WAIVER NO. 1 TO THE CREDIT AGREEMENT

EX-10.2 3 dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

EXECUTION COPY

WAIVER NO. 1 TO THE

CREDIT AGREEMENT

Dated as of July 18, 2011

WAIVER NO. 1 TO THE CREDIT AGREEMENT among The Lubrizol Corporation (the “Borrower”), the banks, financial institutions and other institutional lenders parties to the Credit Agreement referred to below (collectively, the “Lenders”) and Citibank, N.A., as administrative agent (the “Agent”) for the Lenders.

PRELIMINARY STATEMENTS:

(1)

The Borrower, the Lenders and the Agent have entered into a Credit Agreement dated as of July 19, 2010 (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.

(2)

The Borrower 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 Borrower 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.

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 Borrower and (y) the election or designation by Berkshire of individuals who collectively would constitute a majority of the board of directors of the Borrower as directors of the Borrower.

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 Borrower 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 Borrower. The Borrower 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.

(b)

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.

SECTION 5. Costs and Expenses. The Borrower 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.

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.


THE LUBRIZOL CORPORATION

By		/s/ Charles P. Cooley
Name:		Charles P. Cooley
Title:		Senior VP and CFO

By		/s/ Brian A. Valentine
Name:		Brian A. Valentine
Title:		Treasurer

Accepted and Agreed:

CITIBANK, N.A.,

as Administrative Agent and as Lender



By		/s/ David Jaffe
		Name: David Jaffe
		Title: Vice President


KEYBANK NATIONAL ASSOCIATION

By
		Name:
		Title:


THE ROYAL BANK OF SCOTLAND PLC

By		/s/ Paul Chisholm Attorney in Fact
		Name: Paul Chisholm
		Title: Vice President


DEUTSCHE BANK AG NEW YORK BRANCH

By		/s/ Philippe Sandmeier
		Name: Philippe Sandmeier
		Title: Managing Director

By		/s/ Ross Levitsky
		Name: Ross Levitsky
		Title: Managing Director


JPMORGAN CHASE BANK, N.A

By		/s/ Robert S. Sheppard
		Name: Robert S. Sheppard
		Title: Vice President


PNC BANK, NATIONAL ASSOCIATION

By
		Name:
		Title:


THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

By		/s/ Victor Pierzchalski
		Name: Victor Pierzchalski
		Title: Authorized Signatory

By
		Name:
		Title:


U.S. BANK NATIONAL ASSOCIATION

By
		Name:
		Title:


WELLS FARGO BANK, NATIONAL ASSOCIATION

By		/s/ Peter R. Martinets
		Name: Peter R. Martinets
		Title: Managing Director


BNP PARIBAS

By		/s/ Michael Pearce
		Name: Michael Pearce
		Title: Managing Director

By		/s/ Michael Hoffman
		Name: Michael Hoffman
		Title: Associate

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK



By
		Name:
		Title:


FIFTH THIRD BANK

By		/s/ R. C. Lanctot
		Name: Roy C. Lanctot
		Title: Vice President


MIZUHO CORPORATE BANK, LTD.

By		/s/ Yasuo Imaizumi
		Name: Yasuo Imaizumi
		Title: Deputy General Manager


THE NORTHERN TRUST COMPANY

By		/s/ Michael A. Houlihan
		Name: Michael A. Houlihan
		Title: Vice President