Exhibit
10.3
EXECUTION
COPY
WAIVER NO. 1 TO
THE
THREE
YEAR CREDIT AGREEMENT
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Dated as of
July 18, 2011
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WAIVER NO. 1 TO
THE THREE YEAR CREDIT AGREEMENT among Lubrizol
Holdings France S.A.S., Lubrizol Advanced Materials Europe BVBA,
Lubrizol (Gibraltar) Limited and Lubrizol Europe Coordination
Center BVBA (collectively, the “ Borrowers ”),
The Lubrizol Corporation (the “Guarantor”), the banks,
financial institutions and other institutional lenders parties to
the Credit Agreement referred to below (collectively, the “
Lenders ”) and The Royal Bank of Scotland plc, as
administrative agent (the “ Agent ”) for the
Lenders.
PRELIMINARY
STATEMENTS:
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(1)
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The Borrowers,
the Guarantor, the Lenders and the Agent have entered into an Three
Year Credit Agreement dated as of July 21, 2009 (such Credit
Agreement, as so modified, the “ Credit Agreement
”). Capitalized terms not otherwise defined in this Waiver
have the same meanings as specified in the Credit
Agreement.
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(2)
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The Guarantor
has announced that it has entered into the Agreement and Plan of
Merger, dated March 13, 2011 with Berkshire Hathaway Inc.
(“ Berkshire ”) and Ohio Merger Sub, Inc.,
pursuant to which the Guarantor shall be acquired by Berkshire (the
“ Merger Agreement ”), and has therefore
requested that the Required Lenders agree to waive Sections 5.02(b)
and 6.01(g) of the Credit Agreement as hereinafter set
forth.
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SECTION 1.
Waivers . Effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in
Section 2 below, Sections 5.02(b) and 6.01(g) of the Credit
Agreement are hereby waived, solely with respect to (x) the
acquisition by Berkshire, directly or indirectly, of 100% of the
Voting Stock of the Guarantor and (y) the election or
designation by Berkshire of individuals who collectively would
constitute a majority of the board of directors of the Guarantor as
directors of the Guarantor.
SECTION 2.
Conditions of Effectiveness . This Waiver shall become
effective as of the date first above written when, and only when
the Agent shall have received counterparts of this Waiver executed
by the Guarantor and the Required Lenders. This Waiver is subject
to the provisions of Section 9.01 of the Credit
Agreement.
SECTION 3.
Representations and Warranties of the Guarantor . The
Guarantor represents and warrants that the representations and
warranties contained in Section 4.01 of the Credit Agreement
are correct on and as of the date hereof and, other than as
specifically waived in this Waiver, no event has occurred and is
continuing that constitutes a Default.
SECTION 4.
Effect on the Credit Agreement and the Loan Documents .
(a) The Credit Agreement and the Loan Documents, except to the
extent of the waiver specifically provided above, are and shall
continue to be in full force and effect and are hereby in all
respects ratified and confirmed.
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(b)
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The execution,
delivery and effectiveness of this Waiver shall not, except as
expressly provided herein, operate as a waiver of any right, power
or remedy of any Lender or the Agent under the Credit Agreement,
nor constitute a waiver of any provision of the Credit
Agreement.
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SECTION 5.
Costs and Expenses . The Guarantor agrees to pay on demand
all costs and expenses of the Agent in connection with the
preparation, execution, delivery and administration, modification
and amendment of this Waiver and the other instruments and
documents to be delivered hereunder (including, without limitation,
the reasonable fees and expenses of counsel for the Agent) in
accordance with the terms of Section 9.04 of the Credit
Agreement.
SECTION 6.
Execution in Counterparts . This Waiver may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute but one and the same agreement. Delivery of an executed
counterpart of a signature page to this Waiver by facsimile or
electronic transmission shall be effective as delivery of a
manually executed counterpart of this Waiver.
SECTION 7.
Governing Law . This Waiver shall be governed by, and
construed in accordance with, the laws of the State of
New York.
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IN WITNESS
WHEREOF, the parties hereto have caused this Waiver to be executed
by their respective officers thereunto duly authorized, as of the
date first above written.
