Exhibit 4.a
AGREEMENT OF APPOINTMENT
AND
ACCEPTANCE OF SUCCESSOR TRUSTEE
THIS AGREEMENT dated as of July 25, 1994 (the "Agreement"), is among
Masco Corporation (the "Company"), Morgan Guaranty Trust Company of New
York ("Morgan") and The First National Bank of Chicago ("First Chicago").
WHEREAS, Section 6.10 of the Indenture dated as of December 1, 1982
between the Company and Morgan (the "Indenture") provides that the Trustee
thereunder may resign at any time by giving written notice of such
resignation to the Company;
WHEREAS, Morgan gave such written notice, dated July 11, 1994, to the
Company;
WHEREAS, Section 6.10 of the Indenture provides that in case the
Trustee shall resign, the Company shall promptly appoint a successor
Trustee thereunder;
WHEREAS, the Company's Board of Directors authorized the appointment
of First Chicago as successor Trustee under the Indenture; and
WHEREAS, Section 6.11 of the Indenture provides that any successor
Trustee appointed thereunder shall execute, acknowledge and deliver to the
Company and the resigning Trustee thereunder an instrument accepting such
appointment, and thereupon the resignation of such resigning Trustee shall
become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts,
immunities, duties and obligations of the resigning Trustee thereunder,
with like effect as if originally named as Trustee therein.
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for and in
consideration of the premises and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company,
Morgan and First Chicago hereby covenant and agree as follows:
1. The Company hereby accepts the resignation of Morgan as Trustee
under the Indenture, such resignation to become effective at the close of
business on the date hereof. From the close of business on the date hereof
and except as otherwise provided for herein, Morgan shall have no further
responsibility for the exercise of the rights and powers or for the
performance of the trusts and duties vested in the Trustee under the
Indenture.
2. Pursuant to Section 6.10 of the Indenture, and in accordance
with the resolutions duly adopted by the Company's Board of Directors, the
Company hereby confirms its appointment of First Chicago as successor
Trustee under the Indenture, effective as of
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the close of business on the date hereof, and hereby vests in First Chicago
all the rights, powers, trusts, immunities, duties and obligations which
Morgan now holds under and by virtue of the Indenture with like effect as
if originally named as Trustee in the Indenture.
3. First Chicago hereby represents that it is qualified and
eligible under Article Six of the Indenture and under the Trust Indenture
Act of 1939, as amended, to accept appointment as successor Trustee under
the Indenture.
4. First Chicago hereby accepts, as of the close of business on
the date hereof, its appointment as successor Trustee under the Indenture
and assumes the rights, powers, trusts, immunities, duties and obligations
which Morgan now holds under and by virtue of the Indenture, upon the
terms and conditions set forth therein.
5. In accordance with Section 6.11 of the Indenture, Morgan hereby
confirms, assigns, transfers and sets over to First Chicago, as successor
Trustee under the Indenture, all rights, powers, trusts, immunities, duties
and obligations which Morgan now holds under and by virtue of the
Indenture, and does hereby assign, transfer and deliver to First Chicago, as
such Trustee, all property and money held by Morgan as Trustee under the
Indenture.
6. In accordance with Section 6.11 of the Indenture, the Company
and Morgan, for the purpose of more fully and certainly vesting in and
confirming to First Chicago, as successor Trustee under the Indenture, the
rights, powers, trusts, immunities, duties and obligations of such Trustee
with like effect as if originally named as Trustee in the Indenture, agree
upon reasonable request of First Chicago to execute, acknowledge and
deliver such further instruments of conveyance and further assurance and to
do such other things as may be reasonably required for more fully and
certainly vesting and confirming in First Chicago all rights, powers,
trusts, immunities, duties and obligations which Morgan now holds under and
by virtue of the Indenture.
7. Promptly after the execution hereof, Morgan shall mail the
notice of the resignation of Morgan and the succession of First Chicago as
successor Trustee in accordance with Sections 6.10 and 6.11 of the
Indenture. Such notice shall be in the form attached hereto as Exhibit A.
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8. This Agreement may be executed in any number of counterparts
all of which taken together shall constitute one and the same Agreement,
and any of the parties hereto may execute this Agreement by signing any
such counterpart.
9. This Agreement shall be governed by the laws of the State of
New York, both in interpretation and performance.
10. Unless otherwise defined, all terms used herein with initial
capital letters shall have the meaning given them in the Indenture.
11. Morgan hereby represents and warrants to First Chicago that:
(a) no covenant or condition contained in the Indenture has been waived by
Morgan or, to the best of the knowledge of the officers assigned to
Morgan'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 of the knowledge of the officers assigned to Morgan's
Corporate Trust Department, threatened against Morgan before any court or
any governmental authority arising out of any action or omission by Morgan
as Trustee under the Indenture; (c) to the best of the knowledge of the
officers assigned to Morgan's Corporate Trust Department, no Event of
Default, or event which, with the giving of notice or passage of time or
both, would become an Event of Default, has occurred and is continuing; and
(d) Morgan has furnished, or as promptly as practicable will furnish, to
First Chicago originals of all documents relating to the trust created by
the Indenture and all material information in its possession relating to
the administration and status thereof and will furnish to First Chicago any
of such documents or information First Chicago may reasonably request,
provided that First Chicago will make available to Morgan as promptly as
practicable following the request of Morgan any such original documents
which Morgan may need to defend against any action, suit or proceeding
against Morgan as Trustee or which Morgan may need for any other proper
purpose.
12. The Company hereby represents and warrants to First Chicago and
Morgan that no Event of Default, or event which, with the giving of notice
or passage of time or both, would become an Event of Default, has occurred
and is continuing.
13. Except as hereinabove expressly set forth, all other terms and
provisions set forth in the Indenture shall remain in full force and effect
and without any change whatsoever being made hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and acknowledged as of the date first written above.
MASCO CORPORATION
By:/s/ Gerald Bright
Name: Gerald Bright
Title: Vice President
[Seal]
Attest:
/s/ Eugene A. Gargaro, Jr.
Secretary
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as resigning
Trustee
By:/s/David K. Leverich
Name: David K. Leverich
Title: Vice President
[Seal]
Attest:
/s/ M. E. McNulty
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as successor Trustee
By:/s/ R. D. Manella
Name: R. D. Manella
Title: Vice President
[Seal]
Attest:
/s/ Jamie Arlow
Trust Officer
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State of Michigan)
) ss
County of Wayne)
On the 22nd day of July, 1994, before me personally came Gerald
Bright, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of Masco Corporation, the corporation described in
and which executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/ Nancy S. Steinrock
Nancy S. Steinrock
Notary Public
Wayne County, Michigan
My Comm Exp.: Nov. 9, 1994
[NOTARIAL SEAL]
State of New York )
) ss
County of New York)
On the 22nd day of July, 1994, before me personally came David K.
Leverich, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of Morgan Guaranty Trust Company of New York, the
corporation described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the
said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation; and that he signed his name
thereto by like authority.
/s/ Thomas J. Courtney
Thomas J. Courtney
Notary Public
State of New York
No. 24-4996233
Qualified in Kings County
My Comm Exp.: May 11, 1996
[NOTARIAL SEAL]
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State of Illinois)
) ss
County of Cook )
On the 22nd day of July, 1994, before me personally came R. D.
Manella, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of The First National Bank of Chicago, the
corporation described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the
said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation; and that he signed his name
thereto by like authority.
/s/ C. J. Bertelson
C. J. Bertelson
Notary Public
State of Illinois
My Comm Exp.: Sept. 1, 1997
[NOTARIAL SEAL]
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Exhibit A
NOTICE OF RESIGNATION OF TRUSTEE
AND
APPOINTMENT OF SUCCESSOR TRUSTEE
To the Holders of the following Securities of Masco Corporation:
9% Notes Due April 15, 1996
9% Notes Due October 1, 2001
6-1/4% Notes Due June 15, 1995
6-5/8% Notes Due September 15, 1999
7-1/8% Debentures Due August 15, 2013
6-1/8% Notes Due September 15, 2003
NOTICE IS HEREBY GIVEN THAT, pursuant to Sections 6.10 and 6.11 of
the Indenture (the "Indenture") dated as of December 1, 1982 between Masco
Corporation (the "Company") and Morgan Guaranty Trust Company of New York
("Morgan Guaranty"), under which the above-referenced Securities were
issued:
1. Morgan Guaranty has resigned as Trustee under the Indenture.
2. The Company has appointed The First National Bank of Chicago ("First
Chicago") as successor Trustee under the Indenture, and First Chicago
has accepted such appointment.
3. The following is the office or agency of the Company where securities
issued under the Indenture may be presented for payment, or presented
for registration of transfer or for exchange as provided in the
Indenture and where notices and demands to or upon the Company in
respect of any of the Securities issued under the Indenture or the
Indenture may be served:
The First National Bank of Chicago
c/o First Chicago Trust Company of New York
14 Wall Street, 8th Floor
New York, New York 10005
Attention: Corporate Trust Administration
Dated: July 25, 1994
MASCO CORPORATION MORGAN GUARANTY TRUST COMPANY
OF NEW YORK