EXHIBIT 99.2
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE dated as of September
23, 2005 (this "Agreement") by and among The Lubrizol Corporation, a corporation
duly organized and existing under the laws of the State of Ohio and having a
place of business at 00000 Xxxxxxxx Xxxx., Xxxxxxxxx, Xxxx 00000 (the
"Company"), X.X. Xxxxxx Trust Company, National Association, a national banking
association duly organized and existing under the laws of the United States of
America and having a principal corporate trust office at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "Resigning Trustee"), and Xxxxx Fargo Bank, N.A., a
national banking association duly organized and existing under the laws of the
United States of America and having a principal corporate trust office at MAC
E2616-293, 29th Floor, 000 X. Xxxxxx Xxxxxx, Xxxxxxx, XX 00000-0000 (the
"Successor Trustee").
RECITALS:
WHEREAS, there are presently outstanding under the Amended and Restated
Indenture dated as of September 28, 2004 (as amended and supplemented from time
to time, the "Indenture") between the Company, certain Subsidiary Guarantors and
the Resigning Trustee, $200,000,000 aggregate principal amount of 5.875%
debentures due December 1, 2008;
WHEREAS, Section 6.10 of the Indenture provides that the Trustee may at any
time resign by giving written notice of such resignation to the Company and by
mailing notice thereof to Holders of Securities as required by such Section
6.10, effective upon the acceptance by a successor Trustee of its appointment as
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 the retiring trustee an instrument accepting such
appointment under the Indenture, and thereupon the resignation of the retiring
trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, duties
and obligations of the retiring trustee;
WHEREAS, the Resigning Trustee has given written notice to the Company that
it is resigning as Trustee under the Indenture;
WHEREAS, the Company desires to have the Successor Trustee appointed as
Trustee to succeed the Resigning Trustee under the Indenture; and
WHEREAS, the Successor Trustee is willing to accept such appointment as
Trustee under the Indenture.
NOW, THEREFORE, the Company, the Resigning Trustee and the Successor
Trustee, for and in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby consent and agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
SECTION 101. Pursuant to Section 6.10 of the Indenture, the Resigning
Trustee hereby notifies the Company that the Resigning Trustee is hereby
resigning as Trustee under the Indenture effective as of the date hereof.
SECTION 102. The Resigning Trustee hereby represents and warrants to the
Successor Trustee that:
(a) No covenant or condition contained in the Indenture has been waived by
the Resigning Trustee or by the Holders of the percentage in aggregate
principal amount of the Securities required by the applicable
Indenture to affect any such waiver.
(b) There is no action, suit or proceeding pending or, to the best of the
knowledge of its Responsible Officers (as defined in the Indenture),
threatened against the Resigning Trustee before any court or any
governmental authority arising out of any action or omission by the
Resigning Trustee as Trustee under the Indenture.
(c) This Agreement has been duly authorized, executed and delivered on
behalf of the Resigning Trustee and, assuming it is duly authorized,
executed and delivered by the other parties hereto, constitutes the
legal, valid and binding obligation of the Resigning Trustee.
(d) It assumes continued responsibility for its actions or omissions
during its term as Trustee under the Indenture.
(e) The Resigning Trustee has made, or promptly will make, available to
the Successor Trustee originals, if available, or copies in its
possession, of all documents relating to the Securities and all
information in the possession of its corporate trust department
relating to the administration and status of the Securities; provided,
however, that any material that the Resigning Trustee deems
proprietary or confidential or subject to the attorney-client
privilege shall not be provided to the Successor Trustee.
SECTION 103. The Resigning Trustee hereby assigns, transfers, delivers and
confirms to the Successor Trustee all right, title and interest of the Resigning
Trustee in and to the trusts under the Indenture, and all the rights, powers,
trusts, duties and obligations of the Resigning Trustee under the Indenture and
all properties and monies held by such Resigning Trustee under the Indenture, if
any; provided, that the Successor Trustee shall have no liability or
responsibility under the Indenture, any related agreement or otherwise for any
period prior to the date of this Agreement or for any act or omission of the
Resigning Trustee (in its individual capacity, as Trustee, Security Registrar,
Paying Agent or otherwise) under or in connection with the Indenture or any
related agreement. The Resigning Trustee shall execute and deliver such further
instruments and shall do such other things as the Successor Trustee may
reasonably require so as to more fully and certainly vest and confirm in the
Successor Trustee all the rights, powers, trusts, duties and obligations hereby
assigned, transferred, delivered and confirmed to the Successor Trustee as
Trustee under the Indenture.
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SECTION 104. The Resigning Trustee shall deliver to the Successor Trustee
on, or immediately after, the effective date hereof, all the documents listed on
Exhibit A hereto.
SECTION 105. Promptly after the execution and delivery of this Agreement,
the Company shall cause a notice, substantially in the form of Exhibit B annexed
hereto, to be provided in accordance with the provisions of Section 6.11 of the
Indenture.
ARTICLE TWO
THE COMPANY
SECTION 201. The Company hereby accepts the resignation of the Resigning
Trustee as Trustee under the Indenture.
SECTION 202. Pursuant to Section 6.10 of the Indenture, the Company hereby
appoints the Successor Trustee as Trustee under the Indenture and confirms to
the Successor Trustee all the rights, powers, trusts, duties and obligations of
the Resigning Trustee under the Indenture and with respect to all properties and
monies held or to be held under the Indenture, with like effect as if the
Successor Trustee was originally named as Trustee under the Indenture. The
Company shall execute and deliver such further instruments and shall do such
other things as the Successor Trustee may reasonably require so as to more fully
and certainly vest and confirm in the Successor Trustee all the rights, powers,
trusts, duties and obligations hereby assigned, transferred, delivered and
confirmed to the Successor Trustee.
SECTION 203. The Company hereby represents and warrants to the Resigning
Trustee and the Successor Trustee that:
(a) The Company is a corporation duly and validly organized and existing
pursuant to the laws of the State of Ohio.
(b) The Indenture was validly and lawfully executed and delivered by the
Company and the Securities were validly issued by the Company.
(c) This Agreement has been duly authorized, executed and delivered on
behalf of the Company and constitutes its legal, valid and binding
obligation.
(d) All conditions precedent relating to the appointment of the Successor
Trustee as Trustee under the Indenture have been complied with by the
Company and a valid written instrument executed by authority of the
Company's Board of Directors, approving the resignation of the
Resigning Trustee, and appointing the Successor Trustee has been
delivered respectively to the Resigning Trustee and the Successor
Trustee.
SECTION 204. The Company hereby certifies that the person signing this
Agreement on behalf of the Company is authorized to, among other things: (a)
accept the Resigning Trustee's resignation as Trustee under the Indenture; (b)
appoint the Successor Trustee as Trustee under the Indenture; and (c) execute
and deliver such agreements and other instruments as may be
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necessary or desirable to effectuate the succession of the Successor Trustee as
Trustee under the Indenture.
SECTION 205. The Company hereby acknowledges and accepts the fee schedule
of the Successor Trustee for the Indenture attached hereto as Exhibit C.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
SECTION 301. The Successor Trustee hereby represents and warrants to the
Resigning Trustee and to the Company that this Agreement has been duly
authorized, executed and delivered on behalf of the Successor Trustee and
constitutes its legal, valid and binding obligation. The Successor Trustee
further represents and warrants to the Company that it is qualified and eligible
to serve as Trustee under Section 6.9 the Indenture and Section 310(b) of the
Trust Indenture Act of 1939, as amended, as in effect on the date hereof.
SECTION 302. Pursuant to Section 6.11 of the Indenture, the Successor
Trustee hereby accepts its appointment as Trustee under the Indenture and
accepts the rights, powers, trusts, duties and obligations of the 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,
subject, nonetheless, to the proviso in the first sentence of Section 103
hereof.
SECTION 303. References in the Indenture to the office of the Trustee or
other similar terms shall be deemed to refer to the Corporate Trust Office of
the Successor Trustee at MAC E2616-293, 29th Floor, 000 X. Xxxxxx Xx., Xxxxxxx,
XX 00000-0000 or any other office of the Successor Trustee at which, at any
particular time, its corporate trust business shall be administered.
ARTICLE FOUR
MISCELLANEOUS
SECTION 401. 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.
SECTION 402. This Agreement and the resignation, appointment and acceptance
effected hereby shall be effective as of the close of business on the date first
above written, upon the execution and delivery hereof by each of the parties
hereto.
SECTION 403. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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SECTION 404. 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.
SECT10N 405. Notwithstanding the resignation of the Resigning Trustee
effected hereby, the Company shall remain obligated under Section 6.6 of the
Indenture to compensate and reimburse the Resigning Trustee in connection with
its prior trusteeship under the Indenture.
SECTION 406. All notices, demands, requests or other communications
required to be given pursuant to the terms of the Indenture shall be provided
pursuant to the terms thereof to the Successor Trustee, pursuant to the
following instructions or to such other address, as it may communicate in
accordance herewith or with the Indenture:
TO THE COMPANY
The Lubrizol Corporation
Attention: Treasurer
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Fax: 000-000-0000
Tel: 000-000-0000
TO THE RESIGNING TRUSTEE
X.X. Xxxxxx Trust Company, National Association
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxx Xxxxxxx, Institutional Trust Services
Fax: 000-000-0000
Tel: 000-000-0000
TO THE SUCCESSOR TRUSTEE
Xxxxx Fargo Bank, N.A.
MAC E2616-293
29th Floor
000 X. Xxxxxx Xx.
Xxxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxx
Vice President
Fax: 000-000-0000
Tel: 000-000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed as of the day and
year first above written.
THE LUBRIZOL CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President and CFO
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION,
as Resigning Trustee
By /s/ Xxxxxx Xxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: X.X.
XXXXX FARGO BANK, N.A.,
as Successor Trustee
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
DOCUMENTS TO BE DELIVERED TO SUCCESSOR TRUSTEE
Documents to be delivered to the Successor Trustee (to the best of the ability
of the Resigning Trustee):
1. Executed copy of the Indenture and all amendments and supplements thereto.
2. File of closing documents.
3. Copies of the most recent of each of the SEC reports delivered by the
Company pursuant to Section 4.3 of the Indenture, if any.
4. A copy of the most recent compliance certificate delivered by the Company
pursuant to Section 3.5 of the Indenture, if any.
5. Copies of any official notices sent by the Resigning 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, if any.
EXHIBIT B
NOTICE
TO THE HOLDERS OF THE
5.875% Notes
Due December 1, 2008
Cusip # 000000XX0
Issued by The Lubrizol Corporation (the "Securities")
Re: Resignation of Trustee and Appointment of Successor Trustee
Ladies and Gentlemen:
Effective September 23, 2005, X.X. Xxxxxx Trust Company, National
Association has resigned as trustee with respect to the Securities issued under
the Amended and Restated Indenture dated as of September 28, 2004 (the
"Indenture"). Effective immediately, Xxxxx Fargo Bank, N.A. has been appointed
successor trustee with respect to the Securities issued under the Indenture.
The Corporate Trust Office of the Successor Trustee is:
Xxxxx Fargo Bank, N.A.
MAC E2616-293
29th Floor
000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
This office will be the Corporate Trust Office for all purposes under the
Indenture.
This notice is given pursuant to Section 6.11 of the Indenture.
THE LUBRIZOL CORPORATION
Date: September 23, 2005
EXHIBIT C
SCHEDULE OF TRUSTEE FEES
TO ACT AS TRUSTEE WITH RESPECT TO
5.875% NOTES
DUE DECEMBER 1, 2008
