Exhibit 4
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
November 30, 2006 by and among ASHLAND INC., a corporation duly organized
and existing under the laws of Commonwealth of Kentucky and having its
principal office at 50 E. RiverCenter Blvd., P.O. Box 391, Covington,
Kentucky 41012 (the "Company"), WILMINGTON TRUST COMPANY, a Delaware
banking corporation having its principal corporate trust office at 1100 N.
Market Street, Wilmington, Delaware 19890 ("Successor Trustee") and
CITIBANK, N.A., a national banking association duly organized and existing
under the laws of the United States of America and having its principal
corporate trust office at 388 Greenwich Street, New York, New York 10013
("Resigning Trustee").
RECITALS:
WHEREAS, there are currently $20,136,000 aggregate principal amount of
the Company's 8.80% Sinking Fund Debentures due 2012 and $8,000,000
aggregate principal amount of the Company's Medium-Term Notes, Series E
(collectively, the "Securities") outstanding under the Amendment and
Restatement as of August 15, 1990 of the Indenture dated as of August 15,
1989, by and between the Company and Resigning Trustee as amended by the
First Supplemental Indenture dated as of June 15, 2005, the Second
Supplemental Indenture dated as of June 30, 2005 and the Third Supplemental
Indenture dated as of June 30, 2005 (collectively hereinafter, the
"Indenture," unless context clearly indicates otherwise).
WHEREAS, the Company appointed Resigning Trustee as the Trustee,
Security Registrar and Paying Agent under the Indenture;
WHEREAS, Section 6.10 of the Indenture provides that the Trustee may
at any time resign with respect to the Securities of one or more series by
giving written notice of such resignation to the Company, effective upon
the acceptance by a successor Trustee of its appointment as a successor
Trustee;
WHEREAS, Section 6.10 of the Indenture provides that, if the Trustee
shall resign, the Company shall promptly appoint a successor Trustee;
WHEREAS, Section 6.11 of the Indenture provides that any successor
Trustee appointed in accordance with the Indenture shall execute,
acknowledge and deliver to the Company and to its predecessor trustee an
instrument accepting such appointment under the Indenture, and thereupon
the resignation of the predecessor Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, duties and obligations of the
predecessor trustee;
WHEREAS, the Company desires to appoint Successor Trustee as Trustee
to succeed Resigning Trustee in such capacity under the Indenture; and
WHEREAS, Successor Trustee is willing to accept such appointment as
successor Trustee, under the Indenture;
NOW, THEREFORE, the Company, Resigning Trustee and Successor Trustee,
for and in consideration of the premises and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby consent and agree as follows:
1
THE RESIGNING TRUSTEE
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1.1 Pursuant to Section 6.10 of the Indenture, Resigning Trustee has
by letter notified the Company that Resigning Trustee is resigning as
Trustee under the Indenture, but will retain the roles of Security
Registrar, Paying Agent and Authenticating Agent.
1.2 Resigning Trustee hereby represents and warrants to Successor
Trustee that:
(a) No covenant or condition contained in the Indenture has been
waived by Resigning Trustee or, to the best knowledge of
responsible officers of Resigning Trustee's corporate trust
department, by the Holders of the percentage in aggregate
principal amount of the Securities required by the Indenture
to effect any such waiver.
(b) There is no action, suit or proceeding pending or, to the
best knowledge of responsible officers of Resigning
Trustee's corporate trust department, threatened against
Resigning Trustee before any court or any governmental
authority arising out of any act or omission of Resigning
Trustee as Trustee under the Indenture.
(c) As of the effective date of this Agreement, Resigning
Trustee will hold no moneys or property under the Indenture.
(d) Pursuant to Section 3.03 of the Indenture, Resigning Trustee
has duly authenticated and delivered the Securities, of
which $20,136,000 aggregate principal amount of the 8.80%
Sinking Fund Debenture due 2012 and $8,000,000 aggregate
principal amount of the Medium-Term Notes, Series E are
outstanding as of the effective date hereof.
(e) The registers in which it has registered and transferred
registered Securities accurately reflect the amount of
Securities issued and outstanding and the amounts payable
thereon.
(f) Each person who so authenticated the Securities was duly
elected, qualified and acting as an officer or authorized
signatory of Resigning Trustee and empowered to authenticate
the Securities at the respective times of such
authentication and the signature of such person or persons
appearing on such Securities is each such person's genuine
signature.
(g) This Agreement has been duly authorized, executed and
delivered on behalf of Resigning Trustee and constitutes its
legal, valid and binding obligation, enforceable in
accordance with its terms.
(h) To the best knowledge of responsible officers of the
Resigning Trustee's corporate trust department, no event has
occurred and is continuing which is, or after notice or
lapse of time would become, an Event of Default under
Section 5.01 of the Indenture.
1.3 Resigning Trustee hereby assigns, transfers, delivers and confirms
to Successor Trustee all right, title and interest of Resigning Trustee in
and to the trust under the Indenture and all the rights, powers and trusts
of the Trustee under the Indenture. Resigning Trustee shall execute and
deliver such further instruments and shall do such other things as
Successor Trustee may reasonably require so as to more fully and certainly
vest and confirm in Successor Trustee all the rights, powers and trusts
hereby assigned, transferred, delivered and confirmed to Successor Trustee
as Trustee.
1.4 Resigning Trustee shall deliver to Successor Trustee, as of or
promptly after the effective date hereof, all of the documents listed on
Exhibit A hereto.
2
THE COMPANY
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2.1 The Company hereby accepts the resignation of Resigning Trustee as
Trustee under the Indenture.
2.2 The Company hereby certifies that it has authorized certain
officers of the Company to: (a) accept Resigning Trustee's resignation as
Trustee under the Indenture; (b) appoint Successor Trustee as Trustee under
the Indenture; and (c) execute and deliver such agreements and other
instruments as may be necessary or desirable to effectuate the succession
of Successor Trustee as Trustee under the Indenture.
2.3 The Company hereby appoints Successor Trustee as Trustee under the
Indenture to succeed to, and hereby vests Successor Trustee with, all the
rights, powers, duties and obligations of Resigning Trustee under the
Indenture with like effect as if originally named as Trustee in the
Indenture.
2.4 Promptly after the effective date of this Agreement, the Company
shall cause a notice, substantially in the form of Exhibit B annexed
hereto, to be sent to each Holder of the Securities in accordance with the
provisions of Section 6.10 of the Indenture.
2.5 The Company hereby represents and warrants to Resigning Trustee
and Successor Trustee that:
(a) The Company is a corporation duly and validly organized and
existing pursuant to the laws of the Commonwealth of
Kentucky.
(b) The Indenture was validly and lawfully executed and
delivered by the Company and the Securities were validly
issued by the Company.
(c) The Company has performed or fulfilled prior to the date
hereof, and will continue to perform and fulfill after the
date hereof, each covenant, agreement, condition, obligation
and responsibility under the Indenture.
(d) No event has occurred and is continuing which is, or after
notice or lapse of time would become, an Event of Default
under Section 5.01 of the Indenture.
(e) No covenant or condition contained in the Indenture has been
waived by the Company or, to the best of the Company's
knowledge, by Holders of the percentage in aggregate
principal amount of the Securities required to effect any
such waiver.
(f) There is no action, suit or proceeding pending or, to the
best of the Company's knowledge, threatened against the
Company before any court or any governmental authority
arising out of any act or omission of the Company under the
Indenture.
(g) This Agreement has been duly authorized, executed and
delivered on behalf of the Company and constitutes its
legal, valid and binding obligation, enforceable in
accordance with its terms.
(h) All conditions precedent relating to the appointment of
Wilmington Trust Company as successor Trustee under the
Indenture have been complied with by the Company.
3
THE SUCCESSOR TRUSTEE
---------------------
3.1 Successor Trustee hereby represents and warrants to Resigning
Trustee and to the Company that:
(a) Successor Trustee is not disqualified under the provisions
of Section 6.08 and is eligible under the provisions of
Section 6.09 of the Indenture to act as Trustee under the
Indenture.
(b) This Agreement has been duly authorized, executed and
delivered on behalf of Successor Trustee and constitutes its
legal, valid and binding obligation, enforceable in
accordance with its terms.
3.2 Successor Trustee hereby accepts its appointment as successor
Trustee under the Indenture and accepts the rights, powers, duties and
obligations of Resigning Trustee as Trustee under the Indenture, upon the
terms and conditions set forth therein, with like effect as if originally
named as Trustee under the Indenture.
3.3 References in the Indenture to "Principal Office" or other similar
terms shall be deemed to refer to the principal corporate trust office of
Successor Trustee, which is presently located at 1100 N. Market Street,
Wilmington, Delaware 19890.
4
MISCELLANEOUS
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4.1 Except as otherwise expressly provided herein or unless the
context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
4.2 This Agreement and the resignation, appointment and acceptance
effected hereby shall be effective as of the opening of business on
November 30, 2006.
4.3 Resigning Trustee hereby acknowledges payment or provision for
payment in full by the Company of compensation for all services rendered by
Resigning Trustee in its capacity as Trustee under Section 6.07 of the
Indenture and reimbursement in full by the Company of the expenses,
disbursements and advances incurred or made by Resigning Trustee in its
capacity as Trustee in accordance with the provisions of the Indenture.
Resigning Trustee acknowledges that it relinquishes any lien it may have
upon all property or funds held or collected by it to secure any amounts
due it pursuant to the provisions of Section 6.07 of the Indenture. This
Agreement does not constitute a waiver or assignment by the Resigning
Trustee of any compensation, reimbursement, expenses or indemnity to which
it is or may be entitled pursuant to the Indenture, nor does this Agreement
constitute a waiver by the Company of claims against Resigning Trustee
arising under the Indenture on or prior to the date this Agreement is
executed of which the Company is not then aware. The Company acknowledges
its obligation set forth in Section 6.07 of the Indenture to indemnify
Resigning Trustee for, and to hold Resigning Trustee harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
part of Resigning Trustee and arising out of or in connection with the
acceptance or
administration of the trust evidenced by the Indenture (which obligation
shall survive the execution hereof).
4.4 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of laws
principles thereof.
4.5 This Agreement may be executed in any number of counterparts each
of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
4.6 The Company, Resigning Trustee and Successor Trustee hereby
acknowledge receipt of an executed and acknowledged counterpart of this
Agreement and the effectiveness thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed, all as of the
day and year first above written.
ASHLAND INC.
By: /s/ Daragh L. Porter
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Name: Daragh L. Porter
Title: VP of Finance and Treasurer
CITIBANK, N.A.
as Resigning Trustee
By: /s/ Nancy Forte
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Name: Nancy Forte
Title: Assistant Vice President
WILMINGTON TRUST COMPANY
as Successor Trustee
By: /s/ Geoffrey J. Lewis
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Name: Geoffrey J. Lewis
Title: Financial Services Officer
EXHIBIT A
Documents to be delivered to Successor Trustee
1. Conformed copy of the Indenture.
2. File of closing documents from initial issuance.
3. Copies of the most recent of each of the SEC reports delivered by the
Company pursuant to Section 7.04 of the Indenture.
4. A copy of the most recent compliance certificate delivered pursuant to
Section 10.04 of the Indenture.
5. Certified list of Holders as of _______, __, 2006 including certificate
detail and all "stop transfers" and the reason for such "stop
transfers" (or, alternatively, if there are a substantial number of
registered Holders, the computer tape reflecting the identity of such
Holders).
6. Copies of any official notices sent by the Trustee to all the Holders
of the Securities pursuant to the terms of the Indenture during the
past twelve months and a copy of the most recent Trustee's annual
report to Holders delivered pursuant to Section 7.03 of the Indenture.
7. List of any documents which, to the knowledge of Resigning Trustee, are
required to be furnished but have not been furnished to Resigning
Trustee.
EXHIBIT B
[COMPANY LETTERHEAD]
NOTICE
To the Holders of:
8.80% Sinking Fund Debentures due 2012 CUSIP # 044540 AH5
Medium-Term Notes, Series E CUSIP # 04454 CCW4
of ASHLAND INC.
NOTICE IS HEREBY GIVEN, pursuant to Section 6.10 of the Amendment and
Restatement as of August 15, 1990 of the Indenture dated as of August 15,
1989 (the "Indenture"), by and between Ashland Inc. (the "Company") and
Citibank, N.A., as Trustee, that Citibank, N.A. has resigned as Trustee
under the Indenture, but will retain the roles of Security Registrar and
Paying Agent.
Pursuant to Section 6.11 of the Indenture, Wilmington Trust Company, a
corporation duly organized and existing under the laws of the State of
Delaware, has accepted appointment as Trustee under the Indenture. The
address of the corporate trust office of the successor Trustee is 1100 N.
Market Street, Wilmington, Delaware 19890.
Citibank's resignation as Trustee and Wilmington Trust Company's
appointment as successor Trustee were effective as of the opening of
business on November 30, 2006.
Dated: November 30, 2006
ASHLAND INC.