1
EXHIBIT 4.a.ii
AGREEMENT OF APPOINTMENT
AND
ACCEPTANCE OF SUCCESSOR TRUSTEE
THIS AGREEMENT dated as of July 25, 1994 (the "Agreement"), is among
Masco Corporation (the "Company"), Xxxxxx Guaranty Trust Company of New York
("Xxxxxx") 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 Xxxxxx (the "Indenture") provides that the Trustee
thereunder may resign at any time by giving written notice of such resignation
to the Company;
WHEREAS, Xxxxxx 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, Xxxxxx
and First Chicago hereby covenant and agree as follows:
1. The Company hereby accepts the resignation of Xxxxxx 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, Xxxxxx 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 the close of business on the date hereof, and hereby
vests in First Chicago all the rights, powers, trusts, immunities, duties and
obligations which Xxxxxx now holds under and by virtue of the Indenture with
like effect as if originally named as Trustee in the Indenture.
2
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
Xxxxxx 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, Xxxxxx 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 Xxxxxx 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 Xxxxxx as Trustee under the Indenture.
6. In accordance with Section 6.11 of the Indenture, the Company and
Xxxxxx, 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
Xxxxxx now holds under and by virtue of the Indenture.
7. Promptly after the execution hereof, Xxxxxx shall mail the notice of
the resignation of Xxxxxx 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.
-2-
3
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. Xxxxxx hereby represents and warrants to First Chicago that: (a) no
covenant or condition contained in the Indenture has been waived by Xxxxxx or,
to the best of the knowledge of the officers assigned to Xxxxxx'x 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 Xxxxxx'x Corporate Trust Department, threatened against
Xxxxxx before any court or any governmental authority arising out of any action
or omission by Xxxxxx as Trustee under the Indenture; (c) to the best of the
knowledge of the officers assigned to Xxxxxx'x 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) Xxxxxx 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 Xxxxxx as promptly as practicable following
the request of Xxxxxx any such original documents which Xxxxxx may need to
defend against any action, suit or proceeding against Xxxxxx as Trustee or which
Xxxxxx may need for any other proper purpose.
12. The Company hereby represents and warrants to First Chicago and
Xxxxxx 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.
-3-
4
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/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
[Seal]
Attest:
/s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------
Secretary
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as resigning
Trustee
By:/s/Xxxxx X. Xxxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
[Seal]
Attest:
/s/ M. E. XxXxxxx
-----------------
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as successor Trustee
By:/s/ X. X. Xxxxxxx
-----------------
Name: X. X. Xxxxxxx
Title: Vice President
[Seal]
Attest:
/s/ Xxxxx Xxxxx
---------------
Trust Officer
-4-
5
State of Michigan)
) ss
County of Xxxxx)
On the 22nd day of July, 1994, before me personally came Xxxxxx Xxxxxx,
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/ Xxxxx X. Xxxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxxx
Notary Public
Xxxxx 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 Xxxxx X.
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is a Vice President of Xxxxxx 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/ Xxxxxx X. Xxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxx
Notary Public
State of New York
No. 00-0000000
Qualified in Kings County
My Comm Exp.: May 11, 1996
[NOTARIAL SEAL]
-5-
6
State of Illinois)
) ss
County of Xxxx )
On the 22nd day of July, 1994, before me personally came X. X. Xxxxxxx,
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/ X. X. Xxxxxxxxx
---------------------
X. X. Xxxxxxxxx
Notary Public
State of Illinois
My Comm Exp.: Sept. 1, 1997
[NOTARIAL SEAL]
-6-
7
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% NOTES DUE JUNE 15, 1995
6% NOTES DUE SEPTEMBER 15, 1999
7% DEBENTURES DUE AUGUST 15, 2013
6% 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 XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
("XXXXXX GUARANTY"), UNDER WHICH THE ABOVE-REFERENCED SECURITIES WERE ISSUED:
1. XXXXXX 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
X/X XXXXX XXXXXXX XXXXX XXXXXXX XX XXX XXXX
00 XXXX XXXXXX, 0XX XXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: CORPORATE TRUST ADMINISTRATION
DATED: JULY 25, 1994
MASCO CORPORATION XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
