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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 21, 1998
----------------
Merrill Lynch & Co., Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 1-7182 13-2740599
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(State or other (Commission (I.R.S.Employer
jurisdiction of File Number) Identification No.)
incorporation)
World Financial Center, North Tower, New York, New York 10281-1220
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 449-1000
--------------
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
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Item 5. Other Events
- ------- -------------
The exhibit attached hereto is filed in connection with the Registration
Statement on Form S-3 (File No. 333-59997) filed by Merrill Lynch & Co., Inc.
("ML & Co.") with the Securities and Exchange Commission covering Senior Debt
Securities issuable under an indenture dated as of April 1, 1983, as amended and
restated as of April 1, 1987 and as further amended, between ML & Co. and The
Chase Manhattan Bank (the "Indenture"). The exhibit consists of the Twelfth
Supplemental Indenture, dated as of September 1, 1998.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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EXHIBITS
(4)(a) Twelfth Supplemental Indenture, between Merrill Lynch &
Co., Inc. and The Chase Manhattan Bank, dated as of
September 1, 1998.
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
MERRILL LYNCH & CO., INC.
------------------------------
(Registrant)
By: /s/ Theresa Lang
-------------------------
Theresa Lang
Treasurer
Date: October 21, 1998
3
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
MERRILL LYNCH & CO., INC.
EXHIBITS TO CURRENT REPORT ON
FORM 8-K DATED OCTOBER 21, 1998
COMMISSION FILE NUMBER 1-7182
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EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
(4)(a) Twelfth Supplemental Indenture, between Merrill Lynch & Co., Inc.
and The Chase Manhattan Bank, dated as of September 1, 1998.
5
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EXHIBIT (4)(a)
MERRILL LYNCH & CO., INC.
TO
THE CHASE MANHATTAN BANK,
as Trustee
--------------------------------------
TWELFTH SUPPLEMENTAL INDENTURE
Dated as of September 1, 1998
--------------------------------------
Supplemental to Indenture
Dated as of April 1, 1983
and as Amended and Restated as of April 1, 1987
<PAGE>
TABLE OF CONTENTS
-----------------
TABLE OF CONTENTS
PAGE
----
Article I
DEFINITIONS
Section 1.01. Definitions......................................... 2
Article II
AMENDMENT OF CERTAIN PROVISIONS
OF THE PRINCIPAL INDENTURE
Section 2.01. Amendments.......................................... 3
Article III
MISCELLANEOUS
Section 3.01. Effect of Supplemental Indenture.................... 10
Section 3.02. Conflict with Trust Indenture Act................... 10
Section 3.03. Successors and Assigns.............................. 10
Section 3.04. Separability Clause................................. 10
Section 3.05. Benefits of Supplemental Indenture.................. 10
Section 3.06. Governing Law....................................... 10
Section 3.07. Execution in Counterparts........................... 11
Section 3.08. Responsibility for Recitals......................... 11
i
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This Twelfth Supplemental Indenture, dated as of September 1, 1998 (the
"Supplemental Indenture"), by and between Merrill Lynch & Co., Inc., a
corporation organized and existing under the laws of the State of Delaware,
having its principal office at World Financial Center, New York, New York 10281
(the "Company"), and The Chase Manhattan Bank, formerly known as Chemical Bank
(successor by merger to Manufacturers Hanover Trust Company), a corporation duly
organized and existing under the laws of the State of New York and having its
Corporate Trust Office at 450 West 33rd Street, New York, New York 10001, as
trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered its Indenture,
dated as of April 1, 1983 and restated as of April 1, 1987 (as amended and
supplemented to the date hereof, the "Principal Indenture"), to the Trustee to
provide for the issuance from time to time of its unsecured and unsubordinated
debentures, notes or other evidences of senior indebtedness (the "Securities"),
unlimited as to principal amount or aggregate issue price, as the case may be,
and
WHEREAS, the Principal Indenture, as amended by the Trust Indenture Reform
Act of 1990, and this Supplemental Indenture are hereinafter collectively
referred to as the "Indenture"; and
WHEREAS, the Company proposes to allow for terms of the Securities which
will permit or require the Company to pay and discharge the Securities when due
by delivering to the Holders thereof other securities (whether or not issued by,
or the obligations of, the Company) or a combination of cash, other securities
and/or other property, as provided herein; and
WHEREAS, Section 901 of the Principal Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Principal Indenture, in form satisfactory to the
Trustee, to make any provisions with respect to matters or questions arising
under the Principal Indenture which shall not be inconsistent with the
provisions of the Principal Indenture and which shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in
any material respect; and
WHEREAS, the Company has duly authorized the execution and delivery of this
Supplemental Indenture, and all things necessary to make this Supplemental
Indenture a valid agreement of the Company, in accordance with its terms, have
been done;
NOW, THEREFORE, the Company and the Trustee, in consideration of the
premises and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby covenant and agree, for the
equal and proportionate benefit of all Holders, as follows:
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ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. For all purposes of the Principal Indenture and
-----------
this Supplemental Indenture, except as otherwise expressly provided or unless
the context otherwise requires, the terms defined in this Article I have the
meanings assigned to them in this Article I. Capitalized terms used in the
Principal Indenture and this Supplemental Indenture but not defined herein are
used as they are defined in the Principal Indenture.
"Maturity" when used with respect to any Security means the date on
which the Maturity Consideration or an installment of such Maturity
Consideration of such Security becomes due and payable or deliverable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, request for redemption
or otherwise.
"Maturity Consideration" means the securities (whether or not issued
by, or the obligation of, the Company), the amount of cash (including
payment of principal and premium, if any), or a combination of cash,
securities and/or other property, in either case payable or deliverable
upon payment and discharge of the Securities of a series when due or upon
redemption as established in or pursuant to, from time to time, a Board
Resolution, and set forth in an Officers' Certificate or established in one
or more supplemental indentures.
"Paying Agent" means any Person authorized by the Company to pay or
deliver the Maturity Consideration or interest on any Securities on behalf
of the Company.
"Place of Payment" when used with respect to the Securities of any
series means the place or places where the Maturity Consideration and
interest on the Securities of that series are payable or deliverable as
provided pursuant to Section 301.
"Stated Maturity" when used with respect to any Security or any
installment of the Maturity Consideration or interest thereon means the
date specified in such Security or a coupon representing such installment
of interest as the fixed date on which the Maturity Consideration of such
Security or such installment of Maturity Consideration or interest is due
and payable or deliverable.
"Supplemental Indenture" has the meaning specified in the first
paragraph of this instrument.
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ARTICLE II.
AMENDMENT OF CERTAIN PROVISIONS
OF THE PRINCIPAL INDENTURE
Section 2.01 Amendments. The Principal Indenture is hereby amended with
----------
respect to all series of Securities issued on or after the date hereof as
follows:
(a) By deleting the first paragraph of Section 308 of the Principal
Indenture in its entirety and inserting in its stead the following:
"Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving delivery or payment of the Maturity Consideration in respect of,
and (subject to Sections 305 and 307) interest on, and Additional Amounts
with respect to, such Registered Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary."
(b) By amending Section 401 of the Principal Indenture by deleting clause
(2) in its entirety and inserting in its stead the following:
"(2) the Company has paid or delivered or caused to be paid or
delivered all other amounts or consideration payable or deliverable
hereunder by the Company; and"
(c) By deleting Section 402 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 402. Application of Trust Consideration. Subject to the
provisions of the last paragraph of Section 1003, all money and other
consideration deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this indenture, to the payment or delivery,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the Maturity Consideration, and any interest and
Additional Amounts for whose payment or delivery such money or other
consideration has been deposited with the Trustee, but such money or other
consideration need not be segregated from other funds or other property
except to the extent required by law."
(d) By deleting clause (2) of Section 501 of the Principal Indenture in
its entirety and inserting in its stead the following:
"(2) default in the delivery or payment of the Maturity Consideration
in respect of any Security of that series when it becomes due or payable or
deliverable; or"; and
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(e) By deleting Section 502 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount or, if such
Securities are not payable at Maturity for a fixed principal amount, 25% of
the aggregate issue price of the Outstanding Securities of that series may
declare the principal of all the Securities of such series, or such other
amount or property, as may be provided for in the Securities of that
series, to be due and payable immediately by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or such amount or property shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the Maturity Consideration due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in
principal amount or, if such Securities are not payable at Maturity for a
fixed principal amount, the aggregate issue price of the Outstanding
Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has deposited with or paid the Trustee
(A) the Maturity Consideration relating to any Securities of that
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by or
provided for in such Securities,
(B) all overdue installments of interest on and any Additional
Amounts payable in respect of all Securities of that series,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest and Additional Amounts at the rate
or rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel,
and
(2) all Events of Default with respect to Securities of that series,
other than the non-delivery or non-payment of the Maturity Consideration
with respect to such series due solely by reason of such declaration of
acceleration, have been cured or waived as provided in Section 513.
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No such rescission shall affect any subsequent default or impair any
right consequent thereon."
(f) By deleting the first paragraph of Section 503 of the Principal
Indenture in its entirety and inserting in its stead the following:
"The Company covenants that if,
(1) default is made in the payment of any installment of
interest on or any Additional Amounts payable in respect of any
Securities when such interest or such Additional Amounts shall
have become due and payable and such default continues for a
period of 30 days, or
(2) default is made in the delivery or payment of the
Maturity Consideration relating to any Security when due,
the Company will, upon demand of the Trustee, deliver or pay to it, for the
benefit of the Holders of such Securities and coupons, the whole amount
and/or other consideration then due and payable or deliverable on such
Securities and coupons for Maturity Consideration and interest and
Additional Amounts, if any, with interest upon the overdue Maturity
Consideration and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest or any
Additional Amounts, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to deliver or to pay such amounts and/or other
consideration forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the
collection of such amounts and/or other consideration so due and
undelivered or unpaid, and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys and/or other
consideration adjudged or decreed to be deliverable or payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated."
(g) By deleting Section 506 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 506. Application of Money and Other Consideration Collected.
Any money or other consideration collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money or other
consideration on account of the Maturity Consideration, interest or any
Additional Amounts, upon presentation of the relevant Securities or
coupons, or both, as the case may be and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of any amounts then due and unpaid on the
Securities and coupons for Maturity Consideration and interest and any
Additional Amounts payable in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and
payable on such Securities and coupons for Maturity Consideration and
interest and any Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto."
(h) By deleting Section 507 (2) and (5) of the Principal Indenture in
their entirety and inserting in their stead the following:
"(2) The Holders of not less than 25% in principal amount or, if such
Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;"
"(5) No direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount or, if such Securities are not payable at Maturity for
a fixed principal amount, aggregate issue price of the Outstanding
Securities of that series;"
(i) By deleting Section 508 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 508. Unconditional Right of Holders to Receive the Maturity
Consideration and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right, which
is absolute and unconditional, to receive delivery or payment of the
Maturity Consideration relating to, and (subject to Sections 305 and 307)
interest on and any Additional Amounts payable in respect of, such Security
or payment of such coupon on the respective Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
delivery or payment, and such right shall not be impaired without the
consent of such Holder."
(j) By deleting the first clause of the first sentence of Section 513 of
the Principal Indenture in its entirety and inserting in its stead the
following:
"(1) in the delivery or payment of the Maturity
Consideration or interest on or Additional Amounts payable in
respect of any Securities of such series, or"
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(k) By deleting Section 801 of the Principal Indenture in its entirety and
inserting in its stead the following:
"SECTION 801. Consolidations and Mergers of the Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The
Company may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided
that in any such case, (i) either the Company shall be the continuing
corporation, or the successor corporation shall be a corporation organized
and existing under the laws of the United States of America or a State
thereof and such successor corporation shall expressly assume the due and
punctual delivery or payment of the Maturity Consideration in respect of,
any interest on, and any Additional Amounts payable pursuant to Section
1004 with respect to, all the Securities, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation, and (ii) the Company or such successor
corporation, as the case may be, shall not, immediately after such merger
or consolidation, or such sale, lease or conveyance, be in default in the
performance of any such covenant or condition."
(l) By deleting the first sentence of Section 902 of the Principal
Indenture in its entirety and inserting in its stead the following:
"With the consent of the Holders of not less than 66 2/3% of the
principal amount or, in the case of Securities which are not payable at
Maturity for a fixed principal amount, the aggregate issue price of the
Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the Maturity Consideration
of, or any installment of interest or Additional Amounts on, any
Security, or reduce the principal amount thereof or reduce the
amount or change the type of Maturity Consideration or reduce the
rate of interest thereon or any Additional Amounts payable in
respect thereof, or change the obligation of the Company to pay
Additional Amounts pursuant to Section 1004 (except as
contemplated by 801(i) and permitted by Section 901(1)), or
reduce the amount of Maturity Consideration of an Original Issue
Discount Security that would be due and deliverable or payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or, change any Place of Payment where,
or the coin or currency in which, any Maturity Consideration,
interest or Additional Amounts on any Security are deliverable or
payable, or change the provisions with respect
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to redemption, or impair the right to institute suit for the
enforcement of delivery or payment on or with respect to any
Securities on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount or aggregate
issue price, as the case may be, of the Outstanding Securities of
any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is
required for waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this Section, or Section
513, or Section 1007, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby."
(m) By deleting Section 1001 of the Principal Indenture in its entirety
and inserting in its stead the following:
"Section 1001. Delivery or Payment of Maturity Consideration and
Interest. The Company covenants and agrees for the benefit of the Holders
of each series of Securities that it will duly and punctually deliver or
pay the Maturity Consideration and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining thereto and
this Indenture. Any interest due on and any Additional Amounts payable in
respect of Bearer Securities on or before Maturity, other than Additional
Amounts, if any, payable as provided in Section 1004 in respect of
principal of (or premium, if any, on) such a Security, shall be payable
only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature."
(n) By deleting Section 1003 of the Principal Indenture in its entirety
and inserting in its stead the following:
"SECTION 1003. Money or Other Consideration for Security Payments to
Be Held in Trust. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each
due date of the Maturity Consideration or interest on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto consideration in an amount sufficient to deliver or pay
the Maturity Consideration or a sum sufficient to pay the interest so
becoming due until such consideration shall be delivered or paid to such
Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents with respect
to any series of Securities, it will, on or prior to each due date of the
Maturity Consideration or interest on any Securities of that series,
deposit with a Paying Agent consideration in an amount sufficient to
deliver or pay the Maturity Consideration or a sum sufficient to pay the
interest so becoming due, such consideration to be held as provided by the
Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as Paying Agent,
(ii) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any delivery
or payment of Maturity Consideration or interest on the Securities of that
series; and (iii) during the continuance of any such default, upon the
written request of the Trustee, forthwith deliver or pay to the Trustee all
consideration so held in trust by such Paying Agent.
The Company may at any time, for any purpose, deliver or pay, or by
Company Order direct any Paying Agent to deliver or pay, to the Trustee all
consideration held in trust by the Company or such Paying Agent, such
consideration to be held by the Trustee upon the same trusts as those upon
which such consideration was held by the Company or such Paying Agent; and,
upon such delivery or payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to
such consideration.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any
consideration deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the interest on or delivery or
payment upon discharge of any Securities of any series and remaining
unclaimed for two years after such consideration has become due and
deliverable or payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
delivery or payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust consideration, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment or to be mailed
to Holders of the Registered Securities, or both, notice that such
consideration remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such consideration then remaining will be
delivered or repaid to the Company."
(o) By amending Article Fifteen to include the following new section:
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"SECTION 1502. Maturity Consideration. If the Securities of any
series provide for the payment or delivery of any Maturity Consideration
other than money, the Company will pay or deliver, as the case may be, to
the Holder of any such Security, the Maturity Consideration as provided
therein. Whenever in this Indenture there is mentioned the payment of
money in respect of the principal of (or premium, if any) any Security of
any series, such mention shall be deemed to include the payment or delivery
of consideration other than money to the extent that such payment or
delivery is permitted or required by the terms of the Securities of any
series. Express mention of the payment or delivery of Maturity
Consideration in any provision herein shall not be construed as excluding
Maturity Consideration other than money where such express mention is not
made.
If any of the Securities of any series are not payable at Maturity for
a fixed principal amount, all references herein to the principal amount of
such Securities shall be deemed to include mention of the aggregate issue
price of such Securities, as the context requires. Express reference to the
issue price or aggregate issue price of any Securities of any series in any
provision herein shall not be construed as excluding such references where
such express reference is not made."
ARTICLE III.
MISCELLANEOUS
Section 3.01 Effect of Supplemental Indenture. The Principal Indenture,
--------------------------------
as supplemented and amended by this Supplemental Indenture and all other
indentures supplemental thereto, is in all respects ratified and confirmed, and
the Principal Indenture, this Supplemental Indenture and all indentures
supplemental thereto shall be read, taken and construed as one and the same
instrument.
Section 3.02 Conflict with Trust Indenture Act. If any provision hereof
---------------------------------
limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Supplemental Indenture by any of the provisions
of the Trust Indenture Act, such required or deemed included provision shall
control.
Section 3.03 Successors and Assigns. All covenants and agreements in this
----------------------
Supplemental Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 3.04 Separability Clause. In case any provision in this
-------------------
Supplemental Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions (or of the other series of Securities) shall not in any way be
affected or impaired thereby.
Section 3.05 Benefits of Supplemental Indenture. Nothing in this
----------------------------------
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto and their
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successors hereunder and the Holders of Securities issued after the date hereof,
any benefit or any legal or equitable right, remedy or claim under this
Supplemental Indenture.
Section 3.06 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED
-------------
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Section 3.07 Execution in Counterparts. This Supplemental Indenture 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.
Section 3.08 Responsibility for Recitals. The recitals contained herein
---------------------------
shall be taken as statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of the Principal Indenture or this Supplemental
Indenture.
11
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
MERRILL LYNCH & CO., INC.
By: /s/ Michael J. Castellano
---------------------------
Name: Michael J. Castellano
Title: Senior Vice President and Controller
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Andrew M. Deck
-----------------------
Name: Andrew M. Deck
Title: Vice President
12
