UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Amendment No. 1
Under the Securities Exchange Act of 1934
Livent, Inc.
(Name of Issuer)
Common Stock, without par value
(Title of Class of Securities)
537902 10 8
(CUSIP Number)
Laura S. Sarah
Hutchins, Wheeler & Dittmar, 101 Federal Street, Boston, MA 02110
(617) 951-6600
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
November 18 , 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ].
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 537902 10 8
1. NAME OF REPORTING PERSON - Thomas H. Lee Equity Partners, L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON -
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7. SOLE VOTING POWER
0
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 2,199,283 (See Item 5)
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10. SHARED DISPOSITIVE POWER
2,199,283 (See Item 5)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,199,283 (See Item 5)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.36%
14. TYPE OF REPORTING PERSON
PN
- 2 -
<PAGE>
SCHEDULE 13D
CUSIP No. 537902 10 8
1. NAME OF REPORTING PERSON - THL Equity Advisors Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON -
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
6.CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
7. SOLE VOTING POWER
0
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 2,199,283 (See Item 5)
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10. SHARED DISPOSITIVE POWER
2,199,283 (See Item 5)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,199,283 (See Item 5)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.36%
14. TYPE OF REPORTING PERSON
PN
- 3 -
<PAGE>
SCHEDULE 13D
CUSIP No. 537902 10 8
1. NAME OF REPORTING PERSON - THL Equity Trust
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON -
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
7. SOLE VOTING POWER
0
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 2,199,283 (See Item 5)
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10. SHARED DISPOSITIVE POWER
2,199,283 (See Item 5)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,199,283 (See Item 5)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.36%
14. TYPE OF REPORTING PERSON
OO
- 4 -
<PAGE>
SCHEDULE 13D
CUSIP No. 537902 10 8
1. NAME OF REPORTING PERSON -THL-CCI Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON -
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
7. SOLE VOTING POWER
0
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 464,352 (See Item 5)
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 464,352 (See Item 5)
PERSON WITH
10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
464,352 (See Item 5)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.04%
14. TYPE OF REPORTING PERSON
PN
-5-
<PAGE>
SCHEDULE 13D
CUSIP No. 537902 10 8
1. NAME OF REPORTING PERSON - THL Investment Management Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON -
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
3. SEC USE ONLY
4. SOURCE OF FUNDS
N/A
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
7. SOLE VOTING POWER
0
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 464,352 (See Item 5)
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10. SHARED DISPOSITIVE POWER
464,352 (See Item 5)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
464,352 (See Item 5)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.04%
14. TYPE OF REPORTING PERSON
CO
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<PAGE>
SCHEDULE 13D
Amendment No. 1 to Schedule 13D
This Amendment No. 1 hereby amends and supplements the Schedule 13D
relating to the common shares without par value of Livent, Inc., an Ontario
corporation (the "Issuer"), as previously filed by the Reporting Persons,
consisting of (1) Thomas H. Lee Equity Partners, L.P., a Delaware limited
partnership, (2) THL Equity Advisors Limited Partnership, a Massachusetts
limited partnership, (3) THL Equity Trust, a Massachusetts business trust, (4)
THL CCI Limited Partnership, a Massachusetts limited partnership, and (5) THL
Investment Management Corp., a Massachusetts corporation.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Item 6 is hereby amended to include the following:
On November 18, 1998, certain directors of the Issuer entered into secured
loan agreements (the "DIP Loans") with Livent Realty (New York) Inc. ("Livent
New York") and Livent Realty (Chicago) Inc. ("Livent Chicago" and, together with
Livent New York, the "Borrowers") and the Issuer and Livent (U.S.) Inc. ("Livent
US" and, together with the Issuer, the "Guarantors") for the purpose of
financing working capital and general corporate requirements of the Borrowers
and the Guarantors during the initial period following the filings under Chapter
11 of the Bankruptcy Code, Title 11 of the United States Code (the "Bankruptcy
Code") by the Borrowers and Guarantors. Pursuant to the DIP Loans which totaled
$5,000,000, Thomas H. Lee provided $174,330 and Thomas H. Lee Equity Partners,
L.P. provided $825,670 to the Borrowers as debtors and debtors-in-possession in
the cases pending under the Bankruptcy Code (the "Cases").
The Borrowers have agreed to repay each lender under the DIP Loans on the
earlier to occur of (i) May 19, 2000, (ii) the effective date of a plan of
reorganization or liquidation in the Cases or (iii) the date of substantial
consummation of a plan of reorganization in the Cases. The Borrowers must pay
interest on the unpaid principal amount of the DIP Loans monthly until all
amounts owned under such loans are paid in full at a rate equal to the prime
commercial lending rate announced by The Chase Manhattan Bank plus two percent
(2%). Upon the occurrence and continuance of any default in the payment of any
principal, interest or costs, the DIP Loans will bear interest at an annual rate
equal to the rate which is two percent in excess of the rate then borne by such
DIP Loans. Such interest is payable on demand.
Absent an agreement to the contrary, the Borrowers must repay the unpaid
principal amount of the DIP Loans, all accrued and unpaid interest thereon and
reasonable costs upon (i) the funding of a subsequent debtor-in-possession
facility in the Cases by an entity other
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<PAGE>
than the director lenders under the DIP Loans or (ii) the sale of all assets
securing the DIP Loans (the "Security"). If there is a sale of less than all of
the Security, then the net proceeds of such sale are to be paid in respect of
the DIP Loans on a pro rata basis.
The Security includes security interests in and mortgages on the Ford
Center for the Performing Arts in New York City and the Ford Center for the
Performing Arts in Chicago, Illinois (the "DIP Liens"). The DIP Liens are
subordinate to senior liens of record, if any. The DIP Liens are further subject
to a "carve-out" for post-default claims of (i) $300,000 for customary and usual
professional fees and (ii) fees of the Unites States Trustee.
On November 27, 1998, the Issuer announced its receipt of a commitment from
a third party financier to provide debtor-in-possession financing ("Third Party
DIP Financing") subject to a number of conditions, including pertinent approvals
of the bankruptcy court. Under the terms of such commitment, up to $5.5 million
of funds to be provided by the third party may be applied to repayment of the
DIP Loans. To the extent such DIP Loans remain outstanding, they will be
subordinated to the interests of the Third Party DIP Financing. On December 4,
1998, following interim bankruptcy court approval on December 3, 1998, and
partial funding of the Third Party DIP Financing, the Borrowers repaid
$3,011,375 (including $3 million of principal and $11,375 of interest) of the
amounts owned under the DIP Loans which was applied to such loans on a pro rata
basis.
A Form of DIP Commitment Letter, substantially the same as the DIP
Commitment Letters executed between the Borrowers/Guarantors and each of Thomas
H. Lee and Thomas H. Lee Equity Partners, L.P. on November 18, 1998, is attached
as Exhibit 6.
Item 7. Material to be Filed as Exhibits.
Item 7 is hereby amended to include the following:
Exhibit 6: Form of DIP Commitment Letter which is substantially the same
as the DIP Commitment Letters executed between Borrowers and Guarantors and
each of Thomas H. Lee and Thomas H. Lee Equity Partners, L.P. on November 18,
1998.
-8-
<PAGE>
Signatures
After reasonable inquiry and to the best knowledge and belief of each
of the undersigned, such person certifies that the information set forth in this
Statement with respect to such person is true, complete and correct.
THOMAS H. LEE EQUITY PARTNERS, L.P.
By: THL Equity Advisors Limited Partnership,
its General Partner
By: THL Equity Trust, its General Partner
By: /s/ Thomas H. Lee
Name: Thomas H. Lee
Title: President
THL EQUITY ADVISORS LIMITED
PARTNERSHIP
By: THL Equity Trust, its General Partner
By: /s/ Thomas H. Lee
Name: Thomas H. Lee
Title: President
THL EQUITY TRUST
By: /s/ Thomas H. Lee
Name: Thomas H. Lee
Title: President
<PAGE>
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management
Corp., its General Partner
By: /s/ Wendy L. Masler
Name: Wendy L. Masler
Title: Vice President
THL INVESTMENT MANAGEMENT CORP.
By: /s/ Wendy L. Masler
Name: Wendy L. Masler
Title: Vice President
<PAGE>
EXHIBIT 6
DIP COMMITMENT LETTER
Thomas H. Lee Equity Partners, L.P. and Thomas H. Lee (collectively,
the "LENDERS") understands that a total of $5 million will be required to
finance the working capital and general corporate requirements of Livent Realty
(New York) Inc. and Livent Realty (Chicago) Inc. (together, "Borrowers"),
Livent (U.S.) Inc. and Livent Inc. (together, "Guarantors") during the initial
phase of proceedings with respect to Borrowers' and Guarantors' cases (the
"Cases") that may be commenced under Chapter 11 of Title 11 of the
United States Code (the "Bankruptcy Code").
Subject to the terms and conditions set forth herein, the LENDERS
confirm that it is willing to provide One Million to Borrowers (the "Loan") in
the form of a secured loan to finance the working capital and general corporate
requirements of Borrowers and Guarantors. The LENDERS understand that other
LENDERS (collectively, with LENDERS, the "Director LENDERS") have also agreed to
advance funds to Borrowers on the same terms and conditions as set forth herein
with respect to LENDERS, and that, the Loan and the loans of the other Director
LENDERS (collectively, the "Director Loans," and any such loan individually, a
"Director Loan") shall be treated identically and pari passu with one another.
TERMS
<TABLE>
<S> <C>
LENDERS: Thomas H. Lee Equity Partners L.P. and Thomas H. Lee, or their
nominee(s).
Borrowers: Borrowers as debtors and debtors-in-possession in their Cases under the
Bankruptcy Code.
Guarantors: Guarantors as debtors and debtors-in-possession in their Cases under the
Bankruptcy Code.
Loan Amount: $ One Million.
Maturity: The earliest of (x) the date which is 18 months after the date of the
commencement of the Chapter 11 Cases of Borrowers and Guarantors:
(y) the effective date of a plan of reorganization or liquidation in the
Cases; and (z) the date of substantial consummation of a plan of
reorganization in the Cases.
Availability: To the extent the interim order and/or final order issued by the
bankruptcy court (the "Court") hearing the Cases is otherwise limited as
to the amount of credit covered by such order, availability under the
<PAGE>
Director Loans shall be so limited. Any such
limitation shall result in a pro-rata reduction of
each of the Director Loans.
Purpose: The Loan may be utilized to provide for working capital and general
corporate requirements.
Mandatory
Repayments: All amounts due under the Loan, including accrued but unpaid interest,
and costs, shall be repaid upon (i) the funding of a subsequent Debtor-
In-Possession facility in the Cases by any entity that is not a Director
LENDER, and (ii) the sale of all of the assets securing the Loan (the
"Security"). In the event of a sale of less than all of the Security, the
net proceeds of such sale shall be paid in respect of the Director Loans
on a pro rata basis.
Voluntary
Repayments: At the Borrowers' option, the Loan may be reduced or terminated at any
time without penalty. Voluntary prepayments may be made at any time,
in whole or in part (subject to specified minimum principal amounts)
without premium or penalty.
Priority: The Loan together with all unpaid interest and costs (collectively, the
"Obligations") shall constitute an allowed administrative expense claim
in the Cases pursuant to and shall be entitled to the benefits of Sections
364(c)(2) and 364(c)(3), and Sections 503(b) and 507(b) of the
Bankruptcy Code. Any and all payments made to any Director
LENDERS in respect of a Director Loan (including any payments made
from the proceeds of any of the Security) shall be made in an identical
basis and pari passu with all other Director Loans. This Loan shall not
be subject to any Section 364(d) relief, nor otherwise modified by the
Bankruptcy Court or by a plan of reorganization.
Security: The Obligations shall be secured by an enforceable
secured priority perfected security interest and
mortgage in (i) the Ford Center for the Performing
Arts, New York, New York, owned by Livent Realty (New
York) Inc., and (ii) the Ford Center for the
Performing Arts, 32 West Randolph, Chicago, Illinois,
owned by Livent Realty (Chicago) Inc., (together, the
"DIP Liens," and individually, a "DIP Lien").
The DIP Lien on the Ford Center for the Performing
Arts in Chicago shall be second in priority to a
mortgage held by the City of Chicago in the nominal
amount of $16,920,000 to secure the performance by
Livent
<PAGE>
Realty (Chicago) Inc. under the April, 1996 Redevelopment Agreement
with the City of Chicago.
If and to the extent the purported $5 million lien
held by Canadian Imperial Bank of Commerce on the
Ford Center for the Performing Arts in New York is
held by the Court to be invalid or is otherwise
avoided, the DIP Lien on the Ford Center for the
Performing Arts in New York shall automatically
become a first priority security interest and
mortgage in that property. The DIP Liens shall be
subject only to a post-default carve out relating to
(a) $300,000 for customary and usual professional
fees, and (b) fees of the United States Trustee.
The Borrowers and Guarantors will use their best
efforts to obtain for LENDER, as Additional Security,
a junior lien on all assets of Borrowers and
Guarantors as well as a super priority administrative
expense under Section 364(c)(i).
Interest Rate: The prime commercial lending rate announced by Chase Bank, from
time to time plus 2 points. Interest in respect of the Loan shall be paid
monthly in arrears on the last business day of the month. Interest will
also be payable at the time of repayment of the Loan and at maturity of
the Loan. All interest and fee calculation shall be based on a 360-day
year and actual days elapsed.
Upon the occurrence and continuance of any default in
the payment of any principal, interest or costs, the
Loan shall bear interest at a rate per annum equal to
the rate which is 2% in excess of the rate then borne
by the Loan. Such interest shall be payable on
demand.
Covenants: Covenants to apply to the Borrowers and the Guarantors:
(1) Borrowers and Guarantors shall not cause any other liens to be
placed on the Security;
(2) Borrowers and Guarantors shall not sell any
of the Security without prior Court
authorization upon notice to LENDERS; and
(3) Borrowers and Guarantors shall maintain
adequate insurance on the Security, and
LENDERS shall be made a loss payee on any
such insurance within a reasonable time.
<PAGE>
Events of
Default: (1) Failure to timely pay any obligation when due under the Loan; or
otherwise fail to perform any obligation, term or condition of
this letter to be performed by Borrowers or Guarantors:
(2) The appointment of a trustee or the appointment of an examiner
with enlarged powers in the Cases;
(3) Conversion of the Cases into proceedings under Chapter 7 of the
Bankruptcy Code:
(4) A change in control or ownership of Borrowers or Guarantors;
or
(5) Failure to execute the mortgage
documentation and any other Loan
documentation reasonably required by LENDER,
if any, in form and substance reasonably
satisfactory to the LENDERS within five (5)
business days of the commencement of the
Cases.
Conditions
Precedent: The funding of the Loan by the LENDERS is conditioned upon the following
events occurring:
(1) All necessary orders of the Court authorizing the
Director Loans and the DIP Liens shall have been
entered and shall be in full force and effect and
shall not have been stayed, reversed, vacated or
rescinded, and all such orders shall be satisfactory
to the LENDERS and shall include a finding by the
Court that the LENDERS is extending credit to
Borrowers in good faith under section 364(e) of the
Bankruptcy Code;
(2) Substantially, similar commitments shall have been
made by other Director LENDERS so that the total
commitments by all of the Directors, LENDERS equal at
least $5 million; and
(3) LENDERS, in LENDERS' sole discretion, shall be
satisfied that there will be sufficient equity in the
Security to secure the Loan.
Assignments: Assignments of interests in the Loan may be made by the LENDERS at any
time.
</TABLE>
To induce the LENDERS to issue this commitment letter, Borrowers and
Guarantors hereby agree that all reasonable fees and expenses (including the
reasonable fees of counsel and consultants) of the LENDERS arising in connection
with this commitment letter and in
<PAGE>
connection with the transactions described herein (including reasonable fees and
expenses incurred by the LENDERS to enforce the Loan) shall be paid by Borrowers
and Guarantors, whether or not the Loan is consummated. Borrowers and Guarantors
further agree to indemnify and hold harmless the LENDERS from and against any
and all actions, suits, proceedings, claims, losses, damages, liabilities or
expenses of any kind or nature whatsoever which may be incurred by or asserted
against the LENDERS as a result of or arising out of or in any way related to or
resulting from this commitment letter or any eventual Loan, and, upon demand, to
pay and reimburse the LENDERS for any reasonable legal or other out-of-pocket
expenses incurred in connection with investigating, defending or preparing to
defend any such action, suit, proceeding, or claim; provided, however, that
Borrowers and Guarantors shall not be required to indemnify the LENDERS against
any loss, claim, damage, expense or liability to the extent it resulted from the
gross negligence or willful misconduct of the LENDERS. Any liability arising out
of this paragraph shall be included in the definition of the term "Obligations"
under this commitment letter.
This commitment letter is furnished for Borrower's benefit, and may not
be relied upon by any other person or entity. The LENDERS shall not be
responsible for liable to Borrowers or any other person for consequential
damages which may be alleged as a result of this letter.
This commitment letter shall be construed in accordance with an
governed by the laws of the State of New York. Borrowers may terminate the
LENDERS' commitment with respect to the Loan at any time.
