by law or by the instrument creating such Security Interest, upon the happening of any event of default specified in the Security Interest, sell (but not otherwise dispose of) the whole or part of the Joint Venture Interest of such Participant (Defaulting Participant).
(b)
Any proposed sale (whether by private treaty or public auction) by a Chargee of the whole or part of a Defaulting Participant’s Joint Venture Interest will be subject to the rights of last refusal of the other Participants under clauses 12.3, 12.5 and 12.6 and the Chargee’s Priority Deed must acknowledge this.
12.10
Set-off
(a)
A Non-Defaulting Participant may, in connection with its purchase of the Joint Venture Interest or part of the Joint Venture Interest of a Defaulting Participant under this clause 12, credit against the purchase price payable by such Participant the amount of any debt due and payable to such Participant by the Defaulting Participant under clause 13.5.
(b)
Except to the extent of such credit, the Chargee must pay to the Manager (for the account of the other Participants) from the proceeds of such sale, all amounts due and payable under any of the Joint Venture Documents by the Defaulting Participant, or in the event such amounts have been paid on behalf of the Defaulting Participant by any other Participant, will reimburse such other Participant the amounts so paid together with interest as provided in clause 13.5.
12.11
Assumption of Joint Venture obligations by Transferee
Any sale, transfer or other disposition of the whole or any part of the Joint Venture Interest by a Participant under this clause 12 will be effective only upon:

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(a)
the execution and delivery by the transferee and the other Participants of a deed of assignment and assumption in the form provided in Schedule 6:
(i)
evidencing the agreement of such transferee (to the extent of the Joint Venture Interest being transferred):
(A)
to become a Participant, or if already a Participant, to increase its Joint Venture Interest;
(B)
to be bound by the provisions of the Joint Venture Documents; and
(C)
to assume all of the liabilities and to perform all of the obligations and duties under the Joint Venture Documents of the Participant whose Joint Venture Interest, or part of whose Joint Venture Interest, is to be sold, transferred or disposed of to the extent of the Joint Venture Interest being sold, transferred or disposed of; and
(ii)
evidencing the agreement of the other Participants that such transferee (to the extent of the Joint Venture Interest being transferred) will be entitled to all of the rights and benefits of a Participant under the Joint Venture Documents; and
(b)
the execution and delivery by the transferee of a deed of charge in, or substantially in, the form of the Deed of Cross Security and an instrument of mortgage in, or substantially in, the form of the Kemerton Mortgages.
12.12
Change in Control
(a)
If there is a Change in Control of a Participant or of a Holding Company of a Participant (except when the Participant or Holding Company the subject of the Change in Control is listed on a stock exchange, or in the circumstances described in clause 12.12(b)), then unless the other Participants have consented in writing to such Change in Control, the relevant Participant (Changed Participant) must immediately notify the other Participants of the Change in Control.
(b)
For the purposes of this clause 12.2, no Change in Control of a Participant or of a Holding Company of a Participant will be deemed to have occurred in circumstances where:
(i)
if the Participant is WLPL (or any Transferee Subsidiary under clause 12.2), MRL has affected a sale of all or substantially all of MRL's lithium business which, as at the Effective Date, includes MRL's and its Affiliates' direct and indirect legal and beneficial ownership interest of:
(A)
the Participant's Joint Venture Interest; and
(B)
its share of the Mount Marion Lithium Project; and
(ii)
if the Participant is AWPL (or any Transferee Subsidiary under clause 12.2), Albemarle has affected a sale of all or substantially all of its global lithium business as described in its annual corporate filings from time to time.
For the avoidance of doubt, this clause 12.12(b) will only apply for so long as Albemarle and MRL are Ultimate Holding Companies of AWPL and WLPL respectively, (or of any of their Transferee Subsidiaries of under clause 12.2).

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(c)
Any other Participant may, within ten (10) Business Days after receiving the notice under clause 12.12(a), give a notice to the Changed Participant requiring that the Changed Participant must determine the value of its Joint Venture Interest (the Offered Interest). That value will be the value agreed between the parties using reasonable endeavours and acting in good faith to agree the value within 20 days from the date of the notice under clause 12.12(a). If the parties are unable to agree upon the value of the Offered Interest within 30 days from the date of the notice under clause 12.12(a), then the parties must endeavour to agree upon the appointment of two Valuers. If the parties are unable to agree upon the appointment of the Valuers within 40 days from the date of the notice under clause 12.12(a), then the Valuers will be two (2) suitably qualified and experienced persons nominated by the President (or acting President) for the time being of the Minerals Council of Australia or their nominee at the request of any other Participant. The following provisions apply where the value of the Offered Interest is required to be determined by the Valuers:
(i)
the Valuers must be engaged on terms which require the Valuers to use their best endeavours to make independently a determination within 30 days after their appointment, or such other timeframes as the parties may agree;
(ii)
each Valuer will determine the value of the Offered Interest, on the following basis:
(A)
the price that would have been paid by a knowledgeable and willing (but not anxious) buyer to a knowledgeable and willing (but not anxious) seller dealing at arm's length;
(B)
any Rehabilitation Obligations and Mine Closure Obligations relating to the Offered Interest are to be taken into consideration;
(C)
the Offered Interest is to be valued on a stand-alone basis, and without taking into account any element of control that the other Participants may obtain as a result of acquiring all or part of the Changed Participant's Joint Venture Interest in addition to the other Participant's existing Joint Venture Interest;
(D)
the valuation is to be determined independently and generally in accordance with the VALMIN Code of the Australasian Institute of Mining and Metallurgy; and
(E)
otherwise the valuation methodologies to be applied are to be determined by the Valuer in its own discretion, taking into account usual and prudent industry practices;
(iii)
the value of the Offered Interest will be deemed to be the average of the two Valuer's determinations;
(iv)
in making the determination, each Valuer will be deemed to be acting as an expert and not as an arbitrator, and the laws relating to commercial arbitration will not apply to either Valuer, the Valuer's determination or the means by which each Valuer makes the determination;
(v)
each Participant will be entitled to submit such evidence to each Valuer as the Valuer may reasonably allow or require, and will provide all information, written or oral, which the Valuer may reasonably request, provided that:

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(A)
all oral evidence must be presented in the presence of the other parties; and
(B)
copies of all written evidence must be given to all other parties;
(vi)
each Valuer may consult such legal, technical and financial experts as the Valuer, in his or her absolute discretion, thinks fit;
(vii)
the costs of the Valuers, and of any legal, technical and financial experts consulted by the Valuers, will be borne by the Changed Participant; and
(viii)
the determination of the Valuer will be final and binding on the parties without appeal so far as the law allows and except in the case of manifest error.
(d)
Once the value of the Offered Interest has been agreed or determined as contemplated by clause 12.12(b), the Changed Participant will within 5 Business Days notify the other Participants and will be deemed to have offered to assign the Offered Interest to such of the other Participants who are not then in default of payment of any Called Sums, and with respect to which an Event of Default is not then in existence (Other Participants), in proportion to their respective Joint Venture Interests, at a price equal to the value of the Offered Interest. The Other Participants will be entitled to accept that offer 60 days of the making of the offer.
(e)
If one or more (but not all) of the Continuing Participants accept the offer within such 60 day period, the Changed Participant must notify the accepting Continuing Participant or Continuing Participants of details of the unaccepted portion of the Offered Interest and such Continuing Participant or Continuing Participants will have the right within a period of 60 days after the Changed Participant’s notice is given to accept the unaccepted part of the Offered Interest in proportion to their respective Joint Venture Interests (or as they may otherwise agree) at the same price.
(f)
If the whole of the Offered Interest is accepted by one or more of the Continuing Participants (Accepting Participants), then the Changed Participant and the Accepting Participants will be deemed to have entered into a contract for the sale to the Accepting Participants (in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests) of the Changed Participant’s Joint Venture Interest upon the following terms and conditions:
(i)
The liability of the Accepting Participants (including obligations to pay money) will be several in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests.
(ii)
The sale will be conditional upon the parties obtaining all Transfer Approvals, which may include, without limitation:
(A)
Ministerial consents required under the Mining Act for the assignment of the Changed Participant's Joint Venture Interest in the Tenements; and
(B)
approval for the sale from the Foreign Investment Review Board (if applicable).
(iii)
The parties must execute all documents and do all other things reasonably necessary to apply for and obtain the Transfer Approvals as expeditiously as possible.

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(iv)
If the Transfer Approvals:
(A)
have not all been obtained within 90 days after the date of expiry of the 60 day period referred to in clause 12.12(d), the Accepting Participants may elect to terminate the contract for the sale of the Changed Participant's Joint Venture Interest;
(B)
have all been obtained or the Accepting Participants have not elected to terminate the contract for the sale of the Changed Participant's Joint Venture Interest under clause 12.12(f)(iv)(A), then completion of the sale of the Changed Participant's Joint Venture Interest will take place at the place in Western Australia nominated by the Accepting Participants by notice in writing to the Changed Participant and on the date which is 30 days after the date upon which the last of the necessary Approvals was obtained, or such earlier date agreed by the Accepting Participants, provided that if all Transfer Approvals have not been obtained within 12 months of the offer described in clause 12.12(d), this clause 12.12 shall cease to apply in respect of that Change in Control event;
(C)
have all been obtained by some but not all Accepting Participants within 90 days after the date of expiry of the 60 day period referred to in clause 12.12(d), then:
(1)
those Accepting Participants who have not obtained all necessary Approvals may elect to withdraw from the contract for the sale of the Changed Participant's Joint Venture Interest; and
(2)
if, within a further 14 days after the end of the 90 day period (or such longer period agreed by the Accepting Participants), any remaining Accepting Participants who have obtained all Transfer Approvals (within the 12 month limitation period described in clause 12.12(f)(iv)(B)) agree to purchase the Changed Participant's Joint Venture Interest, either in the proportions that those Accepting Participants' respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests, or in such other proportions that those remaining Accepting Participants otherwise agree, then:
(AA)
the contract for the sale of the Changed Participant's Joint Venture Interest will be deemed to be between the Changed Participant and those remaining Accepting Participants, and in such proportions as those Accepting Participants agree; and
(BB)
completion of the sale of the Changed Participant's Joint Venture Interest will take place at the place in Western Australia nominated by the relevant Accepting Participants by notice in writing to the Changed Participant on the date which is 14 days after the end of the 14 day period specified in clause 12.12(f)(iv)(C)(2).
(v)
At completion:
(A)
the Changed Participant must transfer its Joint Venture Interest to the relevant Accepting Participants free from all Security Interests (subject to the Permitted Security Interests which apply to the Joint Venture

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Interest). The relevant Accepting Participants will be entitled to a transfer of the Joint Venture Interest of the Changed Participant in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests or in such other proportions as the relevant Accepting Participants agree;
(B)
the Changed Participant must execute and deliver all instruments of sale, assignment, conveyance and transfer and all other documents, and take such other action, as the relevant Accepting Participants may reasonably request to effect such transfer; and
(C)
in return for the transfer of the Changed Participant's Joint Venture Interest, the relevant Accepting Participants must pay to the Changed Participant, or as the Changed Participant's solicitor may direct, the amount that is equal to the value of the Changed Participant's Joint Venture Interest (as agreed or determined in accordance with clause 12.12(b)).
(g)
For the avoidance of doubt, a Change in Control of a Participant or its Holding Company does not constitute a transfer or proposed transfer for the purposes of clause 12.3.
13
Defaults and remedies
13.1
Event of Default
Any one or more of the following events with respect to any Participant is an Event of Default:
(a)
any failure by the Participant to pay a Called Sum (under clauses 8.3 or 8.5) in accordance with clause 8.4 within five (5) Business Days after notice has been given by the Manager or a Participant under clause 13.2;
(b)
subject to clause 19.15, an Insolvency Event occurs in relation to the Participant;
(c)
any default by the Participant in the performance of any material obligation under a Joint Venture Document (other than one referred to in clauses 13.1(a) or 13.1(b) above):
(i)
which is capable of remedy, and which default is not remedied within 30 Business Days after receipt of written notice from any other Participant or the Manager given under clause 13.2;
(ii)
but if the default is not reasonably capable of being remedied within 30 Business Days after receipt of written notice from any other Participant or the Manager given under clause 13.2, the Participant fails to commence or has not otherwise taken bona fide steps to remedy the relevant default within 30 Business Days of receiving such notice and does not remedy that default within 50 Business Days after receipt of written notice from any other Participant or the Manager given under clause 13.2 (or such longer period agreed by the Management Committee, where any Defaulting Participant or its Affiliates does not vote); or
(d)
any default by the Participant in the performance of any material obligation under a Joint Venture Document which is not capable of remedy (other than one referred to

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in clauses 13.1(a) or 13.1(b) above), where the Defaulting Participant has not paid monetary compensation to the Non-Defaulting Participants within 30 Business Days of receipt of notification of the amount of compensation payable as determined under clause 13.2(d).
13.2
Notices of default
(a)
If any Participant:
(i)
fails to pay when due any amount due by it referred to in clause 13.1(a); or
(ii)
defaults in the performance of any of its material obligations under any of the Joint Venture Documents,
the Manager must, as soon as practicable after it becomes aware of that default, notify the Defaulting Participant and each of the other Participants (Non-Defaulting Participants) of that default.
(b)
Failure by the Manager to give such notice will not release the Defaulting Participant from any of its obligations under the Joint Venture Documents.
(c)
If a Participant becomes aware that another Participant has defaulted in the performance of any of its obligations under the Joint Venture Documents but the Manager has not given a notice of default to the Defaulting Participant under clause 13.2(a), the Participant may notify the Defaulting Participant, the Manager and each of the other Non-Defaulting Participants of that default.
(d)
If a default of a material obligation is not capable of being remedied, the Participants must agree in writing the amount of adequate monetary compensation to be paid by the Defaulting Participant to compensate for that default. If the Participants have not reached agreement within 14 days after the date on which notice of default is given, that amount must be referred to an Expert for determination in accordance with clause 17, who must make such determination within 30 days of his or her appointment. On agreement or determination of the amount of adequate monetary compensation under this clause 13.2(d), that amount, and any interest and costs payable or reimbursable under this agreement, becomes money due and payable under this agreement within the 30 Business Day period referred to in clause 13.1(d).
13.3
Payment of interest upon default
If a Participant defaults in paying the whole or part of any Called Sum, that Defaulting Participant must pay to the Manager, for the account of the Non-Defaulting Participants, interest on such unpaid amount at the Interest Rate calculated on daily balances, and capitalised monthly, from the due date for payment to the date of actual payment.
13.4
Rights following an Event of Default
Subject to clause 19.15, if an Event of Default occurs, then until such Event of Default has been rectified (and the Defaulting Participant has paid all amounts due but unpaid by it in relation to the default under any Joint Venture Document):
(a)
the Representatives of the Defaulting Participant:
(i)
will not have the right to vote at meetings of the Management Committee;
(ii)
will not be counted for the purposes of determining the relevant quorum; and

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(iii)
if Chairperson of the Management Committee, will cease to be Chairperson and the next entitled Non-Defaulting Participant may appoint the Chairperson;
(b)
if the Event of Default is a circumstance described in clause 13.1(a), the Defaulting Participant will not have a right to participate in the management of the Joint Venture or to participate in any determinations under this agreement and the Representatives appointed by the Defaulting Participant will not have the right to vote at Management Committee meetings, but will be entitled to attend and otherwise participate in those meetings;
(c)
the Defaulting Participant will have no further right to take and dispose of its share of Product and the Manager may take and dispose of what would otherwise be the Defaulting Participant’s share of Product on such terms as the Manager considers reasonable and must credit the net proceeds of sale after deducting all costs incurred in effecting the sale, towards the moneys owed by the Defaulting Participant;
(d)
the Defaulting Participant will continue to have the right to receive the reports and information from the Manager under clause 9;
(e)
the Non-Defaulting Participants and the Manager may exercise each and every power and remedy provided in the Deed of Cross Security and the Kemerton Mortgages (as applicable) executed by the Defaulting Participant and use and apply any moneys realised from such exercise in accordance with the Deed of Cross Security and the Kemerton Mortgages; and
(f)
the Non-Defaulting Participants may acquire the Joint Venture Interest of the Defaulting Participant subject to and in accordance with clause 13.7.
13.5
Payment of Unpaid Called Sum
(a)
Subject to clause 13.5(b), if requested by written notice from the Manager, the Non-Defaulting Participants will, in the proportion that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests, pay on behalf of the Defaulting Participant all or any part nominated by the Manager of the amounts owing by such Defaulting Participant (including under clause 13.3), such payment to be made by the Non-Defaulting Participants within such time as the Manager may reasonably determine.
(b)
The Manager will exercise its rights under the Deed of Cross Security and the Kemerton Mortgages (as contemplated in clause 13.4(e)), and take and sell what would otherwise be the Defaulting Participant’s Joint Venture Interest share of Product under clause 13.4(c), in priority to calling upon the Non-Defaulting Participants to pay any amounts owing by the Defaulting Participant (as contemplated in clause 13.5(a)), if the Manager is of the opinion that exercising its rights under the Deed of Cross Security and the Kemerton Mortgages or against the share of Product will result in it obtaining payment of the relevant outstanding amounts, within a timeframe that will enable Joint Venture Operations to continue without disruption.
(c)
If any Non-Defaulting Participant pays any amount on behalf of a Defaulting Participant under clause 13.5(a), the amount so paid will constitute a debt due and payable by the Defaulting Participant to such Non-Defaulting Participant, and will bear interest at the Interest Rate calculated on daily balances, and capitalised monthly, from the date such debt became due to the Non-Defaulting Participant until the date such debt is paid by the Defaulting Participant.

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13.6
Delivery of Cross Security
(a)
It is acknowledged that, for the purposes of securing the performance of their obligations under the Joint Venture Documents, each Participant has executed and delivered the Deed of Cross Security, creating a charge upon the Participant's Joint Venture Interest and its shares in the Manager in favour of the other Participants and the Manager and creating a charge upon the Participant's Joint Venture Interest in favour of the Manager. The Participants acknowledge that the creation of a charge over each Participant's interest in the Kemerton Sublease must be in registrable form and the Participants have accordingly executed and delivered the Kemerton Mortgages.
(b)
Each Participant (and each Transferee of a Joint Venture Interest which has executed a similar deed of charge in accordance with clause 12.11(b)) will as soon as practicable after the creation of the Deed of Cross Security and the Kemerton Mortgages, promptly register the Deed of Cross Security and the Kemerton Mortgages, or will file or record such other notices or documents relating to the Deed of Cross Security and the Kemerton Mortgages, in each jurisdiction where such registration, filing or recording may be required to perfect the security created by the Deed of Cross Security and the Kemerton Mortgages and to protect further the rights of the Manager and other Participants under the Deed of Cross Security and the Kemerton Mortgages.
13.7
Option to acquire Joint Venture Interest of Defaulting Participant
(a)
Upon the occurrence of an Event of Default, the Manager (or failing the Manager doing so, any Participant) will notify the Participants of the Event of Default (EOD Notice).
(b)
Upon the occurrence of an Event of Default, and until such Event of Default has been rectified, each Non-Defaulting Participant will have the option to acquire the whole of the Joint Venture Interest of the Defaulting Participant.
(c)
Such option may be exercised by notice in writing (Exercise Notice) given to the Defaulting Participant at any time during the 60 day period immediately following the later of the occurrence of the Event of Default and the date that the Manager (or a Participant) gives the Participants an EOD Notice (Option Exercise Period), provided the Event of Default giving rise to such option remains unremedied as at the date of the Exercise Notice.
(d)
The Non-Defaulting Participant must give a copy of the Exercise Notice to:
(i)
the Manager; and
(ii)
the other Non-Defaulting Participants,
at the same time as giving the Exercise Notice to the Defaulting Participant.
(e)
If:
(i)
one or more Non-Defaulting Participants give an Exercise Notice within the Option Exercise Period; and
(ii)
at least the first of such Exercise Notices was given at a point in time when the Event of Default which gave rise to the option remained unremedied,

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then, upon expiry of the Option Exercise Period, the value of the Joint Venture Interest of the Defaulting Participant must be determined in accordance with clause 13.8.
(f)
Within 14 days after the value of the Joint Venture Interest of the Defaulting Participant has been determined in accordance with clause 13.8, any Non-Defaulting Participant who had given an Exercise Notice may, by notice in writing (Notice to Proceed) given to the Defaulting Participant (with copies to the Manager and the other Non-Defaulting Participants) advise that the Non-Defaulting Participant wishes to proceed with the acquisition of the Joint Venture Interest of the Defaulting Participant.
(g)
If one or more Non-Defaulting Participants (Acquiring Participants) give a Notice to Proceed, the Defaulting Participant and the Acquiring Participants will be deemed to have entered into a contract for the sale to the Acquiring Participants (in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests) of the Defaulting Participant’s Joint Venture Interest upon the following terms and conditions:
(i)
The liability of the Acquiring Participants (including obligations to pay money) will be several in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests.
(ii)
The sale will be conditional upon the parties obtaining all Transfer Approvals, which may include, without limitation:
(A)
Ministerial consents required under the Mining Act for the assignment of a Defaulting Participant’s Joint Venture Interest in the Tenements; and
(B)
approval for the sale from the Foreign Investment Review Board (if applicable).
(iii)
The parties must execute all documents and do all other things reasonably necessary to apply for and obtain the necessary Transfer Approvals as expeditiously as possible.
(iv)
If the necessary Transfer Approvals:
(A)
have not all been obtained within 90 days after the date of expiry of the 14 day period referred to in clause 13.7(f), the Acquiring Participants may elect to terminate the contract for the sale of the Defaulting Participant’s Joint Venture Interest;
(B)
have all been obtained or the Acquiring Participants have not elected to terminate the contract for the sale of the Defaulting Participant’s Joint Venture Interest under clause 13.7(g)(iv)(A), then completion of the sale of the Defaulting Participant’s Joint Venture Interest will take place at the place in Western Australia nominated by the Acquiring Participants by notice in writing to the Defaulting Participant and on the date which is 30 days after the date upon which the last of the necessary Transfer Approvals was obtained, or such earlier date agreed by the Acquiring Participants;
(C)
have all been obtained by some but not all Acquiring Participants within 90 days after the date of expiry of the 14 day period referred to in clause 13.7(f), then:

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(1)
those Acquiring Participants who have not obtained all necessary Transfer Approvals may elect to withdraw from the contract for the sale of the Defaulting Participant’s Joint Venture Interest; and
(2)
if, within a further 14 days after the end of the 90 day period (or such longer period agreed by the Acquiring Participants), any remaining Acquiring Participants who have obtained all necessary Transfer Approvals agree to purchase the Defaulting Participant’s Joint Venture Interest, either in the proportions that those Acquiring Participants’ respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests, or in such other proportions that those remaining Acquiring Participants otherwise agree, then:
(AA)
the contract for the sale of the Defaulting Participant’s Joint Venture Interest will be deemed to be between the Defaulting Participant and those remaining Acquiring Participants, and in such proportions as those Acquiring Participants agree; and
(BB)
completion of the sale of the Defaulting Participant’s Joint Venture Interest will take place at the place in Western Australia nominated by the relevant Acquiring Participants by notice in writing to the Defaulting Participant on the date which is 14 days after the end of the 14 day period specified in clause 13.7(g)(iv)(C)(2).
(v)
At completion:
(A)
the Defaulting Participant must transfer its Joint Venture Interest to the relevant Acquiring Participants free from all Security Interests (subject to the Permitted Security Interests which apply to the Joint Venture Interest). The relevant Acquiring Participants will be entitled to a transfer of the Joint Venture Interest of the Defaulting Participant in the proportions that their respective Joint Venture Interests bear to the aggregate of their Joint Venture Interests or in such other proportions as the relevant Acquiring Participants agree;
(B)
the Defaulting Participant must execute and deliver all instruments of sale, assignment, conveyance and transfer and all other documents, and take such other action, as the relevant Acquiring Participants may reasonably request to effect such transfer;
(C)
in return for the transfer of the Defaulting Participant’s Joint Venture Interest, the relevant Acquiring Participants must pay to the Defaulting Participant, or as the Defaulting Participant’s solicitor may direct, the amount that is equal to 95% of the value of the Defaulting Participant’s Joint Venture Interest (as determined in accordance with clause 13.8) less the following amounts:
(1)
all amounts due but unpaid under any of the Joint Venture Documents by the Defaulting Participant, which amounts must, immediately following completion, be paid by the relevant Acquiring Participants on behalf of the Defaulting Participant;
(2)
the amount of the debt owed by the Defaulting Participant to the acquiring Participants under clause 13.5(c); and

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(3)
the amount (as reasonably determined by the Non-Defaulting Participants) of all other outstanding liabilities and obligations of the Defaulting Participant under any of the Joint Venture Documents which are to be assumed by the relevant Acquiring Participants; and
(4)
all amounts of any stamp and other duties, levies, imposts or other taxes, together with any interest or penalty thereon, imposed by the State or the Commonwealth or any taxing authority, paid or which may thereafter be payable by the relevant Acquiring Participants in connection with the exercise of the option and the transfers effected consequent upon its exercise; and
(D)
the amount payable to the Defaulting Participant under clause 13.7(g)(v)(C) must be paid by electronic transfer of clear and available funds into a bank account in Australia nominated by the Defaulting Participant for this purpose.
(vi)
To secure the rights of the Acquiring Participants under this clause 13.7, the Defaulting Participant hereby irrevocably appoints each relevant Acquiring Participant, the Manager and their respective directors as the several attorneys of the Defaulting Participant with power to sign all documents and do all other things in the name of the Defaulting Participant which are reasonably necessary to:
(A)
apply for and obtain the necessary Transfer Approvals; and
(B)
effect the transfer of the Defaulting Participant’s Joint Venture Interest as contemplated in clauses 13.7(g)(v)(A) and 13.7(g)(v)(B).
(vii)
The Defaulting Participant and the relevant Acquiring Participants must sign any deed of covenant and deed of charge that is required under clause 12.11(b).
13.8
Value of Joint Venture Interest of Defaulting Participant
The following provisions apply where, under clause 13.7, the value of the Joint Venture Interest of a Defaulting Participant is required to be determined:
(a)
The Defaulting Participant and the Non-Defaulting Participants who have given an Exercise Notice must endeavour to agree the value of the Joint Venture Interest of the Defaulting Participant.
(b)
If the parties are unable to agree upon the value of the Joint Venture Interest of the Defaulting Participant within 14 days after the expiry of the Option Exercise Period, the parties must endeavour to agree upon the appointment of two Valuers.
(c)
If the parties are unable to agree upon the appointment of the Valuers within 14 days after the expiry of the Option Exercise Period, then the Valuers will be two (2) suitably qualified and experienced persons nominated by the President (or acting President) for the time being of the Minerals Council of Australia or their nominee at the request of Non-Defaulting Participants who have given an Exercise Notice.
(d)
The Valuers must be engaged on terms which require the Valuers to use their best endeavours to make independently a determination within 30 days after their

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appointment, or such other timeframes as the Defaulting Participant and Non-Defaulting Participants who have given an Exercise Notice may agree.
(e)
Each Valuer will determine the value of the Joint Venture Interest of the Defaulting Participant, as at the date of the first Exercise Notice given, on the following basis:
(i)
the price that would have been paid by a knowledgeable and willing (but not anxious) buyer to a knowledgeable and willing (but not anxious) seller dealing at arm’s length;
(ii)
any Rehabilitation Obligations and Mine Closure Obligations relating to the Joint Venture Interest are to be taken into consideration;
(iii)
the Joint Venture Interest is to be valued on a stand-alone basis, and without taking into account any element of control that a Non-Defaulting Participant may obtain as a result of acquiring all or part of the Defaulting Participant’s Joint Venture Interest in addition to the Non-Defaulting Participant’s existing Joint Venture Interest;
(iv)
the valuation is to be determined independently and generally in accordance with the VALMIN Code of the Australasian Institute of Mining and Metallurgy; and
(v)
otherwise the valuation methodologies to be applied are to be determined by the Valuer in its own discretion, taking into account usual and prudent industry practices.
(f)
The value of the Joint Venture Interest of the Defaulting Participant will be deemed to be the average of the two Valuer’s determinations.
(g)
In making the determination, each Valuer will be deemed to be acting as an expert and not as an arbitrator, and the laws relating to commercial arbitration will not apply to either Valuer, the Valuer’s determination or the means by which each Valuer makes the determination.
(h)
Each Participant will be entitled to submit such evidence to each Valuer as the Valuer may reasonably allow or require, and will provide all information, written or oral, which the Valuer may reasonably request, provided that:
(i)
all oral evidence must be presented in the presence of the other parties; and
(ii)
copies of all written evidence must be given to all other parties.
(i)
Each Valuer may consult such legal, technical and financial experts as the Valuer, in his or her absolute discretion, thinks fit.
(j)
The costs of the Valuers, and of any legal, technical and financial experts consulted by the Valuers, will be borne by the Defaulting Participant.
(k)
The determination of the Valuer will be final and binding on the parties without appeal so far as the law allows and except in the case of manifest error.
13.9
Remedies not exclusive
(a)
Each and every power and remedy given to the Non-Defaulting Participants in this clause 13 are in addition to every other power and remedy existing at law or in

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equity, and each and every power and remedy may be exercised from time to time and simultaneously and as often and in such order as may be deemed expedient.
(b)
All such powers and remedies will be cumulative, and the exercise of one will not be deemed a waiver of the right to exercise any other or others.
(c)
No delay or omission in the exercise of any such power or remedy will impair any such power or remedy or will be construed to be a waiver of any default.
14
Force Majeure
(a)
If a party (Affected Party) is prevented or hindered by Force Majeure from fully or partly complying with any obligation (except for the payment of money) under this agreement, that obligation is suspended for the duration of, and to the extent affected by, such Force Majeure.
(b)
If the Affected Party wishes to claim the benefit of this clause 14 it must give prompt notice of the Force Majeure occurrence to the other parties including reasonable details of:
(i)
the Force Majeure occurrence and why it constitutes Force Majeure;
(ii)
the effect of the Force Majeure occurrence on the performance of the Affected Party’s obligations; and
(iii)
the likely duration of the delay in performance of those obligations.
(c)
The Affected Party must use its best endeavours to remove or overcome the cause and/or effect of the Force Majeure provided that nothing in this clause 14 requires the Affected Party to:
(i)
settle any strike, or other labour dispute; or
(ii)
contest the validity or enforceability of any law or legally enforceable order by way of legal proceedings,
on terms not acceptable to it solely for the purpose of removing the event of Force Majeure.
(d)
If the Force Majeure event cannot be removed or overcome to an extent that allows resumption of performance within six (6) Months (or such other period as the Participants agree) from the date the notice is given under clause 14(b), the parties must consider and determine whether this agreement should be modified or terminated.
(e)
Notwithstanding the Force Majeure, the Participants must continue to pay any Called Sum called by the Manager in accordance with clauses 8.3 and 8.5 to the extent such monies are necessary to maintain the Joint Venture Assets in good condition and keep the Tenements and the Petroleum Pipelines in good standing.
15
Notices
15.1
General

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A notice, demand, certification, process or other communication relating to this agreement must be in writing in English and may be given by an agent of the sender.
15.2
How to give a communication
In addition to any other lawful means, a communication may be given by being:
(a)
personally delivered;
(b)
left at the party’s current delivery address for notices;
(c)
sent to the party’s current postal address for notices by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail;
(d)
sent by email to the party’s current email address for notices; or
(e)
sent by such other form of communication as the Participants and the Manager may from time to time agree.
15.3
Particulars for delivery
(a)
The particulars for delivery of notices are initially:
(i)
in the case of WLPL:
Delivery address:    1 Sleat Road
APPLECROSS WA 6153
Postal address:    Locked Bag 3, Canning Bridge
APPLECROSS WA 6153
Email:    cosec@mineralresources.com.au
Attention:    Company Secretary
(ii)
in the case of AWPL:
Delivery address:    4250 Congress Street, Suite 900, Charlotte, NC 28209
Postal address:    4250 Congress Street, Suite 900, Charlotte, NC 28209
Email:    legal_notices@albemarle.com
Attention:    General Counsel
(iii)
in the case of the Manager:
Delivery address:     4250 Congress Street, Suite 900, Charlotte, NC 28209
Postal address:    4250 Congress Street, Suite 900, Charlotte, NC 28209
Email:    legal_notices@marbllithium.com
Copy:    legal_notices@albemarle.com
Attention:    Company Secretary

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Copy:    General Counsel, Albemarle Corporation
(b)
Each party may change its particulars for delivery of notices by notice to each other party.
15.4
Communications by post
Subject to clause 15.7, a communication is given if posted:
(a)
within Australia to an Australian postal address, three (3) Business Days after posting; or
(b)
outside of Australia to an Australian postal address or within Australia to an address outside of Australia, ten (10) Business Days after posting.
15.5
Communications by email
(a)
Subject to clause 15.7, a communication is given if sent by email, upon the earlier of:
(i)
the time the sender receives an automated message from the intended recipient’s information system confirming delivery of the email;
(ii)
the time that the email is first opened or read by the intended recipient, or an employee or officer of the intended recipient; and
(iii)
four (4) hours after the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives, within that four (4) hour period, an automated message that the email has not been delivered.
(b)
Despite anything to the contrary in this agreement, the following communications must not be given by email:
(i)
a notice given by the Manager under clause 13.2(a) or any Participant under clause 13.2(c); and
(ii)
an EOD Notice given under clause 13.7.
15.6
Process service
Any process or other document relating to litigation, administrative or arbitral proceedings in relation to this agreement may be served by any method contemplated by this clause 15 or in accordance with any applicable law.
15.7
After hours communications
If a communication is given:
(a)
after 5.00 pm in the place of receipt; or
(b)
on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt,
it is taken to have been given at 9.00am on the next day which is not a Saturday, Sunday or bank or public holiday in that place.

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16
GST
16.1
Construction
In this clause 16:
(a)
unless there is a contrary indication, words and expressions which are not defined in this agreement but which have a defined meaning in the GST Law have the same meaning as in the GST Law;
(b)
references to GST payable and input tax credit entitlements include:
(i)
notional GST payable by, and notional input tax credit entitlements of the Commonwealth, a State or a Territory (including a government, government body, authority, agency or instrumentality of the Commonwealth, a State or a Territory); and
(ii)
GST payable by, and the input tax credit entitlements of, the representative member of a GST group of which the entity is a member.
16.2
Consideration GST exclusive
Unless otherwise expressly stated, all consideration, whether monetary or non-monetary, payable or to be provided under or in connection with this agreement is exclusive of GST (GST-Exclusive Consideration).
16.3
Payment of GST
If GST is or becomes payable on any supply made by:
(a)
a party; or
(b)
an entity that is taken under the GST Law to make the supply by reason of the capacity in which a party acts,
(Supplier) under or in connection with this agreement, the recipient of the supply, or the party providing the consideration for the supply, must pay to the Supplier an amount equal to the GST payable on the supply as calculated in accordance with the GST Law, subject to clause 16.5.
16.4
Timing of GST payment
The amount referred to in clause 16.3 must be paid in addition to and at the same time and in the same manner (without any set-off or deduction) that the GST-Exclusive Consideration for the supply is payable or to be provided.
16.5
Tax invoice
The Supplier must deliver a tax invoice or an adjustment note to the recipient of a taxable supply before the Supplier is entitled to payment of an amount under clause 16.3.
16.6
Adjustment event
If an adjustment event arises in respect of a supply made by a Supplier under or in connection with this agreement, any amount that is payable under clause 16.3 will be

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calculated or recalculated to reflect the adjustment event and a payment will be made by the recipient to the Supplier or by the Supplier to the recipient as the case requires.
16.7
Reimbursements
Notwithstanding any other provision in this agreement, where a party is required under or in connection with this agreement to pay for, reimburse or contribute to any expense, loss, liability or outgoing suffered or incurred by another party or indemnify another party in relation to such an expense, loss, liability or outgoing (Reimbursable Expense), the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of any input tax credits to which the other party (or the representative member of the GST group of which the other party is a member) is entitled in respect of the Reimbursable Expense.
16.8
Calculations based on other amounts
If an amount of consideration payable or to be provided under or in connection with this agreement is to be calculated by reference to any price, value, sales, proceeds, revenue or similar amount (Revenue), that reference will be to that Revenue determined by deducting from it an amount equal to the GST payable on the supply for which it is consideration.
16.9
No merger
This clause 16 does not merge on the completion, rescission or other termination of this agreement or on the transfer of any property supplied under this agreement.
16.10
GST joint venture
The Manager and the Participants will, in good faith, consider taking action to register the Joint Venture as a GST joint venture after the Effective Date. If the Joint Venture is registered as a GST joint venture then the parties contemplate that the Manager will be responsible for administration of any GST.
17
Expert determination
17.1
When appointed
Wherever under this agreement:
(a)
any matter is expressly to be referred to an Expert; or
(b)
the parties agree that a point of difference between them will be resolved by an Expert,
then unless specifically provided otherwise, the matter in issue will be referred to an Expert for determination and this clause 17 will apply. Unless otherwise agreed by the parties to the dispute, any Expert appointed under this agreement must be someone who is independent of the parties to the dispute, does not have an interest or duty which conflicts or may conflict with the functions as the expert and is not an employee, representative of a person that provides consultancy services on a regular basis to any party to the dispute.
17.2
Appointment

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The procedure for the appointment of an Expert will be as follows:
(a)
the party wishing the appointment to be made will give notice in writing to that effect to the other parties and give details of the matter which it proposes will be resolved by the Expert;
(b)
within ten (10) Business Days from the date of that notice, the parties will meet in an endeavour to agree upon a single Expert (who will be independent of the parties and will have qualifications and experience appropriate to the matter in dispute) to whom the matter in dispute will be referred for determination; and
(c)
if within that ten (10) Business Days the parties fail to agree upon the appointment of a single Expert then any party may request the nomination of an Expert by:
(i)
the President of the Australasian Institute of Mining and Metallurgy to appoint the Expert, if the subject matter of the dispute relates to a technical issue;
(ii)
the President of the Institute of Chartered Accountants in Australia, if the subject matter of the dispute relates to a financial issue;
(iii)
the President of the Western Australian Law Society, if the subject matter of the dispute relates to a legal issue; and
(iv)
the National Chairman of the Australian Institute of Company Directors, if the subject matter of the dispute relates to any other issue,
(collectively an Independent Body), which nominee the parties must appoint.
(d)
If an Independent Body fails to nominate an Expert within ten (10) Business Days of being requested to do so, or otherwise refuses to make such an appointment, then any party may request the nomination of an Expert by the President of the Resolution Institute of Australia, which nominee the parties must appoint.
17.3
Instructions
The Expert will be instructed to:
(a)
determine the dispute within the shortest practicable time; and
(b)
deliver a report stating his opinion with respect to the matters in dispute and setting out the reasons for the decision.
17.4
Procedure
(a)
The Expert will determine the procedures for the conduct of the process in order to resolve the dispute and must provide each party with a fair opportunity to make submissions in relation to the matter in issue.
(b)
Any process or determination of the dispute by the Expert will be made as an expert and not as an arbitrator and the determination of the Expert will be final and binding on the parties without appeal so far as the law allows and except in the case of manifest error or where a party to the matter in issue has not been provided with a fair opportunity to make submissions in relation to the matter in issue.
17.5
Costs

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Each party will bear its own costs of and incidental to any proceedings under this clause 17. The costs of the Expert will be Joint Venture Costs, except as otherwise may be provided in this agreement.
18
Dispute resolution
18.1
Dispute resolution process
Except to the extent otherwise expressly referred to Expert determination in accordance with clause 17 or otherwise expressly prescribed by this agreement in relation to particular types of dispute, the parties must deal with any dispute, controversy, claim or difference (Dispute) arising out of, connected with or relating to this agreement or any breach, termination or claimed invalidity of this agreement in accordance with the dispute resolution process set out in this clause 18.
18.2
Dispute Notice
(a)
A party claiming a Dispute (Initiating Party) must give notice (Dispute Notice) to the other party which:
(i)
identifies the subject matter of the Dispute; and
(ii)
designates a senior representative for the Dispute who will have the authority to settle the Dispute on its behalf.
(b)
The other party must then promptly designate, by notice to the Initiating Party, its senior representative for the Dispute who will have authority to settle the Dispute on its behalf.
18.3
Meeting of the parties' designated representatives
The parties’ designated representatives must meet and use all reasonable endeavours acting in good faith to resolve the Dispute, within five (5) Business Days after the receipt of the Dispute Notice.
18.4
Meeting of Senior Executives and Chief Executive Officers
(a)
If the Dispute is not resolved under clause 18.3, then within ten (10) Business Days of the Dispute Notice, a senior executive of the Ultimate Holding Company of each party to the Dispute (Disputing Parties) must meet and use all reasonable endeavours acting in good faith to resolve the Dispute.
(b)
If the Dispute is not resolved under clause 18.4(a), then within 20 Business Days of the date the Dispute Notice has been given, each chief executive officer of the Ultimate Holding Company of each Disputing Party must meet and use all reasonable endeavours acting in good faith to resolve the Dispute.
18.5
Court proceedings
A party may commence court proceedings in respect of the Dispute if:
(a)
the steps under clauses 18.3, 18.4(a) and 18.4(b) have been taken and one or other of the chief executive officers of the Ultimate Holding Companies of the Disputing Parties has stated that they consider that the Dispute will not be resolved within 40 Business Days from the date of the Dispute Notice; or

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(b)
one of the parties has attempted to follow the steps in clauses 18.3, 18.4(a) and 18.4(b) and the other party has not complied with its obligations under those clauses.
18.6
Urgent interlocutory relief
This clause 18 does not prevent a party from seeking urgent interlocutory relief from a court of competent jurisdiction where, in that party's reasonable opinion, that action is necessary to protect that party's rights.
19
General
19.1
Consents and approvals
Except as expressly provided in this agreement, a party may conditionally or unconditionally in its absolute discretion give or withhold any consent or approval under this agreement.
19.2
Duty
(a)
Except as expressly stated otherwise in this agreement (including as provided in clause 2.15), the Manager, as between the parties, is liable for and must pay all duty (including any fine, interest or penalty except where it arises from default by another party) on or relating to this agreement, any agreement executed under it or any dutiable transaction evidenced or effected by it.
(b)
If a party other than the Manager pays any duty (including any fine, interest or penalty) on or relating to this agreement, any document executed under it or any dutiable transaction evidenced or effected by it, the Manager must pay that amount to the paying party on demand.
(c)
All amounts payable by the Manager under clauses 19.2(a) and 19.2(b) will form part of Joint Venture Costs.
19.3
Legal costs
(a)
Except as expressly stated otherwise in this agreement, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this agreement.
(b)
The legal costs of the Manager in negotiating, preparing, and executing this agreement do not form part of Joint Venture Costs, however the legal costs of the Manager in performing its obligations under this agreement form part of Joint Venture Costs.
19.4
No liability for consequential losses
Except in the case of Wilful Misconduct or Gross Negligence, no party will be liable to the other parties in any circumstances for any loss of use, loss of revenue, loss of profit, loss of production, business interruption, loss of business opportunity, loss of savings, loss of use of capital or loss of good will, arising out of or in connection with this agreement, whether or not foreseeable at the Effective Date.
19.5
Entire agreement

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(a)
This agreement is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter.
(b)
Each party represents and warrants that it has not relied on any representations or warranties about the subject matter of this agreement except as expressly provided in this agreement.
19.6
Further assurances
Except as expressly provided in this agreement, each party must, at its own expense, do all things reasonably necessary to give full effect to this agreement and the matters contemplated by it.
19.7
Rights cumulative
Except as expressly stated otherwise in this agreement, the rights of a party under this agreement are cumulative and are in addition to any other rights of that party.
19.8
Severability
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this agreement is not affected.
19.9
Survival and merger
(a)
No term of this agreement merges on completion of any transaction contemplated by this agreement.
(b)
Clause 11 survives termination or expiry of this agreement together with any other term which by its nature is intended to do so.
19.10
PPS Act
(a)
Each party waives the right to receive any notice under the PPS Act (including a notice of verification statement) unless the notice is required under the PPS Act and the obligation to give it cannot be excluded.
(b)
Unless expressed to the contrary, a reference to a term which is defined in the PPS Act has the meaning it has in the PPS Act.
19.11
Variation
No variation of this agreement is effective unless made in writing and signed by each party.
19.12
Waiver
(a)
No waiver of a right or remedy under this agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.
(b)
A single or partial exercise of a right or remedy under this agreement does not prevent a further exercise of that or of any other right or remedy.

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(c)
Failure to exercise or delay in exercising a right or remedy under this agreement does not operate as a waiver or prevent further exercise of that or any other right or remedy.
19.13
Governing law
(a)
This agreement is governed by the laws of Western Australia.
(b)
Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Western Australia including, for the avoidance of doubt, the Federal Court of Australia sitting in Western Australia.
19.14
Counterparts
This agreement may be executed in any number of counterparts and signatures on behalf of a party may be on different counterparts.
19.15
Ipso Facto Stay
The provisions of this agreement are subject to any Ipso Facto Stay which may operate to prevent the enforcement of rights under this agreement. To the extent that there is any conflict between the provisions of this agreement and the Ipso Facto Stay, this agreement is to be interpreted subject to the Ipso Facto Stay.
19.16
Relationship with Shareholders' Deed
Where this agreement and the Shareholders' Deed deal with the same or similar topic differently, this agreement is to prevail.
19.17
Remote conferencing
Where this agreement calls for or requires a meeting between the Participants, their Representatives, the Manager or any of the Manager's or Participants' officers, employees, contractors or agents, such meetings may be attended by telephone, video conferencing or any other means of electronic conferencing.

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Schedule 1
Dictionary
1
Dictionary
In this agreement:
Accepting Participants has the meaning given to that term in clause 12.12(f).
Accounting Procedure means the accounting procedure set out in Schedule 5.
Acquiring Participants has the meaning given to that term in clause 13.7(g).
Adviser has the meaning given to that term in clause 6.11.
Affected Party has the meaning given to that term in clause 14(a).
Affiliate means, with respect to any corporation, another corporation which Controls, is Controlled by, or is under common Control with, such corporation.
Albemarle means Albemarle Corporation.
Albemarle Lithium means Albemarle Lithium Pty Ltd.
Approvals means any licence, consent, approval, permit, registration, accreditation, certification or other authorisation given or issued by any Government Agency or any other person which relate to the Joint Venture Operations, including those specified in the Asset Sale and Share Subscription Agreement and those specified in the Plant Services Agreement as being for the benefit of the Joint Venture.
Approved Budget means a Proposed Budget approved by the Management Committee in accordance with clause 7, as amended or updated from time to time in accordance with clause 7.
Approved Closure Plan means the Closure Plan as approved by the Department as at the Effective Date, as amended, updated or supplemented from time to time in accordance with this agreement and in compliance with applicable laws.
Asset Sale and Share Subscription Agreement means the document entitled ‘Asset Sale and Share Subscription Agreement — Wodgina Lithium Project’ between the Participants, MRL and Albemarle dated 14 December 2018, as amended by the Amendment Date dated 1 August 2019.
Assigned Tenements means the mining tenements specified in Part 2 of Schedule 2.
Associated Rights means:
(a)
all Intellectual Property Rights that the Participants or the Manager holds pertaining to the Mining Information including rights subsisting under copyright, design, trade mark, patent or similar legislation, together with rights recognised at common law; and
(b)
the benefit of any contracts (whether written or oral) between the Manager and the provider of the Mining Information for production of that information, including any actual or implied warranties as to the accuracy of that information.

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ASX Listing Rules means the official listing rules from time to time of the Australian Securities Exchange, as amended, modified or waived from time to time.
Atlas means Atlas Iron Limited (ACN 110 396 168).
Auditor has the meaning given to that term in clause 10.1(a).
Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Perth, Western Australia.
Business Plan means the LOM Business Plan and the Refinery Plant Business Plan.
Called Sum has the meaning given to that term in clause 8.3(b)(iii).
Camp Services Agreement means the 'Accommodation Camp and Airport Services Agreement – MARBL Lithium Project' between the Manager and the Camp Services Provider dated on or around the date of this agreement.
Camp Services Provider means Process Minerals International Pty Ltd (ACN 063 988 894).
Capital Costs means all costs of a type which are treated as capital costs in accordance with International Financial Reporting Standards.
Capital Works means capital works and services associated with a future expansion project or other development in respect of the Joint Venture Operations or to further support, sustain, expand, suspend, rehabilitate or abandon Joint Venture Operations, where applicable as approved by the Management Committee.
Cash Call has the meaning given to that term in clause 8.3(b).
Chairperson has the meaning given to that term in clause 6.6(a).
Change in Control means, in relation to any entity (the first mentioned entity):
(a)
a change in the entity that Controls the first mentioned entity (other than if the Ultimate Holding Company of the first mentioned entity remains the same following the change);
(b)
an entity that Controls the first mentioned entity ceases to Control that entity (other than if the Ultimate Holding Company of the first mentioned entity remains the same following the change); or
(c)
if the first mentioned entity is not Controlled, another entity acquires Control of the first mentioned entity.
Changed Participant has the meaning given to that term in clause 12.12(a).
Chargee has the meaning given to that term in clause 12.7(a).
Chargee’s Priority Deed has the meaning given to that term in clause 12.7(a).
Chargor has the meaning given to that term in clause 12.7(a).
Circular Resolution has the meaning given to that term in clause 6.13(a).
Closure Plan means the plan for Rehabilitation and Mine Closure.

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Competent Person means a person who qualifies as a “Competent Person” for purposes of the JORC Code.
Confidential Information has the meaning given to that term in clause 11.1.
Conflicted Participant has the meaning given to that term in clause 6.8(d).
Continuing Participants has the meaning given to that term in clause 12.5(b).
Contract Liability has the meaning given to that term in clause 5.9(b).
Contracted Concentrate means spodumene concentrate derived from Ore located in the stockpiles on the Tenements or in transit that is the subject of offtake arrangements entered into prior to the Effective Date by WLPL or its agent in accordance with the Asset Sale and Share Subscription Agreement.
Control has the meaning given to that term in section 50AA of the Corporations Act, and Controlled has a corresponding meaning.
Control Transaction means:
(a)
in respect of MRL, any transaction or dealing which would result, on completion, in a Change in Control of MRL and includes, for the purposes of this definition, any person or group of persons acting jointly or in concert, acquiring a relevant interest (as defined in the Corporations Act) in 20% or more of MRL’s issued shares; and
(b)
in respect of Albemarle, any transaction or dealing which would result, on completion, in a Change in Control of Albemarle and includes, for the purposes of this definition, any person or group of persons acting jointly or in concert, acquiring a beneficial interest in 20% or more of Albemarle's issued shares.
Corporations Act means Corporations Act 2001 (Cth).
Crusher means the crusher to be funded, built, owned and, pursuant to the Crushing Services Agreement, operated by the Crushing Services Provider.
Crushing Services Agreement means the 'Build Own and Operate Contract for Crushing Services' between the Manager and the Crushing Services Provider dated on or around the date of this agreement.
Crushing Services Provider means Crushing Services International Pty Ltd (ACN 069 303 377).
Deed of Cross Security means the Deed of Cross Security in, or substantially in, the form of the deed contained in Schedule 3 executed contemporaneously with this agreement by the Participants and the Manager, and includes each other similar deed of charge executed by a new Participant in accordance with clause 12.11(b).
Defaulting Participant means a Participant in respect of which an Event of Default has occurred.
Delivery Point means the place at which Product is delivered to and becomes the property of an individual Participant, being the delivery point determined by the Management Committee from time to time.

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Department means the Department of Mines, Industry Regulation and Safety for Western Australia or such other body, department or instrumentality responsible for the administration of the Mining Act from time to time and includes any registrar or warden.
Development Area means the areas of the Tenements that are, from time to time, the subject of any of the following:
(a)
feasibility level study work; or
(b)
Mining Operations.
Disclosing Participant has the meaning given to that term in clause 2.17(f).
Dispute has the meaning given to that term in clause 18.1.
Dispute Notice has the meaning given to that term in clause 18.2.
Effective Date means the date of completion under the Asset Sale and Share Subscription Agreement.
EOD Notice has the meaning given to that term in clause 13.7(a).
Event of Default has the meaning given to that term in clause 13.1.
Excluded Assets means:
(a)
the Contracted Concentrate;
(b)
the Excluded Infrastructure;
(c)
the Retained Mineral Rights;
(d)
the GAMG Assets; and
(e)
the WLPL Assets.
Excluded Infrastructure means the plant, equipment, machinery, facilities and other infrastructure owned by a third party that is leased, hired or used in the Joint Venture, including the Crusher.
Expert means a person appointed in accordance with clause 17.2.
Exploration Information means Exploration Results and Exploration Targets (as those terms are defined in the JORC Code) relating to the Tenements.
Exploration Operations means all activities as are necessary or expedient for the purpose of exploring the Joint Venture Area.
Financial Year means the twelve (12) Month period ending 31 December each year, or such other period adopted by the Management Committee from time to time as the Financial Year for the Joint Venture.
Force Majeure means any event or circumstance which:
(a)
is beyond the control of the Affected Party;

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(b)
was not directly or indirectly caused or materially contributed to by the Affected Party; and
(c)
could not have been reasonably prevented by the Affected Party,
and includes, subject to the requirements of paragraphs (a) to (c), any of the following:
(d)
act of God;
(e)
law, rule, regulation or order of any government or Government Agency;
(f)
executive or administrative orders or acts of either general or particular application of any official acting under the authority of any government, or of any official acting under the authority of such government;
(g)
act of war (declared or undeclared);
(h)
public disorder;
(i)
riot, insurrection, rebellion, sabotage or act of terrorists;
(j)
fire, flood, drought, earthquake, storm, hail, lightning, severe weather conditions or other natural calamity;
(k)
explosion, breakdown or injury to or expropriation, confiscation or requisitioning of production, manufacturing, selling, transportation or delivery facilities;
(l)
shortage or unavailability (whether permanent or temporary) of water, electricity, gas, telecommunications or other essential goods or services;
(m)
inability to access all or any part of the Joint Venture Area because of Native Title Claims or Native Title Rights or otherwise;
(n)
quarantine or customs restrictions;
(o)
the decision of any court or other body of competent jurisdiction; and
(p)
strike, boycott, lockout or other labour disturbance.
GAAP means the Generally Accepted Accounting Principles adopted by the US Securities and Exchange Commission.
GAMG means Global Advanced Metals Greenbushes Pty Ltd (ACN 125 585 284).
GAMG Assets means the Tantalum Rights and the Tantalum Assets.
GAMG Mineral Rights Agreement means the document entitled 'Mineral Rights Agreement' originally between GAMW, GAMG and Global Advanced Metals Pty Ltd (ACN 139 987 465), dated 8 September 2016, as subsequently amended and assigned.
GAMW means Global Advanced Metals Wodgina Pty Ltd (ACN 125 585 239), formerly Talison Wodgina Pty Ltd.
Government Agency means a government or any governmental, semi-governmental, legislative, administrative, fiscal, quasi-judicial or judicial entity, authority, department, commission, authority, tribunal, agency or entity or other body, whether foreign, federal,

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State, Territorial or local (including any self-regulatory organisation established under statute or any recognised stock exchange).
Gross Negligence means such reckless conduct in breach of a duty of care as demonstrates a conscious or reckless disregard for the harmful, foreseeable, proximate and avoidable consequences which result or may result from that conduct.
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Holding Company has the meaning given to that term in section 9 of the Corporations Act.
Immediately Available Funds means cash, bank cheque or telegraphic or other electronic means of transfer of cleared funds into a bank account.
Initial Mine Plan and Budget means the LOM Business Plan (including the Approved Budget) for the development of the Wodgina Resource as developed and agreed under the Asset Sale and Share Subscription Agreement, as amended pursuant to clause 7.5.
Insolvency Event means the happening of any of the following events in relation to a Participant or the Manager (the Insolvent Party):
(a)
it is, or states that it is, unable to pay all of its debts as and when they become due and payable, or it has failed to comply with a statutory demand as provided in section 459F(1) of the Corporations Act;
(b)
an application or order is made for the winding up or dissolution, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution, of the Insolvent Party (other than for the purposes of a solvent reconstruction, amalgamation or other like corporate reorganisation), and the application is not dismissed, the order is not set aside or the resolution is not withdrawn (as applicable) within 14 days;
(c)
an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of the Insolvent Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 14 days;
(d)
a controller (as defined in the Corporations Act) is appointed in respect of any property of the Insolvent Party;
(e)
the Insolvent Party is deregistered under the Corporations Act;
(f)
a distress, attachment or execution is levied or becomes enforceable against any property of the Insolvent Party;
(g)
the Insolvent Party enters into, or takes any action to enter into, an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them; or
(h)
anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the Insolvent Party.

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Intellectual Property Licence Agreement means the 'Licensing Deed' between the Manager, the Participants and the Licence Provider executed on or around the date of this agreement.
Intellectual Property Rights means all intellectual property rights of whatever nature throughout the world including all rights conferred under statute, common law or equity, whether existing now or at any time in future, including rights in all copyright, patents, trade marks, business names, trade names, domain names, designs, Confidential Information, trade secrets and know-how.
Interest Rate means, on any day, the interest rate that is the aggregate of:
(a)
6% per annum; plus
(b)
the Reserve Bank of Australia’s cash rate, or, if that rate cannot be so determined, the rate (expressed as a percentage yield per annum to maturity) quoted at or about such time by Westpac Banking Corporation as the rate at which it would be prepared to purchase bills of exchange accepted by an Australian trading bank and having a tenor of 90 days and of an amount of $100,000.
International Financial Reporting Standards means, at any time, the International Financial Reporting Standards issued by the International Accounting Standards Board at that time, consistently applied.
Ipso Facto Stay means any limitation on enforcement of rights or self-executing provisions in a contract, agreement or arrangement pursuant to sections 415D, 415F, 415FA, 434J, 434J, 434L, 434LA, 451E, 451G or 451GA of the Corporations Act.
Iron Ore means iron ore and any by-product that is directly associated with the form of iron ore mineralogy.
Iron-Ore Rights has the meaning given to that term in the Asset Sale and Share Subscription Agreement.
Joint Venture means the joint venture formed pursuant to clause 2.1.
Joint Venture Area means the Tenement Area and the area of the Kemerton Sublease and the area of the Kemerton Access Licence or such other area as is agreed by all Participants.
Joint Venture Assets means all rights, titles, interests, claims, benefits and all other assets and property of whatsoever kind, real or personal, from time to time acquired, created or held for use by or on behalf of the Participants in connection with the Joint Venture and for the conduct of Joint Venture Operations, including:
(a)
the Tenements;
(b)
the Pipeline Licences;
(c)
the Mining Information;
(d)
the Project Facilities;
(e)
the Approvals;
(f)
the Third Party Agreements (subject to any exclusions identified in this agreement and to the extent that they relate to the Tenements or Pipeline Licences only);

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(g)
the stockpiles (but excluding Contracted Concentrate);
(h)
the Associated Rights;
(i)
Product, prior to it being taken in kind by a Participant in accordance with clause 2.8 (for the avoidance of doubt, Product to which a Participant is entitled to take in kind in accordance with clause 2.8, contracts with respect to the sale of Product and proceeds from the sale of Product are not Joint Venture Assets); and
(j)
the Refinery Plant;
(k)
the Kemerton Sublease; and
(l)
the Kemerton Access Licence,
but excludes the Excluded Assets.
Joint Venture Costs means all expenditure and liabilities incurred by or for the Participants in accordance with this agreement and includes:
(a)
all expenditure expressed to be part of Joint Venture Costs in this agreement; and
(b)
all expenditure and liabilities incurred by the Manager in accordance with this agreement including those set out in Schedule 5.
Joint Venture Documents means:
(a)
this agreement;
(b)
the Tenements;
(c)
the Shareholders’ Deed;
(d)
the Kemerton Mortgages;
(e)
the Deed of Cross Security; and
(f)
all other agreements entered into by the Participants from time to time in connection with the Joint Venture (whether or not there are also other parties to such agreements) which the Participants agree will be a Joint Venture Document,
together with all amendments made from time to time to such documents, but does not include:
(g)
any contract for the sale by a Participant of its share of Product;
(h)
any agreement whereby a Participant appoints an agent or representative to perform duties and functions in relation to the sale of its share of Product;
(i)
any agreement entered into by a Participant for separately financing its obligations in connection with the Joint Venture; or
(j)
any other agreement entered into by the Participants from time to time which:
(k)
is not in connection with the Joint Venture; or
(l)
the Participants agree will not be a Joint Venture Document.

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Joint Venture Interest means the following obligations, benefits and rights of a Participant expressed as a percentage determined in accordance with this agreement:
(a)
the obligation, subject to the terms of this agreement, to contribute that percentage of all Joint Venture Costs;
(b)
the ownership of and right and benefit as a tenant in common to receive in kind and to dispose of for its own account that percentage of Minerals produced by the Joint Venture;
(c)
the rights, duties, obligations and liabilities of the Participants arising from the Joint Venture Documents; and
(d)
the beneficial ownership as a tenant in common of an undivided share in that percentage of all Joint Venture Assets.
Joint Venture Operations means all activities as are necessary or desirable in order to implement and give full effect to the provisions and purposes of this agreement including Exploration Operations, Mining Operations and the Refinery Operations.
Joint Venture Records and Accounts has the meaning given to that term in clause 9.1(a).
JORC Code means The Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves (2012 Edition) prepared by the Joint Ore Reserves Committee of the Australasian Institute of Mining and Metallurgy, the Australian Institute of Geoscientists and the Minerals Council of Australia, as amended or replaced from time to time.
KCCC Handover has the meaning given to that term in the Asset Sale and Share Subscription Agreement.
KCCC(SA) Handover has the meaning given to that term in the Asset Sale and Share Subscription Agreement.
Kemerton Access Licence means the licence granted to the Participants by Albemarle Lithium in accordance with the MRL Kemerton ASA relating to the Kemerton Easement.
Kemerton Construction Contracts has the meaning given to that term in the MRL Kemerton ASA.
Kemerton Easement means the deed of easement dated 13 December 2018 granted by Western Australian Land Authority Trading as LandCorp in favour of Albemarle Lithium over part of Lot 253 on Deposited Plan 411027 comprised in Certificate of Title Volume 2945 Folio 681 which is marked as 'A' on Deposited Plan 415498.
Kemerton Lease means the lease dated 13 December 2018 granted by Western Australian Land Authority Trading as LandCorp in favour of Albemarle Lithium over part of Lot 253 on Deposited Plan 411027 comprised in Certificate of Title Volume 2945 Folio 681 and as further described in the MRL Kemerton ASA.
Kemerton Mortgages means the Kemerton Mortgages in, or substantially in, the form of the mortgage contained in Schedule 7 executed contemporaneously with this agreement by the Participants, and includes each other similar deed of charge executed by a new Participant in accordance with clause 12.11(b)

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Kemerton Sublease means the sublease of the Kemerton Lease granted to the Participants in accordance with the MRL Kemerton ASA.
Licence Provider means Albemarle U.S., Inc.
Life of Mine means, in relation to the Joint Venture Operations, the expected term of Mining Operations and subsequent Rehabilitation and Mine Closure activities.
Lithium means all naturally occurring lithium mineral obtained or obtainable by Joint Venture Operations carried out on or under the surface of the land the subject of the Tenements.
LOM Business Plan means the business plan for the remaining Life of Mine approved by the Management Committee in the previous Financial Year in accordance with clause 7, as amended or updated from time to time in accordance with clause 7 (which incorporates the Approved Budget) or in respect of Joint Venture Operations relating to the period from the Effective Date until 30 June 2020, the Initial Mine Plan and Budget.
Loss means any cost, damages, debt, expense, liability or loss.
Management Committee means the committee established pursuant to clause 6 which will be referred to by the parties as the Joint Venture Board.
Manager means WLOPL as appointed under clause 4.1 or any successor or permitted assignee as may be appointed from time to time as manager of the Joint Venture in accordance with this agreement.
Mine means the mine site known as the Wodgina Lithium mine site, located in the Pilbara region of Western Australia, situated on the Tenements and including all associated infrastructure.
Mine Closure means all or any action or conduct by the Manager for the purpose of suspending or abandoning all, or a severable part of, the Joint Venture Operations or Joint Venture Assets under this agreement whether by way of demolition, removal, destruction, conversion, placement on permanent care and maintenance or other basis, or any similar action or conduct, and all other action or conduct as the Manager considers necessary to comply with the Mine Closure Obligations.
Mine Closure Obligations means the obligations of the holder(s) of the Tenements in relation to Mine Closure during or pertaining to the term of this agreement and which relate to the land the subject of the Tenements under:
(a)
the Mining Act (including the terms and conditions of the Tenements);
(b)
authorisations, approvals or licences granted by any Government Agency; and
(c)
all other applicable statutory and contractual obligations relating to Mine Closure and the requirements of good mining industry practice on and following Mine Closure.
Mine Development means the location, opening and development of mines and all activities necessary, expedient, conducive or incidental thereto including without limitation pre-stripping and the removal and disposal of over-burden and waste.
Mineral Rights Agreement means the MRA (Exploration Licences) and the MRA (Mining Leases).

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Minerals means all naturally occurring substances on or under the surface of the land.
Mining Act means the Mining Act 1978 (WA) or any amendment or statutory replacement of that Act and includes regulations and orders made under that Act.
Mining Information means all technical information including (without limitation) geological, geochemical and geophysical maps and reports, surveys, mosaics, aerial photographs, electromagnetic tapes, electromagnetic or optical disks, sketches, drawings, memoranda, samples, drill core, drill logs, drill pulp, logs of drill cores, assay results, maps and plans relating to the Tenements or to Joint Venture Operations, whether in physical, written or electronic form.
Mining Operations means commercial mining operations and all activities necessary, expedient, conducive or incidental thereto including without limitation:
(a)
Mine Development; and
(b)
the weighing, sampling, assaying, mining, extraction, crushing, refining, treatment, transportation, handling, storage, loading and delivery of Minerals.
Mining Tenements means the mining tenements specified in Part 1 of Schedule 2.
Month means a calendar month or such other period as is agreed by the Participants to comprise a Month.
MRA (Exploration Licences) means the Sale of Mining Property and Grant of Minerals Rights Agreement (for Exploration Licences) between Atlas and Talison Wodgina Pty Ltd dated 7 May 2008 as amended.
MRA (Mining Leases) means the Sale of Mining Property and Grant of Mineral Rights Agreement (for Mining Leases) between Atlas and Talison Wodgina Pty Ltd dated 1 July 2008 as amended.
MRL means Mineral Resources Limited (ACN 118 549 910).
MRL Kemerton ASA means the document entitled ‘MRL Kemerton Asset Sale Agreement' between the Participants, MRL, Albemarle and Albemarle Lithium dated 1 August 2019
Native Title Act means the Native Title Act 1993 (Cth).
Native Title Claims means any claim, application or proceeding in respect of either:
(a)
Native Title Rights which is accepted by the Native Title Tribunal or the Registrar thereof pursuant to the Native Title Act; or
(b)
Native Title Interests.
Native Title Interests includes those rights, interests and statutory protections of and relating to aboriginal persons as set out in the Aboriginal Heritage Act 1972 (WA), Aboriginal Affairs Planning Authority Act 1972 (WA) or the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
Native Title Rights includes:
(a)
“native title” or “native title rights and interests” as defined in section 223(1) of the Native Title Act; and

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(b)
Native Title Interests.
Non-Defaulting Participants has the meaning given to that term in clause 13.2(a).
Non-Disclosing Participant has the meaning given to that term in clause 2.17(f).
Non-Paying Participant has the meaning given to that term in clause 2.17(c).
Notice of Consent has the meaning given to that term in clause 2.4(e).
Notice of Objection has the meaning given to that term in clause 2.4(d).
Notice of Proposed Activity has the meaning given to that term in clause 2.4(b).
Observer has the meaning given to that term in clause 6.11.
Offered Interest has the meaning given to that term in clause 12.12(b).
Operating Costs means all costs, expenses, losses and charges incurred by the Manager for the account of the Participants severally, in accordance with this agreement, in carrying out the Joint Venture Operations (other than Capital Costs).
Option Exercise Period has the meaning given to that term in clause 13.7(c).
Ordinary Resolution means a decision or determination of the Management Committee which satisfies the voting thresholds in clause 6.9.
Ore means ore derived from the Wodgina Resource.
Participants means WLPL and AWPL and their respective successors and permitted assigns and (where applicable) legal personal representatives of any person which at any time hereafter becomes a Participant and each of those persons constitutes a Participant for the purposes of this agreement.
PCAOB means the Public Company Accounting Oversight Board of the US.
Permitted Security Interest means:
(a)
any lien arising by operation of law:
(i)
for the unpaid balance of purchase moneys under an instalment contract entered into in the ordinary course of business; or
(ii)
in the ordinary course of day to day trading and securing obligations not more than 30 days old;
(b)
any bankers’ lien or right of set-off or combination arising by operation of law or practice over property or moneys deposited with a banker in the ordinary course of ordinary business of the depositor;
(c)
any Security Interest arising under an operating lease or finance lease entered into in the ordinary course of business and not arising as a result of any default or omission by any Participant;
(d)
any retention of title arrangement in connection with the acquisition of goods on arm's length terms in the ordinary course of ordinary business on the suppliers' usual terms of sale;

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(e)
any Security Interest created by statute in favour of Government Agency securing the payment of taxes, except as created because of any failure to duly pay any taxes; and
(f)
a deemed Security Interest under section 12(3) of the PPS Act that does not secure payment or performance of an obligation.
Personnel means in relation to a party, that party’s directors, officers, employees, agents, consultants, contractors and subcontractors.
Petroleum Pipelines Act means the Petroleum Pipelines Act 1969 (WA);
Pipeline Licences means petroleum pipeline licences PL 55, PL 56 and PL 116 granted under the Petroleum Pipelines Act, and any renewals, conversions, extensions, amalgamations or amendments of, and substitutions for these petroleum pipeline licences.
Plant Services Agreement means an agreement for the provision of services for the operation and maintenance of the Refinery Plant between the Manager and Albemarle Lithium.
PPS Act means the Personal Property Securities Act 2009 (Cth).
Processing Plant means the spodumene concentration facility located on the Tenement Area.
Product means Minerals in the form in which it is to be made available to each Participant at the Delivery Point either:
(a)
recovered from the Tenements;
(b)
received in exchange for quantities recovered from the Tenements as described in clause 2.8(d); or
(c)
from such other sources as may be agreed by the Participants from time to time,
initially in accordance with the Initial Mine Plan and Budget and the Refinery Plant Business Plan.
Project Facilities means the plant, equipment, machinery, facilities and other infrastructure used for the purposes of conducting the Joint Venture Operations, including those described in the Asset Sale and Share Subscription Agreement or the MRL Kemerton ASA.
Proposed Activity has the meaning given to that term in clause 2.4(b).
Proposed Budget means a work programme and budget for a given Financial Year, or other relevant period, in relation to the conduct of Joint Venture Operations, proposed in accordance with the corresponding Business Plan.
Proposed Buyer has the meaning given to that term in clause 12.5(a)(i).
Proposed Sale Notice has the meaning given to that term in clause 12.5(a).
Quarter means a period of three Months commencing on the first day of January, April, July and October, as the case may be.

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Rectifying Participant has the meaning given to that term in clause 2.17(c).
Refinery Operations means the operation of the Refinery Plant (including the construction of any expansion).
Refinery Plant means a plant capable of converting spodumene concentrate into lithium hydroxide monohydrate, consisting of two modules each designed to be capable of producing approximately 25ktpa of lithium hydroxide monohydrate, and designed to have a total production capacity of at least 50ktpa of lithium hydroxide monohydrate as may be expanded, including by the construction of one or more separate plants at other locations on the Joint Venture Area.
Refinery Plant Business Plan means the business plan adopted for the operation and maintenance of the Refinery Plant approved by the Management Committee in the previous Financial Year in accordance with clause 7, as amended or updated from time to time in accordance with clause 7 (which incorporates the Approved Budget).
Rehabilitation means all undertakings, works and efforts for the rehabilitation, reclamation, revegetation, decontamination and cleaning up of the Tenements and, subject to terms of the Kemerton Sublease, the land that is the subject of the Kemerton Sublease.
Rehabilitation Levy means the mining rehabilitation levy under the Mining Rehabilitation Fund Act 2012 (WA).
Rehabilitation Obligations means the obligations of the holder(s) of the Tenements in relation to Rehabilitation required to be undertaken during or pertaining to the term of this agreement (regardless of when the activity giving rise to that Rehabilitation obligation arose) and which relate to the land the subject of the Tenements under:
(a)
the Mining Act (including the terms and conditions of the Tenements); and
(b)
authorisations, approvals or licences granted by any Government Agency; and
all other applicable statutory and contractual obligations relating to the Rehabilitation of the Tenements and any such obligations (if any) of the Participants under or in respect of the Kemerton Sublease in relation to the land that is the subject of the Kemerton Sublease.
Related Party Contracts has the meaning given to that term in clause 5.8(a)(i).
Remediation Plan has the meaning given to that term in clause 4.3(b)(iii).
Representative means a person for the time being appointed by a Participant as its representative on the Management Committee and includes any alternate of that person appointed under clause 6.2(b), which person will be referred to by the parties as the Joint Venture Board Member.
Resources and Reserves means Mineral Resources, Ore Reserves and Mineral Reserves, as those terms are defined in the JORC Code, located on the Tenements.
Retained Mineral Rights means the Iron Ore Rights retained by WLPL.
Royalty Liability has the meaning given to that term in clause 2.17(a).
Sale Interest has the meaning given to that term in clause 12.5(a)(ii).

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Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation, security interest, title retention, preferential right or trust arrangement and any other security agreement or arrangement securing obligations or liabilities, whether absolute or contingent and includes a security interest under the PPS Act.
Selling Participant has the meaning given to that term in clause 12.4.
Service Contract List has the meaning given to that term in clause 5.14(a).
Service Participant has the meaning given to that term in clause 5.14(d).
Shareholders’ Deed means the Shareholders' Deed between WLPL and AWPL dated on or around the date of this agreement.
Special Resolution means a decision or determination of the Management Committee which satisfies the voting thresholds set out in clause 6.10.
Subsidiary means a body corporate (first body) in which another body corporate holds the entire issued share capital or the first body is a subsidiary of a subsidiary of the other body corporate.
Tantalum means tantalum pentoxide (Ta2O5) and tantalum pentoxide bearing ore.
Tantalum Assets means the assets known as the ‘tantalum circuit’ forming part of the Processing Plant and owned by GAMG.
Tantalum Rights means the rights to Tantalum retained by GAMG in relation to the Tenements pursuant to the GAMG Mineral Rights Agreement
Tenement Applications means the mining tenements specified in Part 3 of Schedule 2.
Tenement Area means the area of all of the Tenements.
Tenements means:
(a)
the Mining Tenements;
(b)
the Assigned Tenements;
(c)
the Tenement Applications;
(d)
all other permits, licences and leases under the Mining Act (if any) granted to, or applied for by or on behalf of, the Participants for the purposes of the Joint Venture from time to time; and
(e)
all renewals, conversions, extensions, amalgamations or amendments of, and substitutions for, the tenements and applications mentioned in paragraphs (a) to (d).
Third Party means a person not a party, or an Affiliate of a party, to this agreement.
Third Party Agreement means each of the contracts for the provisions of goods or services relating to the Joint Venture, including those described in the Asset Sale and Share Subscription Agreement or the MRL Kemerton ASA.
Transfer Approvals means necessary Government Agency consents, approvals or clearances and any consents or approvals required under competition laws and the

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foreign investment laws of Australia or any relevant foreign jurisdiction that are required to affect a transfer of a Participant's Joint Venture Interest as described in clauses 12.5(j), 12.6(a), 12.12(f)(ii) and 13.7.
Transferee has the meaning given to that term in clause 12.2.
Transferor has the meaning given to that term in clause 12.2.
Transitional Services Agreement means the 'Transitional Services Agreement – MARBL Lithium Project' between the Manager, Albemarle Lithium and MRL dated on or around the date of this agreement.
Ultimate Holding Company has the meaning given to that term in section 9 of the Corporations Act.
US means the United States of America.
Valuer means a suitably qualified and experienced person, having at least 10 years' experience in valuing mining assets, to determine the value of:
(a)
the Offered Interest; or
(b)
the Joint Venture Interest of the Defaulting Participant,
as applicable.
Wilful Misconduct means an intentional and conscious disregard of any provision of this agreement, but does not include any error of judgement or mistake made by the person alleged to be culpable or by any director, employee, agent or contractor of that person in the exercise, in good faith, of any function, power, authority or discretion conferred on that person under this agreement or under any law.
WLPL Assets means the New Crusher and the Old Crusher (each as defined in the Asset Sale and Share Subscription Agreement).
WLPL Ownership Period means the period from 9 September 2016 to the Effective Date.
WLPL Services has the meaning given to that term in clause 5.13(b)(i).
Wodgina Resource means the lithium resource identified within the area of the Tenements and the subject of MRL’s ASX announcements dated 21 March 2017 and 28 April 2017.
2
Interpretation
In this agreement headings are for convenience only and do not affect the interpretation of this agreement and the following rules of interpretation apply unless the contrary intention appears:
(a)
the singular includes the plural and vice versa;
(b)
words that are gender neutral or gender specific include each gender;

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(c)
where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d)
the words 'such as', 'including', 'particularly' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(e)
a reference to:
(i)
a person includes a natural person, partnership, joint venture, Government Agency, association, corporation or other body corporate;
(ii)
a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
(iii)
a party includes its successors and permitted assigns;
(iv)
a document includes all amendments or supplements to that document;
(v)
a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this agreement;
(vi)
this agreement includes all schedules and attachments to it;
(vii)
a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(viii)
an agreement other than this agreement includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
(ix)
a monetary amount is in Australian dollars;
(f)
when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day;
(g)
in determining the time of day, where relevant to this agreement, the relevant time of day is:
(i)
for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
(ii)
for any other purpose under this agreement, the time of day in the place where the party required to perform an obligation is located;
(h)
A reference to AWPL and WLPL, includes in each case each of their respective successors and permitted assigns and (where applicable) legal personal representatives which at any time hereafter becomes a Participant; and
(i)
no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement or any part of it.

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Schedule 2
Tenements




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Schedule 3
Deed of Cross Security







 
EXECUTION VERSION

 


Deed of cross -security
Wodgina Lithium Joint Venture
⎯
Wodgina Lithium Pty Ltd
Albemarle Wodgina Pty Ltd
MARBL Lithium Operations Pty Ltd
⎯








Deed of cross-security
Wodgina Lithium Joint Venture
 
Details
4
Agreed terms
5
1.
Defined terms & interpretation    5
1.1
Defined terms    5
1.2
Interpretation    7
1.3
Supremacy of interpretation    8
2.
Security    8
2.1
Participant must pay the Indebtedness    8
2.2
Grant of Security    8
2.3
Variations and Replacements    8
2.4
Mining Act registration    9
2.5
Other registration of Security Interest    9
3.
Nature of Security    9
3.1
Priority    9
3.2
Dealing with Collateral    9
3.3
Revolving Assets    10
3.4
Conversion to Revolving Assets    10
3.5
Inventory    10
3.6
Continuing security    10
3.7
Preference    10
4.
Enforcement    11
4.1
Enforcement by Non-Defaulter    11
4.2
Enforcement by Manager    11
4.3
Enforcement Administrator    11
4.4
Powers    12
4.5
Proceeds of sales contracts    12
4.6
Sale of Collateral    12
4.7
Expert determination    13
4.8
Enforcement Administrator appointed after commencement of winding up    13
4.9
Withdrawal    14
5.
Application of moneys received    14
5.1
Sale Proceeds    14
5.2
Prescribed Order    14
5.3
Moneys actually received    14
5.4
Conversion of currencies on application of moneys    15
6.
Shares and other interests    15
6.1
Non-Defaulting Participant to retain all rights and dividends    15
6.2
Cessation of Defaulter rights    15
7.
Protection of third parties    15
7.1
Dealings with Enforcer or Enforcement Administrator    15
7.2
Validity of receipt of Enforcer or Enforcement Administrator    15
8.
Assignment    16
8.1
Assignment only as permitted by Joint Venture Agreement    16
8.2
Release and replacement of Security on assignment    16


Page 2


8.3
Chargee’s Priority Deed    16
8.4
Rights of third parties on assignment    16
9.
Liability for loss and indemnity    16
9.1
Persons not liable to account    16
9.2
Persons not liable for entry into possession    16
9.3
Indemnity    17
10.
Warranties and further assurance    17
10.1
Warranties    17
10.2
Further assurance    17
10.3
Power of Attorney    17
11.
Application of PPSA to this deed    17
11.1
Exclusion of PPSA provisions    17
11.2
Exercise of Powers by Enforcers and Enforcement Administrators    18
11.3
No notice required unless mandatory    18
11.4
Confidentiality    18
11.5
Registration    18
12.
Goods and services tax    18
13.
Moratorium legislation    18
14.
Notices    19
14.1
Form of Notice    19
14.2
When Notices are taken to have been given and received    19
15.
Ancillary provisions    19
15.1
Entire agreement    19
15.2
Severability    19
15.3
Successors and permitted assigns    19
15.4
Exercise of rights    19
15.5
Waiver    20
15.6
Confidentiality    20
15.7
Remedies cumulative    20
15.8
Amendment    20
15.9
Counterparts    20
15.10
Applicable law    20
15.11
Costs    20
Signing page
21

 



Page 3


Details
Date
 
Parties
Name
Wodgina Lithium Pty Ltd
ACN
611 488 932
Short form name
WLPL
Notice details
1 Sleat Road, Applecross WA 6153
 
Attention: Company Secretary

Name
Albemarle Wodgina Pty Ltd
ACN
630 509 303
Short form name
AWPL
Notice details
4250 Congress Street, Suite 900, Charlotte NC 28209
Email: legal_notices@albemarle.com
 
Attention: General Counsel


Name
MARBL Lithium Operations Pty Ltd
ABN
52 637 077 608
Short form name
Manager
Notice details
4250 Congress Street, Suite 900, Charlotte, NC 28209
Copy: legal_notices@albemarle.com
 
Attention: Company Secretary
Copy: General Counsel, Albemarle Corporation


Background
A
The parties to this deed are also parties to the Joint Venture Agreement.
B
The Manager is the Manager of the Joint Venture established by the Joint Venture Agreement.
C
The parties have agreed to enter into this deed to secure performance of each Participant’s obligations to each other Participant and the Manager under the Joint Venture Agreement.



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Agreed terms
The parties agree:
In consideration of, among other things, the mutual promises contained in this deed:
1.
Defined terms & interpretation
1.1
Defined terms
In this deed, unless set out below or the context otherwise requires, the definition of each defined expression in this deed (including the Background) is the same as is defined in the Joint Venture Agreement, and in addition:
Collateral means, in relation to a Grantor, all of its present and after acquired interest at any time in:
(a)
its Joint Venture Interest, including its Percentage Share of the Tenements and all other Joint Venture Assets;
(b)
its Percentage Share of Products produced by the Joint Venture;
(c)
its right and interest in all Specified Documents, including all its rights and interest in all contracts for the sale of its Percentage Share of Products produced by the Joint Venture and any proceeds of sale of those Products;
(d)
its Percentage Share of all present and future proceeds of insurance taken out under the Joint Venture Agreement;
(e)
its Percentage Share of moneys held by the Manager for and on behalf of the Joint Venture and all claims and entitlements for money or other property to be paid or transferred to the Joint Venture; and
(f)
all proceeds derived or arising from any of the above.
Control Event means:
(a)
in respect of any Collateral of a Participant that is, or would have been, a Revolving Asset:
(i)
the Participant deals, or attempts to deal with the Collateral or takes any step in breach of this deed or takes any step which would result in it doing so; or
(ii)
a person takes a step (including signing a notice or direction) which may result in taxes, or an amount owing to a Government Agency, ranking ahead of the security interest in the Collateral under this deed; or
(iii)
a receiver, receiver and manager or controller is appointed to the Collateral, or something having substantially similar effect happens in relation to the Collateral or Share Collateral under any Law; or
(b)
in respect of all Collateral of a Participant that is or would have been Revolving Assets:
(i)
the Participant becomes a Defaulting Participant; or
(ii)
a voluntary administrator, liquidator or provisional liquidator is appointed in respect of the Participant or the winding up of the Participant begins, or something having a substantially similar effect happens under any Law.
Default means the failure by a Participant to pay, when due, any Indebtedness secured under this deed.
Defaulter means a Participant which is in Default under this deed.
Enforcement Administrator means, in relation to an Enforcer, the Enforcer, any receiver, receiver and manager, administrator or attorney appointed under this deed or any agent of the


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Enforcer which has entered into possession of the whole or part of the Collateral or Share Collateral.
Enforcement Expenses means all costs, charges and expenses of the Enforcer and the Enforcement Administrator (including its remuneration) incurred in or incidental to the exercise or performance of any Power under this deed.
Enforcer means a party to this deed which has commenced enforcement proceedings under this deed.
Expert means a person suitably qualified and capable of making an expert determination under this deed for the purposes of the Resolution Institute Expert Determination Rules.
Financing Statement means a financing statement registrable under the PPSA in a form agreed between the Participants.
Grantor means each person who is a party to this deed to the extent it is granting a Security Interest under this deed.
Indebtedness means, in relation to a Grantor, all Called Sums and other moneys due but unpaid which the Grantor is at any time liable to pay to or for the account of the Manager or any other Participant, whether alone or with any other person, under this deed or the Joint Venture Agreement.
Joint Venture Agreement means the Wodgina joint venture agreement dated on or about the date of this deed between the parties to this deed.
Law means Commonwealth and State legislation including regulations, by laws, and other subordinate legislation, the requirements and guidelines of any Government Agency, including the ASX Listing Rules, with which a party is legally required to comply, and common law and equity.
Marketable Security means:
(a)
a 'marketable security' (as defined in the Corporations Act);
(b)
a negotiable instrument (within the ordinary meaning of that term);
(c)
a unit or other interest in a trust or partnership; and
a right or an option in respect of any of the above, whether issued or unissued.
Minimum Plant Value means A$1,000,000.
Non-Defaulter means a party to this deed other than a Defaulter.
Particulars mean the particulars of a party given on page 1 of this deed, as amended by notice given in accordance with this deed.
Percentage Share means the percentage Joint Venture Interest which a Participant has in the Joint Venture in accordance with the Joint Venture Agreement.
Power means any power, right, authority, discretion or remedy conferred on the Manager, any Participant or an Enforcement Administrator by this deed or by Law in relation to this deed.
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.
Prescribed Order means the order prescribed under this deed for the application of all moneys received by an Enforcer or an Enforcement Administrator under or by virtue of this deed, subject to any Law and notwithstanding agreement to the contrary.
Proceeds means, in relation to any Collateral or any Share Collateral, all proceeds realised as a result of a Secured Party or its Enforcement Administrator taking possession of, or exercising any of its Powers in relation to, the relevant Collateral or Share Collateral.
Relevant Marketable Securities means the Marketable Securities held by a Grantor in the Manager.


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Relevant Securities means all present and future Relevant Marketable Securities, Rights and Share Proceeds and any certificate, registration, title or other evidence of ownership of, or rights to, any of those things.
Revolving Asset means any Collateral:
(a)
which is, or is an interest in, anything other than:
(i)
the Tenements;
(ii)
freehold or leasehold land included in Joint Venture Assets; or
(iii)
fixtures, plant or equipment included in Joint Venture Assets having an individual market value of more than the Minimum Plant Value; and
(b)
in relation to which no Control Event has occurred, unless (despite that Control Event) the Collateral has become a Revolving Asset in accordance with this deed.
Rights means:
(a)
rights to acquire Marketable Securities arising because a Grantor has an interest in the Relevant Marketable Securities, including due to any allotment, offer, substitution, conversion, consolidation, reclassification, redemption, reconstruction, amalgamation, subdivision, reduction of capital, liquidation or scheme of arrangement in relation to any Relevant Marketable Securities; and
(b)
any other rights of a Grantor of any kind in connection with the Relevant Marketable Securities, including in relation to any Share Proceeds.
Secured Party means a party to this deed to the extent it is receiving the benefit of a Security Interest under this deed.
Security means the Security Interests constituted or created by this deed.
Security Interest means:
(a)
any 'security interest' as defined in the PPSA; and
(b)
any other security for the payment of money or performance of obligations including any security or preferential interest or arrangement of any kind, or any other right of or arrangement with any creditor to have its claims satisfied prior to other creditors with, or from the Proceeds of, any asset including, without limitation, retention of title other than in the ordinary course of business and any deposit of money by way of security.
Share Collateral means, in relation to a Grantor, all of the Grantor's present and future Relevant Marketable Securities, Rights and Share Proceeds and any certificate, registration, title or other evidence of ownership of, or rights to, any of those things.
Share Proceeds means, in relation to any Share Collateral, all money (in whatever currency) and amounts payable to a Grantor or to which a Grantor is entitled now or in the future (whether alone or with any other person) on any account or in any way whatsoever under, or as holder of, any Relevant Marketable Securities or Rights, including:
(a)
distributions, dividends, bonuses, profits, return of capital, interest and all proceeds of sale (within the ordinary meaning of those words), redemption or disposal; and
(b)
all 'proceeds' (as defined in section 31 of the PPSA), including all proceeds identified in sections 31(1)(a) to 31(1)(c) of the PPSA.
Specified Document means an agreement or other document made by the Participants for the purposes of the Joint Venture, or made by a Participant or its Affilaites for the purposes of selling or otherwise disposing, and facilitating the sale, of its Percentage Share of Products produced by the Joint Venture , whether made before or after the date of this deed, and includes.
1.2
Interpretation


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In this deed, unless the context otherwise requires:
(a)
the singular includes the plural and vice-versa;
(b)
headings do not affect the interpretation of this deed;
(c)
a reference to a party means a party to this deed as listed on page 1 of this deed and includes that party's executors, administrators, substitutes, successors and permitted assigns;
(d)
references to a part, clause, schedule, exhibit and annexure refers to a part, clause, schedule, exhibit or annexure of, in or to this deed;
(e)
a reference to this deed includes all schedules, exhibits and annexures to this deed;
(f)
a reference to an agreement, deed, instrument or other document includes the same as amended, novated, supplemented, varied or replaced from time to time;
(g)
a reference to a court is to an Australian court;
(h)
a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinated legislation issued under, that legislation or legislative provision;
(i)
a reference to a day, month or year is relevantly to a calendar day, calendar month or calendar year;
(j)
a reference to $, AUD or dollars is to the lawful currency of the Commonwealth of Australia;
(k)
a reference to an amount for which a person is contingently liable includes an amount which that person may become actually or contingently liable to pay if a contingency occurs, whether or not that liability will actually arise; and
(l)
no rule of construction is to apply to the disadvantage of a party on the basis that that party drafted the whole or any part of this deed.
1.3
Supremacy of interpretation
If there is any conflict between a provision of this deed and a provision of any Specified Document (other than the Joint Venture Agreement), this deed shall prevail.
2.
Security
2.1
Participant must pay the Indebtedness
Each Participant agrees to pay its Indebtedness in accordance with the terms of any agreement in writing to do so.
2.2
Grant of Security
(a)
Each Participant grants a Security Interest:
(i)
in the Collateral to each other Participant, and to the Manager to secure payment of its Indebtedness to that other Participant and to the Manager respectively; and
(ii)
in the Share Collateral to each other Participant to secure payment of its Indebtedness to that other Participant;
subject to the terms of this deed and the Joint Venture Agreement. This security interest is a charge. If for any reason it is necessary to determine the nature of this charge, it is a floating charge over Revolving Assets and a fixed charge over all other Collateral and the Share Collateral.


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(b)
To the extent that any law requires that something must be done (such as obtaining consent) before a Participant may validly grant a Security Interest over any of its Collateral or Share Collateral, the Security Interests granted under this clause only take effect in relation to that Collateral or Share Collateral when the thing required is done. That Participant agrees to do everything necessary to ensure that the thing is done.
2.3
Variations and Replacements
(a)
For the purposes of this deed only, each Participant acknowledges that the Joint Venture Agreement may be varied or replaced from time to time in accordance with its terms.
(b)
Each Participant confirms that the Indebtedness includes relevant amounts under the Joint Venture Agreement or this deed as varied or replaced and that this applies regardless of:
(i)
how the Joint Venture Agreement or this deed is varied or replaced; or
(ii)
the reasons for the variation or replacement; and
(iii)
whether the Indebtedness decreases or increases or the Joint Venture Agreement or this deed is otherwise more onerous as a result of the variation or replacement.
2.4
Mining Act registration
(a)
Each Participant must use its best endeavours to cause this deed to be registered or recorded under the Mining Act.
(b)
If this deed is not able to be registered or recorded under the Mining Act, each Participant must execute a mortgage in registrable form on the same terms as this deed and register or record it under the Mining Act against the Tenements.
(c)
If this deed or a mortgage is not able to be registered or recorded under the Mining Act, a Participant may lodge a caveat under the Mining Act to protect its interest under this deed, and each other party will provide its consent to that caveat if required by the relevant law in order to make the caveat non-lapsing.
2.5
Other registration of Security Interest
Each Participant must:
(a)
if required by the Manager and all Participants, prepare and execute such land or water rights mortgages as may be registrable on the same terms as this deed against land or water rights forming part of the Joint Venture Assets, and cause such land or water rights mortgages to be registered or recorded under the applicable registration legislation;
(b)
(as Grantor) co-operate with each other Participant and the Manager (each as Secured Party) to assist the Secured Party to register Financing Statements under the PPSA in respect of the security interests granted by the Grantor under this deed. Unless otherwise agreed by all Participants no Participant is required to assist a Secured Party to perfect its security interests under the PPSA by any means other than registration of a Financing Statement; and
(c)
execute and deliver to each other Participant transfer forms in relation to any of the Share Collateral, undated and blank as to transferee and consideration.
3.
Nature of Security
3.1
Priority


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(a)
Subject to sub-clause (b), each Participant warrants to and covenants with each other Participant and the Manager that the Security granted by it is and will remain a first-ranking Security Interest with respect to all its Collateral and Share Collateral, ranking ahead of all other Security Interests.
(b)
The warranty and covenant in sub-clause (a) do not apply to any Security Interest that is a Permitted Security Interest.
(c)
Subject to clause 5.2, the Security in favour of each Secured Party ranks equally as between Secured Parties irrespective of the date of any registration, the date on which respective amounts of Indebtedness became due, or the date on which each Participant became a party to this deed.
3.2
Dealing with Collateral
(a)
Each Participant warrants to each other Participant and the Manager that as at the date of this deed no Security Interest exists affecting its Collateral or Share Collateral other than any Permitted Security Interest.
(b)
Each Participant covenants with each other Participant and the Manager that it will not do, or agree to do, any of the following unless it is permitted to do so by this deed or by the Joint Venture Agreement:
(i)
create or allow another interest in any Collateral or Share Collateral; or
(ii)
dispose, or part with possession, of any Collateral or Share Collateral.
(c)
A Participant may, unless it is prohibited from doing so by the Joint Venture Agreement, create or allow to exist any Permitted Security Interest.
(d)
A Participant may create or allow another interest in, or dispose or part with possession of, any of the following, unless it is prohibited from doing so by the Joint Venture Agreement:
(i)
any Products, contracts for the sale of Products, or Proceeds of the sale of Products, in each case while they are Revolving Assets, in the ordinary course of its ordinary business; or
(ii)
any other Revolving Assets, in the ordinary course of business pursuant to the Joint Venture Agreement.
3.3
Revolving Assets
If a Control Event occurs in respect of any Collateral of a Grantor then automatically:
(a)
that Collateral is not (and immediately ceases to be) a Revolving Asset;
(b)
any floating charge over that Collateral immediately operates as a fixed charge; and
(c)
the Grantor may no longer deal with the Collateral in the ordinary course of business as permitted by this deed.
3.4
Conversion to Revolving Assets
If any Collateral of a Grantor (other than any Collateral of a type referred to in paragraph (a) of the definition of Revolving Asset) is not, or ceases to be, a Revolving Asset:
(a)
if the Grantor was, but ceases to be, a Defaulting Participant, and no other Control Event has occurred in relation to the Collateral, then upon the Grantor ceasing to be a Defaulting Participant the Collateral will automatically become a Revolving Asset and subject to a floating charge; and
(b)
in any case, the Secured Parties (acting together), or an Enforcer, or an Enforcement Administrator, may give the Grantor a notice stating that, from a date specified in the notice, the Collateral specified in the notice is a Revolving Asset, or becomes subject to a floating charge.


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This may occur any number of times.
3.5
Inventory
Any Collateral of a Grantor that is inventory which is not, or ceases to be, a Revolving Asset is specifically appropriated to a security interest under this deed. The Grantor may not remove it without obtaining the specific and express authority of the Secured Parties (acting together), an Enforcer or an Enforcement Administrator.
3.6
Continuing security
This Security is a continuing security notwithstanding any settlement of account, intervening payment or any other matter or thing whatsoever and remains in full force until a final discharge has been executed by all Participants.
3.7
Preference
If a claim that any payment, transaction, conveyance or transfer during the currency of the Security affecting or relating in any way to the Indebtedness is void or voidable under any law relating to bankruptcy or winding up or the protection of creditors is upheld, conceded or comprised (Preference):
(a)
the Non-Defaulters will forthwith become entitled against the Defaulter to all rights in respect of the Indebtedness and the Collateral and the Share Collateral as they would have had if the Preference had not been made;
(b)
the Manager will forthwith become entitled against the Defaulter to all rights in respect of the Indebtedness and the Collateral as they would have had if the Preference had not been made; and
(c)
the Defaulter must forthwith take all such steps and sign all such documents as may be necessary or convenient to restore to each Non-Defaulter and the Manager any Security Interest held by it immediately prior to such Preference.
4.
Enforcement
4.1
Enforcement by Non-Defaulter
Without limiting the remedies available to any Participant under any Specified Document or otherwise, if a Participant goes into and continues to be in Default for a period of 14 days, each Non-Defaulter may:
(a)
exercise each and every Power provided in this deed to enforce the Security granted by the Defaulter and use and apply any moneys realised from the exercise of any such power or remedy as provided in this deed; or
(b)
subject to this deed, request and authorise the Manager in writing to enforce the Non-Defaulter's rights under this deed on behalf of the Non-Defaulter.
4.2
Enforcement by Manager
(a)
Without prejudice to its ability to take action itself to enforce the Security, each of the Participants irrevocably appoints the Manager as its attorney to take action to enforce the Security.
(b)
If, on close of business on the day after a Participant becomes a Defaulter and it continues to be a Defaulter for a period of 14 days, the Manager:
(i)
unless an Affiliate of the Manager is a Defaulter, may take action in its own name to enforce the Security and exercise all or any of the Powers in respect of all Indebtedness owing by such Defaulter; and
(ii)
must take such action if requested to do so by any Non-Defaulter subject to the rights of the other Participants under this deed.


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(c)
The Manager must not take any action in respect of any Indebtedness (other than Indebtedness owing to the Manager) if directed in writing to refrain from taking such action by all the Non-Defaulters.
(d)
If the Manager has not acted within 7 days after a request from a Non-Defaulter to enforce this Security against a Defaulter, any Non-Defaulting Participant, so long as it is a Non-Defaulting Participant, may enforce the rights of the Manager under this deed, without the necessity for the concurrence of the other Participants, which enforcement the Manager irrevocably authorises.
4.3
Enforcement Administrator
(a)
The Enforcer may at any time after its entitlement to enforce arises:
(i)
appoint any person or two or more persons jointly and/or severally to be an Enforcement Administrator of all or any of the Collateral and the Share Collateral, if applicable, of the Defaulter;
(ii)
remove any Enforcement Administrator and in the case of the removal, retirement or death of any Enforcement Administrator may appoint another in his place; and
(iii)
fix the remuneration of any Enforcement Administrator.
(b)
An Enforcement Administrator appointed under this clause is deemed to be the agent of the Defaulter which is solely responsible for his or her acts and defaults and for his or her remuneration.
(c)
Except as otherwise provided in this deed, neither the Non-Defaulting Participant nor the Manager is under any liability to the Enforcement Administrator for Enforcement Expenses or otherwise.
4.4
Powers
(a)
Subject always to the Joint Venture Agreement, and to any restriction in the terms of their appointment, and in addition to any powers granted by Law, every Enforcer or Enforcement Administrator has power without the need for any consent on the part of a Defaulter to do anything in respect of the relevant Collateral and Share Collateral, if applicable, which that Defaulter could do, including (without limitation, unless the terms of appointment restrict an Enforcement Administrator's powers):
(i)
improve the Collateral and the Share Collateral, if applicable;
(ii)
sell, transfer or otherwise dispose of the Collateral or Share Collateral, if applicable, or any interest in it;
(iii)
lease or licence the Collateral or any interest in it, or deal with any existing lease or licence (including allowing a surrender or variation);
(iv)
take or give up possession of the Collateral as often as it chooses;
(v)
sever, remove and sell fixtures attached to the Collateral;
(vi)
do anything else the Law allows as owner or an Enforcement Administrator of the Collateral or Share Collateral, if applicable to do.
Each of the above paragraphs must be construed independently. No one paragraph limits the generality of any other paragraph.
(b)
All provisions of any Law are deemed to be negatived or varied in so far as they are inconsistent with the terms and provisions expressed in this deed.
(c)
Any dealing under any such power may be on such terms and conditions as the Enforcer or Enforcement Administrator thinks fit.
4.5
Proceeds of sales contracts


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(a)
A Defaulter must supply its Percentage Share of Products in performance of the Defaulter's obligations under bona fide sales contracts entered into prior to this Security becoming enforceable or under bona fide sales contracts entered into by the Enforcer as agent of the Defaulter, with such persons and on such terms and conditions as the Enforcer determines, provided that such terms are at arm's length.
(b)
An Enforcer which becomes entitled to enforce its rights under this deed may at any time, in addition to any other remedies available to it under this deed or at law as agent of the Defaulter, instruct the Manager to make further deliveries of the Defaulter's Percentage Share of Products to purchasers on behalf of the Defaulter until the Indebtedness relating to the Defaulter has been paid in full.
4.6
Sale of Collateral
(a)
The Enforcer or Enforcement Administrator may sell or concur in selling any of the Collateral or Share Collateral, if applicable, in accordance with the following provisions of this clause.
(b)
The Enforcer or Enforcement Administrator may sell or concur in selling any of the Collateral or Share Collateral, if applicable, such sale to be made:
(i)
either by public auction or private treaty or by tender for cash or on credit;
(ii)
in one lot or in parcels;
(iii)
either with or without special conditions or stipulations as to title or time or mode of payment of purchase money or otherwise;
(iv)
with power to allow the whole or any part of the purchase money to be deferred (whether with or without security);
(v)
whether or not in conjunction with the sale of any property by any person; and
(vi)
upon such other terms and conditions as the Enforcer or Enforcement Administrator may consider expedient.
(c)
The Enforcer or Enforcement Administrator must give to each Non-Defaulting Participant not less than 90 days' written notice of the Enforcer's or Enforcement Administrator's intention to sell or offer for sale the Collateral or Share Collateral, as applicable, of the Defaulter (other than the Defaulter's Percentage Share of Products, which the Enforcer or Enforcement Administrator may sell forthwith).
(d)
Each Non-Defaulting Participant has the right to purchase the Collateral or Share Collateral, as applicable, being offered for sale in the proportion that its respective Joint Venture Interest bears to the total of the Joint Venture Interests of the Non-Defaulting Participants. If any Non-Defaulting Participant does not wish or is unable to obtain any governmental approvals to join in the purchase of that Collateral or Share Collateral, as applicable, it must notify the other Non-Defaulting Participants accordingly within the first 45 days of the 90 day period and thereupon the other Non-Defaulting Participants have the right to purchase the whole but not part of the relevant Collateral or Share Collateral, as applicable.
(e)
The right to purchase set forth in this clause must be exercised within the first 75 days of the 90 day period or where the question of fair market value is referred to an Expert for determination under this deed within 14 days of such Expert's determination.
(f)
The price payable for the Defaulter's Collateral or Share Collateral, as applicable, is an amount equivalent to its fair market value as of the first date upon which action is taken to enforce this Security in respect of such Collateral or Share Collateral. Such fair market value must be agreed between the Defaulter and such of the Non-Defaulting Participants who have the right to purchase the Collateral or Share Collateral, as applicable, or failing agreement, as determined an Expert for determination under this deed.


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(g)
If the Defaulter's Collateral or Share Collateral, as applicable, is not purchased by the Non-Defaulting Participants or any of them in accordance with the previous provisions of this clause, the Enforcer or Enforcement Administrator may proceed to sell or concur in selling the Collateral or Share Collateral to any third party and the provisions in the Joint Venture Agreement regulating assignment shall not apply to that sale.
(h)
The Defaulter shall execute all such assurances, deeds and instruments and do all such acts and things whatsoever as may be necessary to vest the relevant Collateral or Share Collateral, as applicable, in the purchasers.
4.7
Expert determination
If the Defaulter and the relevant Non-Defaulting Participants do not agree on the market value of the Defaulter's Collateral or Share Collateral, as applicable, within 45 days from the date of the notice given by the Enforcer:
(a)
the Defaulter and the Non-Defaulting Participants jointly (or any of them) must request an independent Expert as agreed between such Participants or failing agreement within 5 days after the expiration of such 45 day period by a person nominated by the Resolution Institute (or its successor) to determine the fair market value of the Defaulter's Collateral or Share Collateral, as applicable, as of the date of the notice given by the Enforcer;
(b)
notwithstanding the Resolution Institute Expert Determination Rules, the Expert must make a determination within 30 days of his or her appointment, or such longer period as all parties may agree.
(c)
the Expert must act as an expert, and not as an arbitrator, in accordance with the Resolution Institute Expert Determination Rules, or otherwise as all parties may agree;
(d)
the determination of the Expert is final and binding upon the Participants save in the event of fraud or manifest error; and
(e)
the costs of and associated with the appointment and expenses of the Expert must be borne by the Defaulter, which costs may be recovered as a debt in a court of competent jurisdiction.
4.8
Enforcement Administrator appointed after commencement of winding up
The power to appoint an Enforcement Administrator under this clause may be exercised notwithstanding that at the time when such an appointment is made an order has been made or a resolution passed for the winding up of, or the appointment of an administrator to, the Defaulter, in which case the Enforcer or Enforcement Administrator may not be able to act as the agent of the Defaulter.
4.9
Withdrawal
The Enforcer or Enforcement Administrator may at any time give up possession of the Defaulter's Collateral or Share Collateral, as applicable, and may at any time withdraw from any receivership or administration under this deed.
5.
Application of moneys received
5.1
Sale Proceeds
(a)
Any amount recovered by a Participant or the Manager as a result of enforcing a Security must be held in trust by the Enforcer or Enforcement Administrator for the benefit of all the Participants (other than the Defaulter) in proportion to their Percentage Shares to be applied in the Prescribed Order.
(b)
Each Participant irrevocably agrees that, if it becomes a Defaulter for a period of 14 days and all or part of its Percentage Share of Collateral or Share Collateral, as


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applicable, is sold in accordance with this deed, it must apply the net Proceeds from its Percentage Share of Collateral or Share Collateral in the Prescribed Order and each of the Non-Defaulting Participants and the Manager agrees to take all steps within its power to achieve this result.
5.2
Prescribed Order
Subject to the Chargee’s Priority Deed, the order in which all moneys received by an Enforcer or an Enforcement Administrator for or on behalf of a Defaulter under or by virtue of this deed must be applied (subject to any Law which applies and notwithstanding any other external agreement to the contrary, other than the Chargee’s Priority Deed) (Prescribed Order) is:
First:
In respect of the Proceeds of any Percentage Share of Products so taken (if any), in payment of all costs, charges and expenses required first to meet the Defaulter's obligations under any contracts then in existence for the sale of those Products;
Second:
In payment of all Enforcement Expenses incurred in or incidental to the exercise or attempted exercise of any Power or otherwise in relation to this deed;
Third:
In discharge of any Security Interest of the Defaulter having priority in law to this Security;
Fourth:
In or towards payment of Indebtedness of the Defaulter to the Manager;
Fifth:
In or towards payment of monies due by the Defaulter but unpaid under all Specified Documents;
Sixth:
In or towards payment of Indebtedness of the Defaulter to the Non-Defaulting Participants pari passu so that if the amount realised is insufficient to discharge all such Indebtedness the amount available shall be apportioned among the Non-Defaulting Participants in the proportion that its respective Joint Venture Interest bears to the total of the Joint Venture Interests of the Non-Defaulting Participants; and
Seventh:
Any surplus shall subject to any other proper claims be paid to the Defaulter or as directed by it.
5.3
Moneys actually received
In applying any moneys towards satisfaction of the Indebtedness of a Defaulter, the Defaulter must be credited only with so much of the money as is actually received by the person to whom the relevant Indebtedness is owed, such credit to date from the time of such receipt.
5.4
Conversion of currencies on application of moneys
In applying moneys towards satisfaction of the Indebtedness of a Defaulter, an Enforcer or Enforcement Administrator may purchase one currency with another, whether through an intermediate currency or not, whether spot or forward, in such manner and at such time as it thinks fit.
6.
Shares and other interests
6.1
Non-Defaulting Participant to retain all rights and dividends
Until a Non-Defaulting Participant becomes entitled to enforce its rights under this deed:
(a)
a Participant is entitled to exercise all rights and retain all dividends and other returns in respect of shares and other interests forming part of the Collateral and the Share Collateral;
(b)
the Participant may exercise any voting power in respect of such shares and other interests as it sees fit; and
(c)
an Enforcer or Enforcement Administrator may not exercise any voting power in respect of such shares and other interests without the Participant's consent.


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6.2
Cessation of Defaulter rights
Upon an Enforcer becoming entitled to enforce its rights under this deed, then, subject to the Chargee’s Priority Deed, all rights of the Defaulter under this clause cease and:
(a)
the Defaulter must procure that all dividends and other returns in respect of shares and other interests forming part of the Collateral and the Share Collateral (including, if applicable, the Share Proceeds) are paid directly to the Enforcer or Enforcement Administrator; and
(b)
the Enforcer or Enforcement Administrator becomes entitled to exercise:
(i)
all rights attaching to such shares and other interests; and
(ii)
in relation to the Share Collateral, if applicable, any Rights and voting rights in respect of the Relevant Securities (including voting at meetings and appointing proxies, and effecting conversion of the title to any Marketable Securities as to being certificated or uncertificated) and direct payment of all Share Proceeds to the Non-Defaulting Participant.
7.
Protection of third parties
7.1
Dealings with Enforcer or Enforcement Administrator
Any person dealing with an Enforcer or Enforcement Administrator:
(a)
need not enquire whether any event has occurred to authorise the Enforcer or Enforcement Administrator to act; and
(b)
is not affected by express notice that any such dealing is unnecessary or improper, and
(c)
may accept the receipt of the Enforcer or the Enforcement Administrator for any money as a discharge from any obligation of being concerned to see to the application or being liable or accountable for any loss or misapplication of that money.
7.2
Validity of receipt of Enforcer or Enforcement Administrator
The receipt of the Enforcer or Enforcement Administrator is deemed to be authorised and valid for the purpose of protecting any party to a dealing with an Enforcer or Enforcement Administrator, notwithstanding any irregularity or impropriety in any such dealing.
8.
Assignment
8.1
Assignment only as permitted by Joint Venture Agreement
A party must not assign or otherwise dispose of its rights and obligations under this deed otherwise than to a person to which it is permitted to assign its Joint Venture Interest under the Joint Venture Agreement. Subject to that requirement, this deed is binding upon and inures to the benefit of the parties to this deed and their respective successors and permitted assigns.
8.2
Release and replacement of Security on assignment
If a Participant which is not in default under this deed or the Joint Venture Agreement:
(a)
completes an assignment or other disposition of all or part of its Joint Venture Interest in accordance with the Joint Venture Agreement; and
(b)
provides to the other Participants and the Manager an instrument evidencing the grant of a Security Interest on the terms of the Security executed by the incoming assignee of the Joint Venture Interest and related Collateral and Share Collateral to their reasonable satisfaction registrable under the PPSA and the Mining Act; and


Page 16


(c)
undertakes at the cost of the incoming assignee to register, file or record the Security Interest or a notification of it under the PPSA and the Mining Act,
subject to compliance with Clause 12.11 of the Joint Venture Agreement, each other Participant and the Manager must release and discharge the Security constituted by this deed in respect of the Joint Venture Interest, other Collateral and Share Collateral assigned or disposed of.
8.3
Chargee’s Priority Deed
A Participant may assign by way of security, mortgage, charge or otherwise create a Security Interest (as principal or as surety) over that Participant's right, title and interest in the Collateral and the Share Collateral in accordance with clause 12.7 of the Joint Venture Agreement and not otherwise.
8.4
Rights of third parties on assignment
If any person (other than a party to this deed) has obtained a Joint Venture Interest or a Security Interest in any Collateral or Share Collateral and has not agreed with the parties to be bound by the Chargee's Priority Deed and this deed (Non-Permitted Secured Party) then, to the full extent permitted by Law:
(a)
notwithstanding any other provision of this deed, the money which the Non-Permitted Secured Party has a claim to and which is secured by such Security Interest ranks in priority after all other Security Interests granted pursuant to the Joint Venture Agreement; and
(b)
the Non-Permitted Secured Party has no rights against any party to this deed or the Joint Venture Agreement, and no other party has any obligations or duties to the Non-Permitted Secured Party under or arising out of this deed.
9.
Liability for loss and indemnity
9.1
Persons not liable to account
Neither a Non-Defaulting Participant nor an Enforcement Administrator is answerable or accountable for any loss of any kind whatever which may happen in or about the exercise or attempted exercise of any of the Powers except where the Non-Defaulting Participant nor an Enforcement Administrator has not conducted itself in good faith or has committed fraud or Gross Negligence or Wilful Misconduct.
9.2
Persons not liable for entry into possession
Neither an Enforcer nor an Enforcement Administrator is by reason of entering into possession of any part of the Collateral or Share Collateral liable:
(a)
to account as mortgagee in possession or for anything except actual receipts; or
(b)
for any loss upon realisation or for any default or omission for which a mortgagee in possession might be liable.
9.3
Indemnity
(a)
A Defaulter must, on demand, indemnify and keep indemnified all Enforcers and Enforcement Administrators from and against all Enforcement Expenses incurred in any way in enforcing the Security or in the exercise or attempted exercise of any Power in relation to that Defaulter or its Collateral or Share Collateral.
(b)
An Enforcer or Enforcement Administrator may obtain and pay out of any Proceeds all sums necessary to effect such indemnity.
(c)
Each indemnity in this deed is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this deed. It is not


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necessary for a party to incur expense or make payment before enforcing a right of indemnity under this deed.
10.
Warranties and further assurance
10.1
Warranties
Each Participant warrants to each other Participant and the Manager that it has, by its constitution, adequate corporate powers and authority to enter into this deed and to fulfil its obligations hereunder and that all necessary resolutions have been passed, and all necessary other corporate action has been taken in order to render this deed valid and binding on it.
10.2
Further assurance
Each Participant must from time to time do or cause to be done anything reasonably requested by any other Participant or the Manager:
(a)
to ensure this deed and each Security Interest created under it is fully effective, enforceable and perfected with the stated priority;
(b)
for more satisfactorily mortgaging, assuring or securing the relevant Collateral and Share Collateral to the other Participants; or
(c)
for aiding in the execution or exercise of any Power,
including, without limitation, the obtaining of any consent, authorisation, approval or exemption from any government or governmental agency or authority, the execution of any other document or agreement or the delivery of documents or evidence of title not inconsistent with this deed.
10.3
Power of Attorney
Each Participant for valuable consideration and by way of security irrevocably appoints each other Participant (other than a Defaulter) and each of their respective directors and secretaries severally its attorney to do all things which that Participant is obliged to do (but does not do) under or in relation to this deed.
11.
Application of PPSA to this deed
11.1
Exclusion of PPSA provisions
To the extent the law permits:
(a)
for the purposes of sections 115(1) and 115(7) of the PPSA:
(i)
an Enforcer or Enforcement Administrator need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4); and
(ii)
sections 142 and 143 are excluded; and
(b)
for the purposes of section 115(7) of the PPSA, an Enforcer or Enforcement Administrator need not comply with sections 132 and 137(3).
11.2
Exercise of Powers by Enforcers and Enforcement Administrators
If an Enforcer or Enforcement Administrator exercises a Power, that exercise is taken not to be an exercise of a Power under the PPSA unless the Enforcer or Enforcement Administrator states otherwise at the time of exercise. However, this clause does not apply to a Power which can only be exercised under the PPSA.
11.3
No notice required unless mandatory
To the extent the law permits, each Participant waives:


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(a)
its rights to receive any notice that is required by:
(i)
any provision of the PPSA (including a notice of a verification statement); or
(ii)
any other Law before an Enforcer or Enforcement Administrator exercise a Power; and
(b)
any time period that must otherwise lapse under any Law before an Enforcer or Enforcement Administrator exercises a Power.
If the Law which requires a period of notice or a lapse of time cannot be excluded, but the Law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the Law allows to be agreed (whichever is the longer).
However, nothing in this clause prohibits an Enforcer or Enforcement Administrator from giving a notice under the PPSA or any other Law.
11.4
Confidentiality
(a)
To the extent permitted by section 275 of the PPSA, each party agrees that information of the kind mentioned in section 275(1) of the PPSA constitutes 'Confidential Information' for the purposes of the Joint Venture Agreement, and accordingly that they will keep it confidential and not disclose it to any other person, except where disclosure is otherwise permitted or authorised under the Joint Venture Agreement.
(b)
Each party agrees not to exercise its rights to make any request of another party under section 275 of the PPSA (but this does not limit its rights to request information other than under section 275), to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.
11.5
Registration
Each Grantor consents to each Secured Party effecting a registration of a Financing Statement on the Personal Property Securities Register established under the PPSA.
12.
Goods and services tax
If all or any part of any payment by a Participant under this deed is the consideration for a taxable supply for GST purposes then:
(a)
subject to the payee first providing a tax invoice to that Participant, when making the payment the Participant must pay to the payee an additional amount equal to that payment multiplied by the appropriate rate of GST (currently 10%); and
(b)
to the extent that this clause does not cover a matter between the parties relating to GST, the provisions of the Joint Venture Agreement apply.
13.
Moratorium legislation
The provisions of any Law existing now or in the future which operate directly or indirectly:
(a)
to lessen, modify or vary in favour of a party its obligations under this deed; or
(b)
to delay, postpone, fetter or otherwise prevent or prejudicially affect the exercise by a party to this deed of any of the Powers conferred on it,
are negatived and excluded from this deed, to the fullest extent that each party may lawfully do so.
14.
Notices


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14.1
Form of Notice
Unless expressly stated otherwise in this deed, all notices, certificates, consents, approvals, waivers and other communications in connection with this deed (Notices) must be in writing, signed by the sender (if an individual) or an Authorised Officer of the sender and marked for the attention of the person identified in the Particulars or, if the recipient has notified otherwise, then marked for attention in the last way notified.
14.2
When Notices are taken to have been given and received
(a)
A Notice is regarded as given and received:
(i)
if delivered by hand, when left at the address given in the Particulars;
(ii)
if sent by pre-paid post, on the third day following the date of postage;
(iii)
if given by fax, on production of a transmission report by the machine from which the fax was sent which indicates that the fax was sent in its entirety to the recipient's fax number, unless the recipient informs the sender that the Notice is illegible or incomplete within 4 hours of it being transmitted; and
(iv)
if sent by email, at the time shown in the delivery confirmation report generated by the sender's email system.
(b)
A Notice delivered or received other than on a day on which trading banks are open for business in Perth (Business Day) or after 5.00pm (recipient's time) is regarded as received at 9.00am on the following Business Day. A Notice delivered or received before 9.00am (recipient's time) is regarded as received at 9.00am.
15.
Ancillary provisions
15.1
Entire agreement
This deed contains everything the parties have agreed in relation its subject matter. No party can rely on an earlier written document or anything said or done by another party, or by a director, officer, agent or employee of that party, before this deed was executed, save as permitted by law.
15.2
Severability
If any of the provisions of this deed are held to be invalid or unenforceable, the severance provisions of the Joint Venture Agreement apply to such invalidity or unenforceability.
15.3
Successors and permitted assigns
The provisions of this deed enure for the benefit of and are binding upon the Manager and each Participant and their respective successors and permitted assigns.
15.4
Exercise of rights
Subject to any contrary express provision of this deed:
(a)
an Enforcer or Enforcement Administrator may exercise a Power at its discretion, and separately or concurrently with another Power;
(b)
a single or partial exercise of a Power by the person does not prevent a further exercise of that or an exercise of any other Power; and
(c)
failure by the person to exercise or delay in exercising a Power does not prevent its exercise or operate as a waiver.
15.5
Waiver
A waiver of any right, power or remedy under this deed must be in writing signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect


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of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
15.6
Confidentiality
The provisions of the Joint Venture Agreement relating to confidentiality apply to information provided under this deed by one party to another as if set out in this deed.
15.7
Remedies cumulative
The rights and remedies provided in this deed are cumulative and not exclusive of any rights or remedies provided by Law.
15.8
Amendment
No modification, variation or amendment of this deed is of any force unless it is in writing and has been signed by each of the parties.
15.9
Counterparts
This deed may be executed in any number of counterparts and by different parties in separate counterparts. Each counterpart when so executed is deemed an original but all of which together constitute one and the same instrument.
15.10
Applicable law
(a)
This deed is governed by and must be construed in accordance with the laws of Western Australia.
(b)
Without limiting paragraph (a), to the extent permitted by law the Security is governed by the laws of Western Australia including the law of the Commonwealth of Australia as it applies in Western Australia.
(c)
The parties submit irrevocably to the non-exclusive jurisdiction of the Courts of Western Australia and all Courts competent to hear appeals from those Courts.
15.11
Costs
(a)
The Participant granting this Security is liable to pay the reasonable costs of preparing and registering this deed and any other deed, instrument or other document provided for or contemplated by this deed, including filing and registration fees, and stamp duty.
(b)
Each party must pay its own costs of reviewing and executing this deed and any other document provided for or contemplated by this deed.


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Signing page
EXECUTED as a deed.


Executed by Wodgina Lithium Pty Ltd in accordance with Section 127 of the Corporations Act 2001
 
 
 
 
 
 
 
 
Signature of director
 
Signature of director/company secretary
(Please delete as applicable)
 
 
 
Name of director (print)
 
Name of director/company secretary (print)


Executed by Albemarle Wodgina Pty Ltd in accordance with Section 127 of the Corporations Act 2001
 
 
 
 
 
 
 
 
Signature of director
 
Signature of director/company secretary
(Please delete as applicable)
 
 
 
Name of director (print)
 
Name of director/company secretary (print)


Executed by MARBL Lithium Operations Pty Ltd in accordance with Section 127 of the Corporations Act 2001
 
 
 
 
 
 
 
 
Signature of director
 
Signature of director/company secretary
(Please delete as applicable)
 
 
 
Name of director (print)
 
Name of director/company secretary (print)






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Schedule 4
Special Resolutions
Any of the following matters and things may be done, decided or authorised by the Management Committee, but only by Special Resolution:
(a)
The disposition or surrender or relinquishment of a Tenement other than as required by the Mining Act or terms and conditions of the Tenement.
(b)
A sale, lease or exchange of all or substantially all of the Joint Venture Assets or merger or consolidation of any of the Project Facilities or the Joint Venture Operations with any other business or entity.
(c)
The disposal or sale of any Project Facilities referred to in clause 5.1(b)(xiii) or other Joint Venture Assets, the written down book value of which exceeds $500,000.
(d)
The appointment of the Manager or any successor Manager.
(e)
Changing the Manager’s remuneration.
(f)
Any of the following actions by the Manager:
(i)
borrowing of money;
(ii)
entering into any financing arrangement or any commitment with respect to financial derivatives; or
(iii)
any leasing or finance leasing of assets.
(g)
Granting by the Manager of any Security Interest over any or all or substantially all of the Joint Venture Assets other than Permitted Security Interests or as otherwise permitted by this agreement.
(h)
The initiation, defence, compromise or settlement of any court or arbitration proceedings affecting or relating to the Joint Venture Operations or Joint Venture Assets including any agency proceedings involving the Manager or otherwise where the total amount in controversy (exclusive of interest, costs and legal costs) is reasonably estimated by the Manager to exceed $1,000,000 (provided that the Manager may initiate or defend a court or arbitration proceeding affecting or relating to the Joint Venture Operations or Joint Venture Assets if it reasonably decides that it must take immediate action in order to protect the rights of the Participants).
(i)
The approval of any Closure Plan prior to submission to any Government Agency.
(j)
The ratification of expenditure outside of the authority of the Manager.
(k)
The processing of any spodumene concentrate in the Refinery Plant that is derived from lithium recovered or sourced from outside the Tenements.
(l)
The entry into or amendment of any contract with a Third Party or an Affiliate of any Participant to toll spodumene concentrate derived from lithium recovered or sourced from outside the Tenements through the Refinery Plant.

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(m)
Any other matter which the Management Committee may from time to time, by Special Resolution, resolve shall only be done or authorised by such a vote and any other matter which is expressed under this agreement to require a Special Resolution.
(n)
The construction of one or more new separate lithium hydroxide monohydrate plants at other locations on the Joint Venture Area in addition to the Refinery Plant.


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Schedule 5
Accounting Procedure

1
General
1.1
Definitions
Terms used herein shall have the meanings ascribed to them in the Wodgina Lithium Joint Venture Agreement (UJV Agreement) and in addition:
Material includes personal property, equipment and supplies acquired or held for use on the Site.
Rate of Depreciation means the rate of depreciation for the time being allowed under the generally accepted accounting principles.
2
Chargeable costs and expenditures
2.1
Reasonable and necessary costs
Subject to limitations described herein or in the UJV Agreement, the Joint Venture accounts shall be charged by the Manager with all costs reasonably and necessarily incurred in carrying out the Joint Venture including, without limitation, the cost of the following items described in clause 2.2 of this Accounting Procedure.
2.2
Direct costs
(a)
rentals and royalties: rentals, rates, royalties, renewal and extension fees, in respect of the Tenements and the Joint Venture Operations;
(b)
labour:
(i)
salaries and wages of employees directly engaged in the conduct of the Joint Venture Operations including salaries or wages paid to employees such as geologists, or engineers and other employees who are temporarily assigned to and directly engaged in the conduct of the Joint Venture Operations but only pro rata to their time directly engaged;
(ii)
holiday, vacation, sickness and disability benefits, and other customary allowances applicable to the salaries and wages chargeable under clause 2.2(b)(i) including any taxes liable or due to be paid in respect of such customary allowances. Costs under this clause 2.2(b)(ii) may be charged on a by “percentage assessment” on the amount of such salaries and wages. If percentage assessment is used, the rate shall be based on pre-approved standard cost rates as approved by the Management Committee and revised at the end of each quarter to ensure standard costs align with actual costs on a twelve month rolling basis;
(iii)
expenditures or contributions made pursuant to assessments imposed by governmental authorities which are applicable to the Manager’s labour costs as provided under clause 2.2(b); and

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(iv)
reasonable business expenses of those employees whose salaries and wages are chargeable to the Joint Venture accounts under clause 2.2(b)(i) and for which expenses the employees are reimbursed under the Manager’s usual practice;
(c)
employee benefits: the Manager’s cost of plans for employees’ group life insurance, hospitalisation, superannuation, pension, retirement, share purchase, bonus and other benefit plans of a like nature, to the extent directly applicable to the Manager’s labour costs entitled to be charged under clause 2.2(b)(i);
(d)
consumable Material: consumable Material purchased or furnished by the Manager for use on the Joint Venture Area. So far as it is reasonable, practical and consistent with efficient and economical operations, only such Material shall be purchased for or transferred to the Joint Venture Assets as required for immediate use and the accumulation of surplus stocks shall be avoided;
(e)
transportation: transportation of employees and Material necessary for the conduct of the Joint Venture Operations, but subject to the following limitations:
(i)
if Material is moved to the Joint Venture Area, no charge shall be made in respect of any distance greater than the distance from the nearest reliable supply store or railway receiving point where like Material is available, except by agreement with the Participants; and
(ii)
if surplus Material is moved to the Manager’s warehouse or other storage point, no charge shall be made to the Joint Venture accounts for a distance greater than the distance to the nearest reliable supply store or railway receiving point, except by agreement with the Participants. No charge shall be made to the Joint Venture accounts for moving Material to other properties belonging to the Manager, except by agreement with the Participants;
(f)
services:
(i)
outside services: the cost of contract services and utilities procured from outside sources;
(ii)
use of the Project Facilities: the operating cost of the Manager’s exclusively owned equipment and facilities;
(iii)
professional services: the cost of procuring contract, accounting, auditing and other outside professional services by the Manager for logistic and administrative support of Joint Venture Operations;
(g)
damages/losses to Joint Venture Assets and equipment: the Manager shall be entitled to recover replacement or repair costs resulting from damages or losses incurred by fire, explosion, flood, storm or any other causes not controllable by the Manager through the exercise of reasonable diligence but it shall not be entitled to administrative overheads on such costs. The Manager shall furnish the Participants written notice of damage or loss howsoever caused as soon as practicable after report of the same has been received by the Manager;
(h)
legal costs, litigation, judgments and claims:
(i)
all legal costs and expenses including those of litigation, or legal services necessary or expedient for the protection of the Joint Venture Assets, together with all judgments obtained against the Participants or any of them

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and any agreed settlement insofar as the same relate to the Joint Venture or the subject matter of the UJV Agreement; and
(ii)
actual expenses incurred by any Participant or Participants in securing evidence for the purpose of defending or prosecuting any action or claim or negotiating any settlement relating to the Joint Venture or the subject matter of the UJV Agreement;
(i)
taxes: all taxes (except income tax, aside from income tax due to or from the Manager) rates, levies and assessment of every kind and nature levied, assessed or imposed upon or in connection with the Joint Venture Assets or any part thereof, the production therefrom or the operation thereof, which shall have been paid for the benefit of the Participants;
(j)
insurance: premiums paid for insurance required to be carried for the benefit of the Joint Venture together with all expenditures incurred and paid in settlement of any and all losses, claims, damages, judgments and other expenses, including legal services, not recovered from the insurer;
(k)
camp expense: the expense of using, operating and maintaining all necessary camps and housing facilities for employees, consultants and contractors of the Manager in connection with Joint Venture Operations. When other operations are served by those facilities, the expense, including depreciation, less any revenue therefrom, shall be pro-rated on some equitable basis determined by the Management Committee against all operations served; and
(l)
other expenditure: any other expenditures which are not of a capital nature and which are not covered or dealt with in the foregoing provisions of this clause 2.2 and which are reasonably incurred by the Manager for the necessary and proper conduct of the Joint Venture Operations.

3
Basis of charges to Joint Venture accounts
3.1
Purchases
Material purchases and all services procured shall be charged at the net price paid, after deduction of all discounts received.
3.2
Material furnished by the Manager
Material required for Joint Venture Operations shall be purchased for direct charge to the Joint Venture accounts whenever practicable, except that the Manager may furnish such Material from its stocks under the following conditions:
(a)
new Material: new Material (Condition A) transferred from a Manager’s warehouse or other properties shall be priced at the price paid including transport, insurance and other proper ancillary costs and allowing for any discount; and
(b)
used Material:
(i)
Material which is in sound and serviceable condition and is suitable for re-use without reconditioning shall be classed as Condition B Material and priced at [#]% of current new price;

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(ii)
Material which cannot be classified as Condition B but which:
(A)
after reconditioning will be further serviceable for original function as good secondhand Material shall be classified as Condition B Material and to which clause 3.2(b)(i) shall apply; or
(B)
is serviceable for original function but substantially not suitable for reconditioning, shall be classified as Condition C Material and priced at [#]% of current new price.
(iii)
There may also be cases where some items of Material, due to their unusual condition, may be fairly and equitably priced by the Manager, subject to approval of all Participants.
Current new price, wherever used in this clause 3.2, shall be the price FOB the nearest reputable supply store or railway receiving point, where such Material is available at current replacement costs of the same kind of Material.
3.3
Premium prices
Whenever Materials are not readily obtainable at the customary supply point and at prices specified in clauses 3.1 and 3.2 because of national emergencies, strikes or other unusual causes over which the Manager has no control, the Joint Venture accounts shall be charged for the required Materials on the basis of the direct cost and expense incurred in procuring such Materials, in making it suitable for use, and in moving it to the location, provided that notice in writing is furnished to all Participants of the proposed charge prior to billing for the Material acquired pursuant to this provision.
3.4
Warranty of Material furnished by a Manager
The Manager does not warrant the Material furnished, but the Participants are entitled to the benefit of the dealer’s or manufacturer’s guarantee or warranty. In case of defective Material, credit shall not be passed until adjustment has been received by the Manager from the manufacturers or their agents.
4
Disposal of Material
4.1
Manager’s rights of disposal
The Manager shall be under no obligation to purchase the interests of the Participants in any surplus new or secondhand Material. Major items shall not be removed by the Manager from the Joint Venture Assets without the approval of the Participants. The Manager shall not sell major items of Material to a third party without giving the Participants an opportunity to purchase the same at the price offered. The Manager shall have the right to dispose of normal accumulations of scrap Material from the Joint Venture Assets and any moneys received shall be credited to the Joint Venture accounts.
4.2
Material purchased by Participants
Material purchased by any Participant shall be invoiced by the Manager and paid for in the later of 10 Business Days or next Payment of Called Sum. The Manager shall credit the purchase price to the Joint Venture accounts and include details of the sale in the next periodic statement of operations.

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4.3
Division in kind
Division of Material in kind, if made between the Manager and the Participants, shall be in proportion to their respective interests in such Material. Each Participant will thereupon be charged individually with the value of the Material received or receivable by each Participant, and corresponding credits will be made by the relevant Manager to the Joint Venture accounts. Such credits shall appear in the next periodic statement of operations.
4.4
Sales to third parties
Sales to third parties of Material from the Joint Venture Assets shall be credited by the Manager to the Joint Venture accounts at the net amount collected from the purchaser. Any claims by the purchaser for defective Material shall be charged back to the Joint Venture accounts, if and when paid by the Manager.
4.5
Basis of pricing Material transferred from Joint Venture Assets
Jointly owned Material sold to the Manager, unless otherwise agreed shall be valued on the following basis of condition and price (current new price as used in the following clauses shall have the same meaning and be computed on the same basis as the current new price in clause 3.2):
(a)
new Material: new Material (Condition A) being new Material purchased or procured for the Joint Venture Assets but never used thereon, at 100% of current new price (plus GST, if any);
(b)
good used Material: good used Material (Condition B) being good serviceable Material which is further useable without reconditioning:
(i)
at [#]% of the current new price if the Material was charged to the Joint Venture accounts as new; or
(ii)
at [#]% of current new price if the Material was originally charged to the Joint Venture accounts as secondhand at 75% of new price;
(c)
other used Material: other used Material being Material which:
(i)
after reconditioning will be further serviceable for original function as good secondhand Material shall be treated as Condition B as provided in clause 4.5(b); or
(ii)
is serviceable for original function but substantially not suitable for reconditioning (Condition C), at [#]% of the current new price;
(d)
bad order Material: bad order Material (Condition D), being Material not further useable for its original function but for possible other service, at a value commensurate with its use;
(e)
scrap: scrap, being obsolete and unserviceable Material (Condition E), at prevailing scrap prices in the area;
(f)
other cases: there may also be cases where some items of Material due to their unusual condition should be fairly and equitably priced by the Manager subject to approval of the Participants; or
(g)
temporarily used Material: when the use of Material is temporary and its service to the Joint Venture does not justify the reduction in price, such Material shall be

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priced on the basis that will have a net charge to the Joint Venture accounts consistent with the value of the service rendered.
5
Stocktakes
5.1
Periodic stocktake
Periodic stocktakes of Material which is ordinarily considered controllable shall be taken by the Manager at reasonable intervals but at least once every month.
5.2
Notice
Notice of intention to perform a stocktake of inventory (other than the regular monthly stocktakes) shall be given by the Manager at least fourteen days before any stocktake is to begin, so that the Participants may be represented when any such stocktakes are made.
5.3
Failure to be represented
Failure of the Participants to be represented at the physical stocktake shall bind the Participants to accept the inventory balances as taken by the Manager, who shall in that event furnish the Participants with a copy of the stocktake results.
5.4
Reconciliation of inventory
Reconciliation of inventory stocktakes, with resulting variances taken to profit or loss in the Joint Venture operating accounts, shall be made by the Manager and a list of overages and shortages shall be provided to the Participants.

5.5
Stocktake expenses
The expense of the Participants’ nominee present at the taking of regular stocktakes shall not be charged to the Joint Venture accounts but the expenses incurred by the Manager shall be so charged.
5.6
Special stocktakes
Special stocktakes of inventory may be taken (at the expense of the purchaser) whenever there is any sale or change of a Joint Venture Interest. Both the selling Participant and the purchaser may be represented and shall be governed by the stocktakes so taken.
6
Disputes
Any disputes between the Manager and any Participant or between Participants as to the correctness of entries to the Joint Venture accounts including, without limitation, as to the value of Material for the purposes of clauses 3.2 and 4.5 and inventory adjustment pursuant to clause 5.4, shall be referred to the Auditor for determination and the provisions of clause 17 of the UJV Agreement shall, with necessary modification, apply as if the Auditor was the Expert.


Gilbert + Tobin
 
 page | 103



Schedule 6
Deed of Assignment and Assumption
Date
[insert date]
[insert party name and ACN or applicable registration number] of [insert address] (New Participant)
[insert party name and ACN or applicable registration number] of [insert address] (Assignor)
[insert party name and ACN or applicable registration number] of [insert address] (Continuing Participant(s))
MARBL Lithium Operations Pty Ltd ACN 637 077 608 of [insert address] (Manager)
Recitals
D    The Assignor and the Continuing Parties are parties to the Agreement.
E    The Joint Venture Interests of the Participants before the Effective Date are set out in Part A of the Attachment.
F    The Assignor has agreed to assign the Assigned Interest to the New Participant and the New Participant has agreed to assume the obligations of the Assignor to the extent of the Assigned Interest, on and from the Effective Date.
G    Clause 12 of the Agreement provides that any assignment by a Participant of the whole or any part of its Joint Venture Interest shall be subject to the satisfaction of certain conditions precedent (including that the New Participant enter into this deed).
H    The Continuing Participant(s) consents to the assignment and assumption evidenced by this deed.
1
Defined terms and interpretation
(j)
Unless otherwise separately defined in this deed, capitalised terms have the meaning given to them in the MARBL Joint Venture Agreement – Wodgina Lithium Project between the Assignor and the Continuing Parties dated [insert date] (Agreement), and in addition:
Assigned Interest means [ ]% of the Assignor's Joint Venture Interest (representing a [ ]% Joint Venture Interest) under the Agreement.
Attachment means Attachment A, annexed to and forming part of this deed.
Continuing Parties means the Continuing Participant(s) and the Manager. [include Assignor if not all of the Assignor's Joint Venture Interest is being assigned/]
Effective Date means [insert date/description].
(k)
[Schedule 1, clause 1.2] of the Agreement applies in the interpretation of this deed.
1
Assignment
With effect on and from the Effective Date:



(a)
the Assignor assigns to the New Participant, and the New Participant accepts, the Assigned Interest;
(b)
the Continuing Participant(s) consents to the assignment of the Assigned Interest from the Assignor to the New Participant; and
(c)
the parties agree that the Joint Venture Interests upon such assignment occurring will be those set out in Part B of the Attachment.
2
Assumption
With effect on and from the Effective Date, the New Participant:
(a)
is entitled to all of the rights and benefits of the Assignor in its capacity as a Participant to the extent of the Assigned Interest and may hold and deal with the Assigned Interest without any interruption or disturbance from the Assignor;
(b)
assumes all of the liabilities and obligations of the Assignor in its capacity as a Participant to the extent of the Assigned Interest that vest, mature or accrue on and from the Effective Date and undertakes to discharge those liabilities and obligations as and when required under the Agreement; and
(c)
agrees to be bound by the terms of the Joint Venture Documents.
3
Acknowledgment
Each of the Continuing Parties:
(a)
acknowledges and agrees that on and from the Effective Date, the New Participant is entitled to all of the rights and benefits of the Assignor referred to in clause 3(a); and
(b)
on and from the Effective Date, agrees to be bound by the terms of the Agreement as if the New Participant was named in them as a party in lieu of the Assignor to the extent of the Assigned Interest.
4
Release
(a)
On and from the Effective Date, the Continuing Parties release and discharge the Assignor from all claims, demands and liabilities under, relating to or connected with the Agreement or the Assigned Interest which vest, mature, arise or accrue on or after the Effective Date.
(b)
The Assignor remains liable to the Continuing Parties for the Assignor's Assigned Interest share of any liabilities or obligations, financial or otherwise which have vested, matured, arisen or accrued in relation to or in connection with the Agreement prior to the Effective Date.
5
Representations and warranties



(a)
Each party represents and warrants to each of the other parties that each of the following statements is true, accurate and complete and not misleading as at the date of this deed:
(i)
it is duly incorporated and validly exists under the law of its place of incorporation;
(ii)
the execution and delivery of this deed has been properly authorised by all necessary corporate action;
(iii)
it has full corporate power and lawful authority to execute and deliver this deed and to consummate and perform or cause to be performed its obligations under this deed;
(iv)
this deed constitutes a legal, valid and binding obligation on it enforceable in accordance with its terms;
(v)
the execution, delivery and performance by it of this deed does not or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with or result in a breach of or default under:
(A)
any provision of its constitution;
(B)
any material term or provision of any security arrangement (including any Security Interest), undertaking, agreement or deed to which it is bound;
(C)
any writ, order or injunction, judgement, or law to which it is a party or is subject or by which it is bound;
(vi)
no Insolvency Event has occurred in relation to it; and
(vii)
so far as it is aware, there are no facts, matters or circumstances which give any person the right to apply to liquidate it or wind it up.
(b)
Each party acknowledges that each other party have each entered into this deed in reliance on the warranties provided in clause 6(a).
(c)
Each of the warranties in clause 6(a) must be construed independently and is not limited by reference to another warranty provided in clause 6(a).
(d)
Each party indemnifies each other party against any Loss which the other parties may incur to the extent caused by any breach of the warranties provided in clause 6(a).
6
Notices
For the purposes of Clause [15] of the Agreement, the notice details of the New Participant are as follows:
Delivery Address:    [insert]
Postal Address: [insert]
Email: [insert]



Attention: [insert]
7
Ancillary provisions
(a)
This deed is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter. Each party represents and warrants that it has not relied on any representations or warranties about the subject matter of this deed except as expressly provided in this deed.
(b)
Any term of this deed which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this deed is not affected.
(c)
No waiver of a right or remedy under this deed is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted. A single or partial exercise of a right or remedy under this deed does not prevent a further exercise of that or of any other right or remedy. Failure to exercise or delay in exercising a right or remedy under this deed does not operate as a waiver or prevent further exercise of that or any other right or remedy.
(d)
No term of this deed merges on completion of any transaction contemplated by this deed. This clause 8(d) survives termination or expiry of this deed together with any other term which by its nature is intended to do so.
(e)
No variation of this deed is effective unless made in writing and signed by each party.
(f)
This deed may be executed in any number of counterparts and signatures on behalf of a party may be on different counterparts.
(g)
Except as expressly provided in this deed, each party must, at its own expense, do all things reasonably necessary to give full effect to this deed and the matters contemplated by it.
8
Governing law
(a)
This deed is governed by the laws of Western Australia.
(b)
The courts having jurisdiction in Western Australia have exclusive jurisdiction to settle any dispute arising out of or in connection with this deed.

Executed as a deed.
[insert execution block]










Attachment A
Part A    Joint Venture Interests before the Effective Date





Part B    Joint Venture Interests after the Effective Date





Schedule 7
Kemerton Mortgages




Incorporated provisions
1.
Defined terms & interpretation
1.1
Defined terms from Deed of Cross-security
Terms defined in (or incorporated by reference into) the Deed of Cross-security (as defined below) have the same meanings when used in this document unless otherwise defined in this document. Parties to the Deed of Cross-security referred to by short form name in this document are more fully described in the Deed of Cross-security.
1.2
Other defined terms
In this document:
Attorney means an attorney appointed by the Mortgagor under this document.
Authorisation means any consent, authorisation, registration, filing, agreement, notarisation, certificate, permit, licence, approval, authority or exemption of, from or required by, a Government Agency or required by law. Where intervention or action of a Government Agency within a specified period would fully or partly prohibit or restrict something by law, Authorisation includes the expiry of that period without that intervention or action.
Authorised Representative means a director or company secretary, or:
(a)
in respect of the Mortgagor, a person it notifies to the Mortgagee (with a certified copy of that person's specimen signature) as being its authorised representative for the purposes of the Transaction Documents where the Mortgagee has no notice of revocation of that authority; and
(b)
in respect of the Mortgagee, a person whose title or acting title includes 'manager', 'director', 'executive', 'chief', 'head', 'counsel' or 'president', or a person notified to the other parties as being its authorised representative for the purposes of the Transaction Documents.
Deed of Cross-security means the deed of cross-security dated on or about the date of this document between Wodgina Lithium Pty Ltd ACN 611 488 932, Albemarle Wodgina Pty Ltd ACN 630 509 303 and MARBL Lithium Operations Pty Ltd ACN 637 077 608.
Default means an event or circumstance specified in clause 5.1.
Dollars and A$ mean the lawful currency of Australia.
Environmental Law means a standard set by a Government Agency or law concerning any aspect of health, safety, planning or the use, protection, conservation or contamination of the environment.
Environmental Liability means any obligation imposed on, or Loss of, the Mortgagor (or any of its officers), Mortgagee (or any of its officers), a Receiver or any occupier of the Mortgaged Property under an Environmental Law, due to activities carried on during the ownership or occupation of the Mortgaged Property by any person at any time.
Excluded Tax means a Tax imposed by a jurisdiction on, or calculated by reference to, the net income of Mortgagee in a jurisdiction because Mortgagee has a connection with that jurisdiction, other than a Tax:
(a)
calculated by reference to the gross amount of a payment (without allowing for any deduction) derived by Mortgagee under a Transaction Document or any other document referred to in a Transaction Document; or



(b)
imposed because Mortgagee is taken to be connected with that jurisdiction solely by being a party to a Transaction Document or a transaction contemplated by a Transaction Document.
External Administrator means an 'administrator', 'controller' or 'managing controller' (each as defined in the Corporations Act), trustee, provisional liquidator, liquidator or any other person (however described) holding or appointed to an analogous office or acting or purporting to act in an analogous capacity.
Government Agency means any government or governmental, semi-governmental, administrative, public, regulatory or judicial entity, body, department, commission, agency or authority.
GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guarantee means a guarantee, indemnity, letter of credit, legally binding letter of comfort or other obligation of any kind:
(a)
to provide funds (whether by the advance or payment of money, the purchase of or subscription for shares or other securities, the purchase of assets or services, or otherwise) for the payment or discharge of;
(b)
to indemnify any person against the consequences of default in the payment of; or
(c)
to be responsible for,
an obligation or monetary liability of another person or the assumption of any responsibility or obligation in respect of the solvency or financial condition of another person.
Improvements includes all buildings, fences, structures, fixtures and fittings on the Real Property, whether built or acquired before or after this document is executed.
Insurance Policy means each policy relating to the insurance required to be obtained or maintained under a Transaction Document.
Joint Venture Agreement means the MARBL lithium joint venture agreement dated 1 November 2019 between Wodgina Lithium Pty Ltd ACN 611 488 932, Albemarle Wodgina Pty Ltd ACN 630 509 303 and MARBL Lithium Operations Pty Ltd ACN 637 077 608.
Lease means any arrangement whereby an asset may be used, occupied, operated or managed by a person other than the owner. It includes a lease, licence, charter, hire purchase or hiring arrangement.
Liquidation means:
(a)
a winding up, dissolution, liquidation, provisional liquidation, administration, bankruptcy or other proceeding for which an External Administrator is appointed, or an analogous or equivalent event or proceeding in any jurisdiction; or
(b)
an arrangement, moratorium, assignment or composition with or for the benefit of creditors or any class or group of them.
Manager means MARBL Lithium Operations Pty Ltd ACN 637 077 608.
Mortgage means the mortgage of the Mortgaged Property and the mortgage by assignment of the Rent created under this document.
Mortgaged Property means:
(a)
the Mortgagor's estate or interest from time to time in:
(i)
the Real Property and where the context requires, the Real Property itself, together with the benefit of any easements, paths, rights of way, mines, quarries, water, trees, timber and other benefits on or used with the Real Property;



(ii)
any present or future Improvements; and
(iii)
any present or future Lease of the Real Property or any part of it, together with any extension or renewal of that Lease, and any agreement to enter into a new Lease of the same property;
(b)
any other property deemed by this document to form part of the Mortgaged Property; and
(c)
any certificate, registration, title or other evidence of ownership of, or rights to, anything described in a paragraph above of this definition.
Notice means a notice, demand, consent, approval or communication given in accordance with clause 12.
Participant means a Mortgagee party who is not the Manager and their respective successors and permitted assigns and (where applicable) legal personal representatives of any person which at any time hereafter becomes a Mortgagee who is not the Manager, and each of those persons constitutes a Participant for the purposes of this document.
Permitted Security Interest means:
(a)
each Security;
(b)
a Security Interest consented to by the Mortgagee in writing (unless the consent was conditional and any of the conditions are not complied with); and
(c)
a lien or charge arising by operation of law in the ordinary course of ordinary business (unless the lien or charge secures overdue debts).
Preference has the meaning given to that term in clause 14.4.
Potential Default means any event, thing or circumstance which would become a Default with the giving of notice, the making of a determination under a Transaction Document or the passage of time (or any combination of those things).
Power means any power, right, authority, discretion or remedy conferred on the Mortgagee or an External Administrator by this document or by law in relation to this document.
Real Property means the real property described in the mortgage to which this annexure is annexed.
Receiver means a receiver or receiver and manager appointed under this document.
Records means, in relation to a person, all information relating in any way to that person's Mortgaged Property or any transaction entered into by the person in respect of the Mortgaged Property, whether recorded electronically, magnetically or otherwise.
Related Body means, regardless of any body's trustee or other capacity, a body corporate which would be related under section 50 of the Corporations Act on the basis that the term 'subsidiary' in that section had the meaning given to that term in this document.
Security means:
(a)
this document;
(b)
Deed of Cross-security; and
(c)
each other present or future Security Interest, Guarantee or other document or agreement created or entered into as security (directly or indirectly) for the payment of any Indebtedness or the performance of any obligation in favour of Mortgagee under a Transaction Document.
State means the jurisdictional state or territory of Australia in which the Mortgaged Property is situated.



Subsidiary has the meaning given in the Corporations Act. Also:
(a)
an entity is a Subsidiary of another entity if controlled by that other entity for the purposes of section 50AA of the Corporations Act;
(b)
a trust may be a Subsidiary (and a unit or other beneficial interest in the trust is to be treated as a share accordingly); and
(c)
an entity is to be treated as a Subsidiary of a trust as if that trust were a corporation.
Tax means any tax, levy, duty, rate, impost, charge, deduction or withholding (and any related penalty, fine, fee or interest) imposed, levied or assessed by a Government Agency. It includes stamp duty, GST and any transaction taxes and duties.
Title Documents means each certificate, confirmation, grant, assurance, conveyance, deed and other document of title or evidencing title to, or rights to acquire, possess, use or dispose of, any Mortgaged Property. It includes any Lease, will, probate or abstract of title.
Torrens Legislation means the statutes of Western Australia relating to the disposition, devolution or acquisition of land under Torrens title or evidencing title to that land.
Transaction Document means:
(a)
this document;
(b)
the Joint Venture Agreement;
(c)
each Security;
(d)
a document that the Mortgagor and the Mortgagee agree in writing is a 'Transaction Document'; and
(e)
a document entered into or given under or in connection with, or for the purpose of amending or novating, any document referred to in a paragraph above of this definition.
1.3
Interpretation
The provisions of clause 1.2 (Interpretation) of the Deed of Cross-security are incorporated in, and apply to, this document as if set out in full with any necessary amendments. Also, a reference to 'this document' means this annexure together with any instrument of mortgage which is signed by the Mortgagor and to which this annexure is annexed.
2.
Mortgage
2.1
Creation
The Mortgagor, as legal and beneficial owner mortgages its interest in the Mortgaged Property to the Mortgagee as security for payment of the Indebtedness.
2.2
Ranking
The Mortgage ranks in priority ahead of all other Security Interests over the Mortgaged Property, other than a Permitted Security Interest preferred by law or as agreed by the Mortgagee in writing.
2.3
Continuing security and obligations
The Mortgage is a continuing security until the Mortgagee releases all Mortgaged Property from the Mortgage, despite any intermediate payment, discharge, settlement, release or other matter. The Mortgagor's obligations under this document continue despite any full or partial release of Mortgaged Property and no full or partial release of Mortgaged Property will release the Mortgagor from personal liability under this document until all Indebtedness has in fact been received by the Mortgagee and is not liable to be disgorged.
2.4
Release of Mortgaged Property



The Mortgagor may require the Mortgagee to release the Mortgaged Property from the Mortgage if the Mortgagee is satisfied that:
(a)
all Indebtedness has been irrevocably paid in full and all commitments which might give rise to Indebtedness have terminated; and
(b)
no amount will subsequently become Indebtedness due to a Preference.
3.
Representations and warranties
3.1
Representations and warranties
The Mortgagor represents and warrants to the Mortgagee, except as to matters disclosed by it to the Mortgagee and accepted by the Mortgagee in writing, that:
(a)
(other representations and warranties) all of its representations and warranties in the Transaction Documents to which it is expressed to be a party are true, correct and not misleading when made or repeated (or if not yet made, will be true, correct and not misleading when made or repeated);
(b)
(ownership of Mortgaged Property) it is a joint legal owner and, subject to the terms of the Joint Venture Agreement, joint beneficial owner of the Mortgaged Property, and it will be the joint legal owner and, subject to the terms of the Joint Venture Agreement, joint beneficial owner of any property or asset it acquires as Mortgaged Property;
(c)
(indefeasible title) it has an absolute and indefeasible title to the Mortgaged Property, and it will have an absolute and indefeasible title to any interest in land it acquires as Mortgaged Property; and
(d)
(Security Interests) the Mortgaged Property is free from any Security Interest other than a Permitted Security Interest.
3.2
Repetition
The Mortgagor repeats each representation and warranty in this clause 3 with reference to the facts and circumstances on each date on which any of the Indebtedness is paid.
3.3
Reliance and survival
The Mortgagor acknowledges that:
(a)
the Mortgagee has entered into the Transaction Documents in reliance on the representations and warranties in this clause 3; and
(b)
those representations and warranties survive execution and delivery of the Transaction Documents and the provision of financial accommodation under them.
4.
Undertakings
4.1
General undertakings
The Mortgagor must:
(a)
(Indebtedness) pay the Indebtedness at the times and in the way specified in the Joint Venture Agreement; and
(b)
(no Default) ensure that no Default occurs.
4.2
Further assurances
The Mortgagor must do (and must use its reasonable endeavours to procure that anyone else who has an interest in the Mortgaged Property or who claims under or in trust for the Mortgagor does) whatever the Mortgagee requires to better secure the Mortgaged Property for payment of the Indebtedness, and to enable the better exercise of any Power, including:
(a)
granting a legal or statutory mortgage over the Real Property;



(b)
paying any Taxes on and registering the Mortgage with the priority required by the Mortgagee; and
(c)
executing and delivering to the Mortgagee transfers in relation to any of the Mortgaged Property, undated and blank as to transferee and consideration.
4.3
Registering the Mortgage
(a)
If required to do so by the Mortgagee, the Mortgagor must immediately do or cause to be done all things necessary to cause this document to be registered under the Torrens Legislation.
(b)
If this document cannot be registered because it is not in registrable form, the Mortgagor must do or cause to be done all things necessary to render this document in registrable form. If so required by the Mortgagee, the Mortgagor must grant to the Mortgagee another Security Interest over the Mortgaged Property in registrable form.
5.
Default and consequences
5.1
Specified Defaults
A Default occurs if an event or circumstance specified as a 'Default' or 'Event of Default' (however described) in a Transaction Document occurs (whether or not within the Mortgagor's control).
5.2
Acceleration of Indebtedness
While a Default subsists, the Mortgagee may by notice to the Mortgagor declare that all or any part of the Indebtedness is immediately due and payable. On receipt of that notice, the Mortgagor immediately must pay that Indebtedness to the Mortgagee.
6.
Enforcement
6.1
Enforcement by Participant
If the Mortgagor goes into and continues to be in Default for a period of 14 days, each Participant may:
(a)
exercise each and every Power provided in this document to enforce the Mortgage granted by the Mortgagor and use and apply any moneys realised from the exercise of any such power or remedy as provided in this document; or
(b)
subject to this deed, request and authorise the Manager in writing to enforce each Participant's rights under this document on behalf of that Participant.
6.2
Enforcement by Manager
(a)
Without prejudice to its ability to take action itself to enforce the Mortgage, each Participant irrevocably appoints the Manager as its attorney to take action to enforce the Mortgage.
(b)
If, on close of business on the day after Mortgagor goes into and continues to be in Default for a period of 14 days, the Manager:
(i)
unless the Mortgagor is an Affiliate of the Manager, may take action in its own name to enforce the Mortgage and exercise all or any of the Powers in respect of all Indebtedness owing by the Mortgagor; and
(ii)
must take such action if requested to do so by a Participant subject to the rights of the other Participants under this document.
(c)
The Manager must not take any action in respect of any Indebtedness (other than Indebtedness owing to the Manager) if directed in writing to refrain from taking such action by all the Participants.



(d)
If the Manager has not acted within 7 days after a request from a Participant to enforce this Mortgage against the Mortgagor, any Participant, so long as it is a Non-Defaulting Participant, may enforce the rights of the Manager under this document, without the necessity for the concurrence of the other Participants, which enforcement the Manager irrevocably authorises.

6.3
Enforcer's general powers
While a Default subsists, regardless of whether the Enforcer has appointed a Receiver, the Enforcer may, without demand or notice to anyone (unless notice is required as described in clause 14.1), do all things that a mortgagee or an absolute owner of the Mortgaged Property can do, and exercise all rights, powers and remedies:
(a)
of a mortgagee or an absolute owner of the Mortgaged Property;
(b)
given to a Receiver under the Corporations Act; and
(c)
specified in clause 6.4.
6.4
Enforcer's specific powers
While a Default subsists, the Enforcer also may do any or all of the following in connection with its Powers, whether in its or the Mortgagor's name or otherwise and whether or not it has possession of the Mortgaged Property:
(a)
(recover, possess and control) access, recover, manage, take or give up possession or control of, and surrender or release, any Mortgaged Property;
(b)
(receive income and profits) receive the income and profits of the Mortgaged Property;
(c)
(carry on business) carry on, promote, restructure or participate in the Mortgagor's business in relation to the Mortgaged Property, and access the land or premises of that business;
(d)
(insurance) insure the Mortgaged Property and settle and compromise insurance claims;
(e)
(improve or invest) maintain, improve or alter the Mortgaged Property to improve its value or saleability or to obtain income or returns from it (including to acquire, take on or Lease any asset as part of the Mortgaged Property or build, rebuild, pull down or alter a structure or improvement on the Real Property);
(f)
(sell, assign or exchange) sell, assign or help sell all or any Mortgaged Property to any person or exchange it for any other property or rights, on terms the Mortgagee thinks fit, with or without other property;
(g)
(deposited documents) complete and deal with any document deposited with the Mortgagee relating to any Mortgaged Property, including any transfer in blank;
(h)
(options, Lease, rights) grant, acquire, renew, vary, accept the surrender of or terminate an option, Lease or other right over the Mortgaged Property on the terms it thinks fit, and with or without any other property;
(i)
(hive off) promote the formation of any company to acquire any Mortgaged Property or assume obligations of the Mortgagor or both;
(j)
(contracts, instruments and rights) perform or observe the Mortgagor's obligations or enforce or exercise the Mortgagor's rights, powers, discretions or remedies (or refrain from doing so) under:
(i)
a contract, instrument or arrangement forming part of the Mortgaged Property; or



(ii)
a Transaction Document (including to cure a Default) or other document entered into by the Enforcer or a Receiver in exercise of a Power,
and vary, terminate or rescind any of them or novate or otherwise transfer to any person the Mortgagor's obligations under any of them;
(k)
(Liquidation) initiate and participate in any Liquidation of any person (including voting at meetings and appointing proxies);
(l)
(proceedings) commence, prosecute, defend, discontinue, compromise, submit to arbitration and settle proceedings in connection with this document or the Mortgaged Property, whether in or before a Government Agency;
(m)
(raise money) obtain financial accommodation (including from Mortgagee or its associate) and give Guarantees, in each case with or without granting a Security Interest over the Mortgaged Property and regardless of priority ranking;
(n)
(receipts) give receipts for money and other property it receives;
(o)
(employ and delegate) employ and discharge staff, professional advisers, consultants, contractors, agents and auctioneers for the purposes of this document, and at the remuneration that the Enforcer thinks fit, and to delegate to any person any of its Powers (including this right of delegation);
(p)
(subdivide, consolidate, convert) subdivide, consolidate, convert or change the nature of the title or tenure of the Mortgaged Property;
(q)
(grant easements) grant, create, release or vary easements, profits a prendre covenants and restrictions over the Mortgaged Property;
(r)
(building and planning approvals) apply for building and planning permits or approvals or any other statutory approvals, permits or registrations as the Enforcer considers necessary in relation to the Mortgaged Property;
(s)
(amend or rectify title) apply to the relevant authority to amend or rectify a Title Document and do everything necessary to effect the amendment or rectification;
(t)
(Authorisations) apply for any Authorisation which is necessary or desirable in connection with the exercise of a Power; and
(u)
(incidental power) do anything expedient or incidental to exercise any of its Powers, without limiting those Powers.
6.5
Discharge or acquire prior Security Interest
(a)
While a Default subsists, the Enforcer may do any one or more of the following:
(i)
purchase a debt or liability secured by a prior Security Interest (including a debt secured by a Permitted Security Interest);
(ii)
pay the amount required to discharge or satisfy that debt or liability; and
(iii)
take a transfer or assignment of that Security Interest and any Guarantee, document or right ancillary or collateral to it.
(b)
If the Enforcer exercises its rights under clause 6.5(a):
(i)
the Mortgagor is indebted to the Enforcer for the same amount paid by the Enforcer or the amount of the debt or liability acquired (whichever is higher) and that amount is immediately payable to the Enforcer and forms part of the Indebtedness;
(ii)
the Enforcer may rely on a written notice from the holder of a prior Security Interest (Prior Mortgagee), or on an ancillary or collateral document, as to the amount and property secured by that prior Security Interest;



(iii)
the Prior Mortgagee need not enquire whether any amount is owing under a Transaction Document; and
(iv)
the Mortgagor irrevocably directs any such Prior Mortgagee to give the Enforcer any information it requires in connection with the prior Security Interest.
6.6
Co-operation in exercise of power of sale
If the Enforcer or a Receiver wishes to exercise a right to sell any Mortgaged Property, the Mortgagor must do or cause to be done all things necessary to enable an expeditious sale and transfer to the purchaser for the value as estimated by the Enforcer, in the manner and on terms the Enforcer thinks fit.
6.7
Appoint Receivers
(a)
While a Default subsists, the Enforcer may do any one or more of the following:
(i)
appoint one or more persons (severally, unless specified otherwise in the instrument of appointment) to be a receiver or receiver and manager of all or any of the Mortgaged Property;
(ii)
fix and vary the Receiver's remuneration at an amount agreed between the Mortgagee and the Receiver from time to time;
(iii)
terminate a receivership or remove or replace a Receiver; and
(iv)
appoint an additional Receiver.
(b)
The Enforcer may do any of these things even if a resolution or order for the Mortgagor's Liquidation has been passed or made.
(c)
Each party agrees that if a Receiver is appointed under this document on the basis of a Default which subsequently ceases to subsist, the Default is taken to continue to subsist for the purposes of the Receiver's appointment under this document.
6.8
Agency of Receiver
To the extent permitted by law, a Receiver is the agent of the Mortgagor and the Mortgagor alone is responsible for the Receiver's costs, expenses, remuneration, acts, omissions and defaults. The Mortgagee is not liable to the Mortgagor for the acts or omissions of the Receiver. To the extent that a Receiver is not, or ceases to be, the agent of the Mortgagor as a result of a resolution or order for the Mortgagor's Liquidation or by operation of law, the Receiver immediately becomes the agent of the Mortgagee.
6.9
Receiver's powers
(a)
Unless the terms of a Receiver's appointment say otherwise, the Receiver has the following rights and powers over the Mortgaged Property which the Receiver is appointed to:
(i)
deal with all the rights, powers, discretions or remedies given by law to mortgagees in possession, receivers or receivers and managers;
(ii)
deal with all of the Mortgagee's Powers under this document and at law (other than the power to appoint receivers or receivers and managers); and
(iii)
obtain financial accommodation from Mortgagee and give Guarantees on terms that the Receiver considers expedient in connection with the Mortgaged Property, in each case whether alone or together with any other person, and with or without granting a Security Interest (regardless of priority ranking) over the Mortgaged Property.
(b)
The Receiver may exercise the rights and powers under clause 6.9(a) in the name of the Mortgagor or otherwise.



6.10
Appointment of Attorney
(a)
The Mortgagor for valuable consideration, to secure the performance of its obligations under each Transaction Document, irrevocably appoints the Mortgagee, each Authorised Representative of the Mortgagee and each Receiver separately as its attorney to do any or all of the following on the Mortgagor's behalf and in the Mortgagor's or the attorney's name while a Default subsists:
(i)
anything which the Mortgagor must do under a Transaction Document or under law in connection with a Transaction Document;
(ii)
anything which the Attorney considers necessary or expedient to give effect to a Power or exercise of a Power, or to perfect any Transaction Document, including by signing any document for that purpose; and
(iii)
anything which an Attorney is expressly empowered to do under a Transaction Document on the Mortgagor's behalf.
(b)
The Mortgagor agrees to ratify anything done by its Attorney pursuant to the power of attorney granted by the Mortgagor under clause 6.10(a). An Attorney may delegate its powers (including the power to delegate) to any person for any period and may revoke the delegation.
7.
Leasehold
7.1
Definitions
In this clause:
Crown Lands Legislation means all statutes now or in the future relating to the alienation by sale, lease or otherwise, or to the occupancy, settlement, management or improvement of land owned or controlled by a Government Agency or to closer settlement; and
Mortgaged Lease means any lease which is Mortgaged Property.
7.2
Mortgagor's warranty
The Mortgagor represents and warrants to the Mortgagee that:
(a)
the Mortgaged Lease is valid and subsisting; and
(b)
the Mortgagor has not done or permitted anything to be done as a result of which the Mortgaged Lease may be or become void or voidable.

7.3
Mortgagee's rights - Crown Lands Legislation
If Crown Lands Legislation applies to the Mortgaged Lease, then the Mortgagee may at any time do any one or more of the following:
(a)
surrender the Mortgaged Lease to a Government Agency and exchange the Mortgaged Property for other land of any tenure either giving or receiving money or moneys worth for equality of exchange;
(b)
convert the Mortgaged Lease into freehold or land of any other tenure permitted by the Crown Lands Legislation;
(c)
apply for, select and take up under the Crown Lands Legislation further holdings or tenures which the Mortgagee considers necessary for the benefit of the estate of the Mortgagor;
(d)
exercise and obtain the benefit of any rights, powers and privileges which the holder, Mortgagee or owner of any land of similar tenure to the Mortgaged Lease might exercise; and



(e)
obtain the benefit of lands under the Crown Lands Legislation and otherwise deal with the Mortgaged Lease in the same manner as the Mortgagor could do if this Mortgage had not been given.
8.
Costs
8.1
Transaction expenses
(a)
The Mortgagor is liable to pay the reasonable costs of preparing and registering this document and any other deed, instrument or other document provided for or contemplated by this document, including filing and registration fees, and stamp duty.
(b)
Each party must pay its own costs of reviewing and executing this document and any other document provided for or contemplated by this document.
8.2
Enforcement and other expenses
The Mortgagor must pay or reimburse on demand by the Mortgagee all costs and expenses of Mortgagee, a Receiver and an Attorney (and any of their respective officers, employees and agents) in connection with:
(a)
enforcing a Transaction Document, or exercising, enforcing or protecting a Power, or attempting to do so;
(b)
obtaining or receiving payment of, and distributing, any Indebtedness;
(c)
a breach of, obtaining or procuring performance or satisfaction of the Mortgagor's obligations under any Transaction Document;
(d)
a Default or Potential Default;
(e)
any Government Agency enquiry concerning the Mortgagor or any of its Related Bodies, or the involvement of Mortgagee in the Transaction Documents;
(f)
maintaining, preserving or protecting the Mortgaged Property; and
(g)
obtaining professional advice from a person or consultant about any matter of concern to Mortgagee, a Receiver or an Attorney in connection with a Transaction Document or the Mortgaged Property.
This includes any legal costs and expenses (on a full indemnity basis) and any professional consultant's fees.
8.3
Costs and expenses of the Mortgagor
The Mortgagor will pay its own costs and expenses in connection with this document.
8.4
Taxes and fees
(a)
The Mortgagor must pay all:
(i)
Taxes and fees in connection with any Transaction Document or any payment, receipt, supply or other transaction carried out pursuant to, or contemplated by, any Transaction Document, including Taxes passed on to Mortgagee by another financial institution or supplier of goods and services; and
(ii)
fines and penalties for late payment or non-payment of those amounts, except where the Mortgagor places the Mortgagee in cleared funds to make the payment not less than 5 Business Days before the due date and the Mortgagee fails to make the payment.
(b)
The Mortgagor must pay or reimburse the Mortgagee on demand for all amounts which are payable under clause 8.4(a) or which the Mortgagee determines in good faith to be payable.
8.5
Tax indemnity



(a)
Subject to clause 8.5(b), the Mortgagor indemnifies the Mortgagee, against, and must pay to the Mortgagee on demand amounts equal to, any Loss which the Mortgagee determines will be or has been (directly or indirectly) suffered by the Mortgagee for or on account of Tax in respect of this document or a transaction or payment under this document.
(b)
Clause 8.5(a) does not apply:
(i)
with respect to any Excluded Tax; or
(ii)
to the extent the relevant Loss is compensated for by payment of an additional amount under clause 9.2.
9.
Payments
9.1
Payment requirements
Subject to the terms of the Joint Venture Agreement, all payments by the Mortgagor under this document must be made:
(a)
by 12.00 noon on the due date (or, if not a Business Day, on the next Business Day in the same calendar month or, if none, the preceding Business Day);
(b)
to the Mortgagee by payment to an account nominated by the Mortgagee or as the Mortgagee otherwise directs;
(c)
in Dollars, in immediately available funds, and in full without set-off, counterclaim or, subject to clause 9.2, deduction or withholding; and
(d)
if no date for payment is specified in this document, on demand by the Mortgagee.
9.2
Deduction or withholding
If the Mortgagor is required by law to deduct or withhold Taxes from a payment to the Mortgagee in connection with this document, it must:
(a)
make that deduction or withholding (and any further deductions or withholdings contemplated by clause 9.2(b)), pay to the appropriate Government Agency an amount equal to the full amount deducted and/or withheld as required by law and give the Mortgagee the original receipt for the payment; and
(b)
unless the Tax is an Excluded Tax, pay additional amounts to the Mortgagee which will result in the Mortgagee receiving at the time the payment is due (after deduction or withholding of any Taxes in respect of any additional amount) the full amount which the Mortgagee would have received if no deduction or withholding had been required.
9.3
GST
If all or any part of any payment by the Mortgagor under this document is the consideration for a taxable supply for GST purposes then:
(a)
subject to the payee first providing a tax invoice to the Mortgagor, when making the payment the Mortgagor must pay to the payee an additional amount equal to that payment multiplied by the appropriate rate of GST (currently 10%); and
(b)
to the extent that this clause does not cover a matter between the parties relating to GST, the provisions of the Joint Venture Agreement apply.
10.
Receipt of money and application
10.1
Credit of received payment
The Mortgagor is only credited with a payment of Indebtedness from the date of actual receipt in cleared funds by the Mortgagee (whether received from the Mortgagor or a Receiver).
10.2
Applying or appropriating money received



The Mortgagee may apply or appropriate all money received under the Mortgage (even if insufficient to discharge all of the Mortgagor's obligations at that time) to reduce the Indebtedness in the order, and to satisfy any part of the Indebtedness, as the Mortgagee sees fit. An application or appropriation by the Mortgagee will override any appropriation made by the Mortgagor.
10.3
Suspense account
(a)
The Mortgagee may credit money received in or towards satisfaction of the Indebtedness (including dividends received in any Liquidation) to a suspense account. The Mortgagee may keep the money in that account for as long as, and at whatever interest rate, the Mortgagee thinks fit. The Mortgagee may apply the money (including interest) to reduce the Indebtedness whenever the Mortgagee thinks fit.
(b)
If the Indebtedness has been fully and finally paid or discharged and the Mortgagee is satisfied that such payment or discharge is not liable to be set aside, avoided or reversed, then the balance standing to the credit of the suspense account and any accrued interest must be paid to or for the account of the Mortgagor and the Mortgagee will not have any further liability in relation to it.
10.4
Surplus proceeds
If the Mortgagee, a Receiver or an Attorney (as the case may be) holds any surplus money after:
(a)
payment of the Indebtedness in full and the application of proceeds in accordance with clause 10.2; and
(b)
the making of all payments that the Mortgagee, Receiver or Attorney has the right or obligation to make under the Transaction Documents or at law,
then:
(c)
no trust arises, or interest accrues, over that surplus money; and
(d)
the Mortgagee, Receiver or Attorney may pay that money to an account in the name of the Mortgagor with any bank, in which case Mortgagee, Receiver or Attorney will have no further liability in relation to that money.
10.5
Payments after notice of subsequent Security Interests
Effective from the time at which the Mortgagee receives actual or constructive notice of a subsequent Security Interest in respect of the Mortgaged Property:
(a)
the Mortgagee and the Mortgagor agree that for all purposes there is opened a new account in the name of the Mortgagor in the Mortgagee's books;
(b)
all payments made by the Mortgagor to the Mortgagee and all accommodation and advances made by the Mortgagee to the Mortgagor, are to be credited or debited (as applicable) to that new account; and
(c)
all payments credited to the new account must be applied first towards reduction of any debit balance in the new account, and then towards reduction of any other Indebtedness.
10.6
Foreign currency amounts
If for any reason the Mortgagee receives or recovers any amount under or in relation to this document in a currency other than Dollars (Foreign Currency Amount), the amount which the Mortgagee will be taken to have received or recovered for the purposes of the Transaction Documents will be the Dollar amount to which the Mortgagee could have converted the Foreign Currency Amount (in accordance with its normal procedures) at the time of the receipt or recovery, less the costs of the conversion.
11.
Assignment



11.1
Assignment only as permitted by Joint Venture Agreement
A party must not assign or otherwise dispose of its rights and obligations under this document otherwise than to a person to which it is permitted to assign its Joint Venture Interest under the Joint Venture Agreement. Subject to that requirement, this document is binding upon and inures to the benefit of the parties to this deed and their respective successors and permitted assigns.
11.2
Release and replacement of Security on assignment
If the Mortgagor is not in default under this document or the Joint Venture Agreement:
(a)
completes an assignment or other disposition of all or part of its Joint Venture Interest in accordance with the Joint Venture Agreement; and
(b)
provides to the other party an instrument evidencing the grant of a Security Interest on the terms of the Security executed by the incoming assignee of the Joint Venture Interest and related Mortgaged Property to their reasonable satisfaction registrable under the Torrens Legislation; and
(c)
undertakes at the cost of the incoming assignee to register, file or record the Security Interest or a notification of it under the Torrens Legislation,
subject to compliance with Clause 12.11 of the Joint Venture Agreement, the Mortgagee must release and discharge the Mortgage constituted by this document in respect of the Joint Venture Interest, and other Mortgaged Property assigned or disposed of.
11.3
Security Interest
The Mortgagor may assign by way of security, mortgage, charge or otherwise create a Security Interest (as principal or as surety) over the Mortgagor's right, title and interest in the Mortgaged Property in accordance with clause 12.7 of the Joint Venture Agreement and not otherwise.
11.4
Rights of third parties on assignment
If any person (other than a party to this deed) has obtained a Joint Venture Interest or a Security Interest in the Mortgaged Property and has not agreed with the parties to be bound by the Chargee's Priority Deed and this deed (Non-Permitted Secured Party) then, to the full extent permitted by Law:
(a)
notwithstanding any other provision of this document, the money which the Non-Permitted Secured Party has a claim to and which is secured by such Security Interest ranks in priority after all other Security Interests granted pursuant to the Joint Venture Agreement; and
(b)
the Non-Permitted Secured Party has no rights against any party to this document or the Joint Venture Agreement, and no other party has any obligations or duties to the Non-Permitted Secured Party under or arising out of this document.
12.
Notices, demands and communications
Clause 14 of the Deed of Cross-security applies to the giving of any notice, demand, consent, approval or communication in connection with this document.
13.
Protection of third parties
13.1
Receipt of Mortgagee, Receiver or Attorney
A receipt given by Mortgagee (or its Authorised Representative), a Receiver or an Attorney for any money payable to it, or any asset receivable by it, relieves the person paying that money or delivering the asset from all liability to enquire as to the dealing with, or application of, that money or asset.
13.2
Third parties need not enquire



A person dealing with Mortgagee, a Receiver or an Attorney is protected from any impropriety or irregularity of that dealing, and need not enquire whether:
(a)
any of them has been properly appointed or has executed or registered an instrument or exercised a Power properly or with authority; or
(b)
any Indebtedness has become due, a Transaction Document is enforceable or a default (however described) has occurred under a Transaction Document.
14.
Protection of Mortgagee, Receiver and Attorney
14.1
Notice, demand or lapse of time required by law
If a notice, demand or lapse of time is required by law before Mortgagee can exercise a Power, then for the purposes of the Mortgage:
(a)
that notice, demand or lapse of time is dispensed with to the extent allowed by that law; or
(b)
if not allowed to be dispensed with, but the period of notice, demand or lapse of time is allowed by that law to be shortened or fixed, it is shortened and fixed to one day.
14.2
Mortgagee and Receiver not restricted
The Mortgagee or a Receiver need not:
(a)
exercise a Power, give a consent or make a decision under this document unless a Transaction Document expressly provides otherwise; or
(b)
resort to a Security or Power before resorting to any other of them.
14.3
Mortgagee, Receiver and Attorney not mortgagee in possession or liable
To the extent permitted by law, Mortgagee, a Receiver and any Attorney will:
(a)
not be, nor account or be liable as, mortgagee in possession due to exercise of a Power; or
(b)
not be liable to anyone for any Loss in relation to an exercise or attempted exercise of a Power, or a failure or delay in exercising a Power.
14.4
Reinstating avoided transaction
If a claim that any payment, transaction, conveyance or transfer during the currency of the Security affecting or relating in any way to the Indebtedness is void or voidable under any law relating to bankruptcy or winding up or the protection of creditors is upheld, conceded or comprised (Preference):
(a)
the Mortgagee will forthwith become entitled against the Mortgagor to all rights in respect of the Indebtedness and the Mortgaged Property as it would have had if the Preference had not been made; and
(b)
the Mortgagor must forthwith take all such steps and sign all such documents as may be necessary or convenient to restore to the Mortgagee any Security Interest held by it immediately prior to such Preference.
14.5
Authorised Representatives and communications
The Mortgagor irrevocably authorises the Mortgagee to rely on a certificate by any person purporting to be its director or company secretary as to the identity and signatures of its Authorised Representatives, and to rely on any Notice or other document contemplated by any Transaction Document which bears the purported signature (whether given by facsimile or otherwise) of its Authorised Representative. The Mortgagor warrants that those persons have been authorised to give notices and communications under or in connection with the Transaction Documents.
14.6
Mortgagee's opinion



An opinion or view of the Mortgagee for the purposes of this document may be formed or held on its behalf by its Authorised Representative, its board of directors or by any other person it authorises to act on its behalf in relation to the Transaction Documents.
15.
General provisions
15.1
Prompt performance
If a time is not specified for the performance by the Mortgagor of an obligation under this document, it must be performed promptly.
15.2
Performance of Mortgagor's obligations by Mortgagee
The Mortgagee may do anything which the Mortgagor fails to do as required by, or in accordance with, this document. This does not limit or exclude the Mortgagee's Powers in any way.
15.3
Powers
Powers under the Transaction Documents are cumulative and do not limit or exclude Powers under law. Full or partial exercise of a Power does not prevent a further exercise of that or any other Power. No failure or delay in exercising a Power operates as a waiver or representation. Unless expressly provided in a Transaction Document, no Power or Transaction Document merges in, limits or excludes any other Power, Transaction Document or judgment which the Mortgagee or a Receiver (or anyone claiming through it) may have or obtain.
15.4
Consent and waivers
A consent or waiver by the Mortgagee or a Receiver in relation to this document is effective only if in writing. If given subject to conditions, the consent or waiver only takes effect subject to compliance with those conditions to the Mortgagee's or Receiver's satisfaction.
15.5
Indemnities and reimbursement obligations
The Mortgagee or a Receiver need not incur an expense or make a payment before enforcing an indemnity or reimbursement obligation in a Transaction Document. Unless otherwise stated, each such indemnity or reimbursement obligation is separate and independent of each other obligation of the party giving it, is absolute, irrevocable, unconditional and payable on demand and continues despite any settlement of account, termination of any Transaction Document or anything else.
15.6
Notices or demands as evidence
A notice or certificate from or demand by the Mortgagee stating that a Default has occurred, or that a specified sum of money is owing or payable under a Transaction Document or stating any other fact or determination relevant to the rights or obligations of the Mortgagee or the Mortgagor under a Transaction Document, is taken to be correct unless proved incorrect.
15.7
Law and legislation
To the extent permitted by law:
(a)
each Transaction Document to which the Mortgagor is expressed to be a party prevails to the extent of inconsistency with any law; and
(b)
any present or future legislation operating to reduce the Mortgagor's obligations under a Transaction Document or the effectiveness of the Powers is excluded.
15.8
Severability
If any of the provisions of this document are held to be invalid or unenforceable, the severance provisions of the Joint Venture Agreement apply to such invalidity or unenforceability.
15.9
Variation
A variation of this document must be in writing and signed by or on behalf of each party to it.



15.10
Governing law and jurisdiction
This document is governed by the laws of Western Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that place (and any court of appeal) and waives any right to object to an action being brought in those courts, including on the basis of an inconvenient forum or those courts not having jurisdiction.
15.11
Service of process
Without preventing any other mode of service, any document in an action or process may be served on any party by being delivered to or left for that party at its address for service of Notices under this document.





Execution page

Executed as an agreement.

Signed by Wodgina Lithium Pty Ltd in accordance with section 127 of the Corporations Act 2001 (Cth) by:
 
 
/s/ Chris Ellison
 
/s/ Mark Wilson
Signature of director
 
Signature of director/secretary
Chris Ellison
 
Mark Wilson
Name of director (print)
 
Name of director/secretary (print)

Signed by Albemarle Wodgina Pty Ltd in accordance with section 127 of the Corporations Act 2001 (Cth) by:
 
 
/s/ Karen G. Narwold
 
/s/ Mathew Shane Zauner
Signature of director
 
Signature of director/secretary
Karen G. Narwold
 
Mathew Shane Zauner
Name of director (print)
 
Name of director/secretary (print)

Signed by MARBL Lithium Operations Pty Ltd in accordance with section 127 of the Corporations Act 2001 (Cth) by:
 
 
/s/ Chris Ellison
 
/s/ Mark Wilson
Signature of director
 
Signature of director/secretary
Chris Ellison
 
Mark Wilson
Name of director (print)
 
Name of director/secretary (print)




Gilbert + Tobin
 
 page | 106



Attachment A
Confidentiality Undertaking
MARBL Lithium Joint Venture Agreement
Confidentiality Undertaking

THIS DEED is made [insert date]
BY [insert full name and address of confidant] (Confidant)
Background
A
[insert Participants] (collectively Participants) are participants in the MARBL Lithium Joint Venture (Joint Venture) governed by an agreement (Joint Venture Agreement) dated 1 November 2019 between the Participants and MARBL Lithium Operations Pty Ltd as manager of the Joint Venture (Manager).
B
The Joint Venture Agreement obliges the Participants and the Manager to maintain confidentiality of information relating to the Joint Venture.
C
The Confidant has or will have access to certain information relating to the Joint Venture for the purpose of [purchasing or otherwise acquiring the whole or part of the Joint Venture Interest of a Participant, or shares in a Participant or an Affiliate of a Participant or assessing or negotiating such a purchase/acting as professional or other independent consultant or adviser to a Participant or the Manager in connection with the Joint Venture or its Joint Venture Interest] (Permitted Purpose) and has undertaken to maintain confidentiality in relation to that information, on the terms set out in this deed.
The parties agree
1
Confidential Information
Unless otherwise agreed by the Participants, all information obtained in relation to the Joint Venture and which is not in the public domain (or which is in the public domain only as a consequence of a breach of this deed) (Confidential Information) shall be used only for the Permitted Purpose and must be kept confidential and shall not be disclosed by the Confidant otherwise than:
(a)
if and to the extent required by legislation or other legal requirement or pursuant to the rules or regulations of a recognised stock exchange applicable to the Confidant;
(b)
if and to the extent it may be necessary or desirable to disclose to any government or government authority in connection with applications for consents, approvals, authorities or indications of no objection reasonably required or expected to be required in relation to the Permitted Purpose;
(c)
to a recognised financial institution in connection with any loans sought to be arranged in connection with the Permitted Purpose;

Gilbert + Tobin
 
Attachment A




(d)
to any director, officer or employee of the Confidant; or
(e)
to any agent, contractor or consultant or adviser of the Confidant for the Permitted Purpose, subject to the person to whom disclosure is made covenanting and agreeing in favour of the Participants and the Manager to be bound by like provisions to this deed.
2
Continuing obligation
The Confidant shall continue to be bound by the terms of this deed notwithstanding that the Confidant’s involvement or connection with a Participant or the Manager or the Joint Venture may cease at any time in the future.
3
General
(a)
This deed contains the entire agreement between the Confidant, the Participants and the Manager about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter.
(b)
This deed is executed in favour of the Participants and the Manager. The Participants and the Manager have the benefit of, and are entitled to enforce this deed, even though they are not parties to this deed.
(c)
This deed is irrevocable and may only be varied if the Participants, the Manager and the Confidant agree in writing.
(d)
If the Participants or the Manager does not exercise a right at any time in connection with a default under this deed, this does not mean that it has waived the right or cannot exercise it later.
(e)
This deed is governed by the laws of Western Australia. The courts having jurisdiction in Western Australia have exclusive jurisdiction to settle any dispute arising out of or in connection with this deed.
4
Interpretation
(a)
In this deed the following rules of interpretation apply unless the contrary intention appears:
(b)
headings are for convenience only and do not affect the interpretation of this deed;
(c)
the singular includes the plural and vice versa;
(d)
words that are gender neutral or gender specific include each gender;
(e)
where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(f)
the words 'such as', 'including', 'particularly' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
(g)
a reference to:

Gilbert + Tobin
 
Attachment A




(i)
a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii)
a thing (including, but not limited to, a chose in action or other right) includes a part of that thing;
(iii)
a party includes its successors and permitted assigns;
(iv)
a document includes all amendments or supplements to that document;
(h)
a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this deed; and
(i)
no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this deed or any part of it.
Executed as a deed poll.
[insert execution block]

Gilbert + Tobin
 
Attachment A


Exhibit 10.4


 
 
 


Amendment Deed
Asset Sale and Share Subscription Agreement and MRL Kemerton ASA
Wodgina Project

⎯
Wodgina Lithium Pty Ltd
Albemarle Wodgina Pty Ltd
Mineral Resources Limited
Albemarle Corporation
Albemarle Lithium Pty Ltd
⎯






Details
Date
November 1, 2019
Parties
Name
Wodgina Lithium Pty Ltd
ACN
611 488 932
Short form name
Seller
Notice details
1 Sleat Road, Applecross WA 6153

Name
Albemarle Wodgina Pty Ltd
ACN
630 509 303
Short form name
Buyer
Notice details
Level 3, 25 National Circuit, Forrest, ACT 2603

Name
Mineral Resources Limited
ACN
118 549 910
Short form name
Seller Guarantor
Notice details
1 Sleat Road, Applecross WA 6153

Name
Albemarle Lithium Pty Ltd
ACN
618 095 471
Short form name
Albemarle Lithium
Notice details
Level 3, 25 National Circuit, Forrest, ACT 2603
Name
Albemarle Corporation
Short form name
Buyer Guarantor
Notice details
4250 Congress Street, Suite 900, Charlotte, NC 28209



Background
A
The Seller, Buyer, Seller Guarantor and Buyer Guarantor are party to the Agreement.
B
The Seller, Buyer, Seller Guarantor, Buyer Guarantor and Albemarle lithium are party to the MRL Kemerton ASA.
C
The parties have agreed to amend the terms of the Agreement and the MRL Kemerton ASA on the terms of this deed.


 
Page 7


Agreed terms
1.
Defined terms
1.1
Defined terms
In this deed:
Agreement means the ‘Asset Sale and Share Subscription Agreement – Wodgina Project’ between the Seller, the Buyer, the Seller Guarantor and the Buyer Guarantor dated 14 December 2018, as amended.
Execution Date means the date that the last party executes this deed.
1.2
Terms used in Agreement
Except where defined in this deed, terms defined in the Agreement, where used in this deed, have the meaning given to them in the Agreement.
1.3
Interpretation
This deed must be interpreted in accordance with the interpretation clause contained in Schedule 1 of the Agreement.
2.
Variations
2.1
Variation to Agreement
With effect on and from the Execution Date, the Agreement is amended as follows:
(a)
a new clause 9.3(c) is inserted as follows:
"Without limiting clause 9.3(b), the Buyer may register consent caveats under section 122(A)(2) of the Mining Act over the Tenements in respect of the Sale Interest pending registration of the Transfer Instruments, and the Seller consents to and will provide all assistance reasonably required to facilitate registration."
(b)
paragraph (g) of the definition of “Transaction Documents” in ‘Schedule 1 – Dictionary’ is deleted;
(c)
all references to “WLOPL” and “WLOPL Lithium Operations Pty Ltd” in the Agreement are replaced with “MARBL” and “MARBL Lithium Operations Pty Ltd” respectively.
(d)
clause 4(b) of ‘Schedule 15 – Kemerton Incomplete Infrastructure Commissioning’ is deleted;
(e)
clauses 7.2(a)(i)(C), (D) and (J) are deleted;
(f)
clause 7.2(a)(i)(E) is deleted and replaced with the following:
“all forms required to transfer all Approvals which the Buyer or MARBL will be required to hold from Completion in connection with the Sale Interest, completed and executed by the Seller”
(g)
a new clause 9.7 is inserted as follows:
“Security interests
The Seller must give the Buyer:
(a)
letters to the Department from, or on behalf of, the holders of each of the consent caveats in respect of the Tenements that are included as a Permitted Security Interest, stating that they have no objection to the transfer of the relevant Tenements to the Buyer and seeking the consent of the Warden pursuant to section 122D(1) of the Mining Act; and

 
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(b)
a duly executed deed of release in respect of the Sale Interest from any person holding a Security Interest over the Petroleum Pipeline Licences that is included as a Permitted Security Interest,
as soon as reasonably practicable after the Completion Date and in any event by 31 December 2019 (or such later date otherwise agreed by the parties, each acting reasonably).
The Seller indemnifies the Buyer from and against all Liabilities suffered or incurred by the Buyer in relation to a breach of the Seller's obligations under this clause 9.7.”
(h)
a new clause 9.8 is inserted as follows:
“No Called Sum at Completion
Notwithstanding anything to the contrary in this agreement (including, to avoid doubt, clauses 6.4, 7.2(a)(ii) and 7.3(b)), the parties acknowledge and agree that:
(a)    no Called Sum will be payable by the Buyer or the Seller at Completion; and
(b)
the Initial Mine Plan and Budget may be approved or agreed at the first meeting of the “Management Committee” (as defined in the JVA) after Completion, after which MARBL may call a Called Sum determined by the Management Committee at that first meeting to be paid by the Buyer and the Seller in accordance with the approved or agreed Initial Mine Plan and Budget (or on such date as is otherwise agreed by the parties.”
(i)
the following is inserted at the end of the table in ‘Schedule 7 – Third Party Agreements’:
Other
40.
General Services Agreement for the provision of Bulk Logistics Services between Process Minerals International Pty Ltd and Qube Bulk Pty Ltd dated 20 February 2019

;
(j)
a new clause 9.9 is inserted as follows:
“The Seller must procure that the Buyer is given reasonable access to the Records after the Completion Date at reasonable times and on reasonable notice.”
(k)
a new clause 8.5 is inserted as follows:
“On the same day that the Completion Adjustment is paid under clause 8.4, the Seller must pay the Buyer the amount of the Equipment Adjustment as a decrease to the Purchase Price in consideration of the changes that have been made to the mobile equipment listed in Schedule 8 after the Execution Date.”;
(l)
a new definition of “Equipment Adjustment” in ‘Schedule 1 – Dictionary’ is inserted as follows;
“Equipment Adjustment means the amount of AU$3,590,148.29.”;
(m)
Schedule 8 of the Agreement is deleted and replaced with a new Schedule 8 as set out in Annexure A of this deed; and
(n)
a new clause 7.4(c) is inserted as follows:
“notwithstanding anything in this agreement (including this clause 7.4) to the contrary, the Seller will give to the Buyer executed deeds releasing any PPS Security to the extent of the Sale Interest in relation to the Mobile Equipment as soon as practicable after Completion.”.
2.2
Variation to MRL Kemerton ASA
With effect on and from the Execution Date, the MRL Kemerton ASA is amended on the following basis:

 
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(a)
clause 4.5(a) is amended by adding the words at the end of the clause “except for the Plant Services Agreement, the execution of which must be by 6 December 2019 (as or otherwise agreed by the parties, each acting reasonably)”;
(b)
the definition of “Plant Services Agreement” in ‘Schedule 1 – Dictionary’ is amended by replacing the words “at Completion” with the words “by 6 December 2019 (or as otherwise agreed by the parties, each acting reasonably)”;
(c)
a new clause 4.5(c)(i)(F) is inserted as follows:
“provide for the cost principles outlined in Schedule 1 of the Amendment Deed between (amongst others) the parties dated 1 November 2019, which principles will also apply to the extent of any inconsistency in the Kemerton Sublease or the Kemerton Access Licence”.
(d)
a new clause 4.5(c)(i)(G) is inserted as follows:
“provide for Albemarle Lithium to be able (at its cost) to upgrade the Kemerton Shared Assets for the purposes of the Kemerton Expansion Capacity and for the provision of reciprocal services to Albemarle Lithium, being substantially equivalent to those Albemarle Lithium will provide to WLOPL, to be provided to Albemarle Lithium by WLOPL (and WLPL and AWPL) in circumstances where the Plant Services Agreement is terminated so as to enable Albemarle Lithium to construct, commission and operate the Kemerton Expansion Capacity and upgrade the Kemerton Shared Assets for that purpose.”; and
(e)
clause 19.2(f)(iii) is deleted and replaced with the following:
“(iii)
the Additional Amount payable in respect of the Supplies noted in clause 19.2(f)(ii):
(A)
must be paid by the Recipient to the Supplier no later than the 19th day of the month following the end of the Tax Period in which the Supplier issues a Tax Invoice to the Recipient for each of those Supplies; and
(B)
shall be paid in Australian dollars (AUD$), converted using the exchange rate specified on the Tax Invoice issued by Albemarle Lithium to the Seller in accordance with clause 19.2(f)(ii).”
2.3
Continued force and effect of Agreement and MRL Kemerton ASA        
(a)
The parties agree that the Agreement:
(i)
will be read and construed subject to this deed; and
(ii)
except as amended under clause 2.1, continues in full force and effect.
(b)
The parties agree that the MRL Kemerton ASA:
(i)
will be read and construed subject to this deed; and
(ii)
except as amended under clause 2.2, continues in full force and effect.
(c)
The parties acknowledge that:
(i)
the terms of this deed effect an amendment to:
(A)
the Agreement in accordance with the requirements of clause 27.5 of the Agreement; and
(B)
the MRL Kemerton ASA in accordance with the requirements of clause 23.6 of the MRL Kemerton ASA; and
(ii)
the amendments to the Agreement and the MRL Kemerton ASA (as applicable) in accordance with this deed result in a variation of the Agreement and the MRL Kemerton ASA (as applicable) and not a cancellation, termination or replacement of the Agreement or the MRL Kemerton ASA (as applicable).

 
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3.
General
3.1
Counterparts
This deed may be executed in counterparts. All executed counterparts constitute one document.
3.2
Governing law and jurisdiction
(a)
This deed is governed by the law applicable in Western Australia.
(b)
Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Western Australia including, for the avoidance of doubt, the Federal Court of Australia sitting in Western Australia.
3.3
Costs
Each party is responsible for its own legal costs and fees in connection with the preparation, execution and registration of this deed.
3.4
Severability
Part or all of any provision of this deed that is illegal or unenforceable may be severed from this deed and the remaining provisions of this deed continue in force.
3.5
Amendment
This deed can only be amended, supplemented, replaced or novated by another deed signed by the parties.

 
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Schedule 1– additional variations to MRL Kemerton ASA
No.
Cost item
Cost allocation
Service costs – same as TSA
•
Site employees
Payroll costs.
2.    
Corporate services
Payroll costs plus 10%.
3.    
Other expenses/liabilities incurred relating to the services (eg out of pocket expenses, travel and accommodation and holding the Kemerton Approvals / performing Kemerton Contracts (until transferred to JV))
At cost.
Albemarle will hold approvals and be party to contracts including as agent for the JV (being the Manager or the participants directly), so ALB should be indemnified for all costs of such arrangements etc (other than to the extent it relates to the ALB expansion capacity, consistent with the principles below) - this is different to the TSA where MRL are simply providing employees to carry out work.
Cost sharing - prior to the Kemerton Expansion Capacity being constructed
4.    
Rent under Lease
JV to pay 100% of the rent attributable to the area of Trains 1 and 2 and the Kemerton Shared Assets.
ALB and JV to each pay 50% of the rent attributable to the area of Trains 3 - 5 (ie the Kemerton Expansion Capacity Area).
ALB proposes that the rent for the Kemerton Expansion Capacity Area should be split 50/50, on the basis that the JV will be using the area of the Kemerton Expansion Capacity and has a licence (for no consideration) to use the area under the terms of the Sublease. Further, ALB may not in fact develop the Kemerton Expansion Capacity (so the JV would continue to be able to use the area).
5.    
Costs payable under the Easement (eg maintenance costs etc)
JV to pay 100% of costs.
6.    
Costs of use of the Kemerton Shared Assets and other shared costs (eg payroll costs etc)
JV to pay 100% of costs.
Costs sharing - during construction of the Kemerton Expansion Capacity

 
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No.
Cost item
Cost allocation
7.    
Rent under Lease
JV to pay 100% of the rent attributable to the area of Trains 1 and 2.
ALB to pay 100% of the rent attributable to the area of Trains 3 - 5 (ie the Kemerton Expansion Capacity Area).
Rent attributable to the area of Kemerton Shared Assets will be apportioned between the JV and ALB based on the current installed or under construction processing capacity attributable to each of the JV and ALB (ie if ALB is constructing 2 trains, the costs would be split 50:50, if ALB is constructing 1 train, ALB would bear 1/3 of the costs, and the JV 2/3).
It is not possible to allocate costs based on production during the construction period, so it will be necessary to apportion based on processing capacity.
8.    
Costs payable under the Easement (maintenance costs etc)
The costs will be apportioned between the JV and ALB based on the current installed or under construction processing capacity attributable to each of the JV and ALB.
9.    
Costs of use of the Kemerton Shared Assets and other shared costs (eg payroll costs)
To the extent that any costs are directly attributable to the use by either the JV or ALB, the costs will be attributed based on that use.
To the extent that any costs are unable to be directly attributed to the use by either the JV or ALB, the costs will be apportioned between the JV and ALB based on the current installed or under construction processing capacity attributable to each of the JV and ALB.
Costs sharing - after the Kemerton Expansion Capacity being constructed
10.    
Rent under Lease
JV to pay 100% of the rent attributable to the area of Trains 1 and 2.
ALB to pay 100% of the rent attributable to the area of Trains 3 - 5 (ie the Kemerton Expansion Capacity Area).
The rent attributable to the area of the Kemerton Shared Assets will be apportioned between the JV and ALB based on the production in a month attributable to each of the JV and ALB.
11.    
Costs payable under the Easement (maintenance costs etc)
The costs will be apportioned between the JV and ALB based on the production in a month attributable to each of the JV and ALB.

 
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No.
Cost item
Cost allocation
12.    
Costs of use of the Kemerton Shared Assets and other share costs (eg payroll costs etc)
There will be a minimum monthly payment payable by each of the JV and ALB. This is proposed to be a (to be determined) percentage (eg 10%) of the total monthly costs, calculated based on each party's share of the current installed processing capacity (ie ALB costs = Total Monthly Costs x 10% x (ALB Processing Capacity/Total Processing Capacity)). As there will still be costs incurred in relation to trains that are not producing in any month, the minimum payment is designed to ensure a party covers its fair share of the relevant costs (which would not be the case if costs were attributed purely based on production in a month).
Other costs (after subtracting the minimum payments), will be calculated as follows:
•
To the extent that any costs are directly attributable to the use by either the JV or ALB, the costs will be attributed based on that use.
•    To the extent that any costs are unable to be directly attributed to the use by either the JV or ALB, the costs will be apportioned between the JV and ALB based on the production in a month attributable to each of the JV and ALB.


 
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EXECUTED as a deed.

Executed by Wodgina Lithium Pty Ltd ACN 611 488 932 in accordance with section 127 of the Corporations Act 2001 (Cth) by:
 
 
/s/ Chris Ellison
 
/s/ Mark Wilson
Signature of director
 
Signature of director/secretary
Chris Ellison
 
Mark Wilson
Name of director (print)
 
Name of director/secretary (print)

Executed by Albemarle Wodgina Pty Ltd ACN 630 509 303 in accordance with section 127 of the Corporations Act 2001 (Cth) by:
 
 
/s/ Karen G. Narwold
 
/s/ Mathew Shane Zauner
Signature of director
 
Signature of director/secretary
Karen G. Narwold
 
Mathew Shane Zauner
Name of director (print)
 
Name of director/secretary (print)

Executed by Mineral Resources Limited ACN 118 549 910 in accordance with section 127 of the Corporations Act 2001 (Cth) by:
 
 
/s/ Chris Ellison
 
/s/ Mark Wilson
Signature of director
 
Signature of director/secretary
Chris Ellison
 
Mark Wilson
Name of director (print)
 
Name of director/secretary (print)

Executed by Albemarle Corporation in the presence of:
 
 
/s/ Brenda Mareski
 
/s/ Karen G. Narwold
Signature of witness
 
Signature of authorised signatory
Brenda Mareski
 
Karen G. Narwold
Name of witness (print)
 
Name of authorised signatory (print)



 
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Executed by Albemarle Lithium Pty Ltd ACN 618 095 471 in accordance with section 127 of the Corporations Act 2001 (Cth) by:
 
 
/s/ Karen G. Narwold
 
/s/ Mathew Shane Zauner
Signature of director
 
Signature of director/secretary
Karen G. Narwold
 
Mathew Shane Zauner
Name of director (print)
 
Name of director/secretary (print)


 
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Annexure A – Revised Schedule 8 of the Agreement




 
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EXHIBIT 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
I, Luther C. Kissam IV, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of Albemarle Corporation for the period ended September 30, 2019;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
 
 
Date:
November 6, 2019
/s/ LUTHER C. KISSAM IV
Luther C. Kissam IV
Chairman, President and Chief Executive Officer





EXHIBIT 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
I, Scott A. Tozier, certify that:
1.
I have reviewed this Quarterly Report on Form 10-Q of Albemarle Corporation for the period ended September 30, 2019;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
 
 
Date:
November 6, 2019
/s/ SCOTT A. TOZIER
Scott A. Tozier
Executive Vice President and Chief Financial Officer





EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Albemarle Corporation (the “Company”) for the period ended September 30, 2019 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Luther C. Kissam IV, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
(1)
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ LUTHER C. KISSAM IV
Luther C. Kissam IV
Chairman, President and Chief Executive Officer
November 6, 2019





EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Albemarle Corporation (the “Company”) for the period ended September 30, 2019 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Scott A. Tozier, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
(1)
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ SCOTT A. TOZIER
Scott A. Tozier
Executive Vice President and Chief Financial Officer
November 6, 2019