THIRD SUPPLEMENTAL SUBORDINATED INDENTURE
BETWEEN
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
AND
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
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Dated as of June 1, 1997
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SUPPLEMENTAL TO SUBORDINATED INDENTURE
DATED AS OF APRIL 15, 1989 BETWEEN XXXXXX
XXXXXXX GROUP INC. AND THE FIRST NATIONAL
BANK OF CHICAGO AS TRUSTEE, AS SUPPLEMENTED
BY A FIRST SUPPLEMENTAL SUBORDINATED INDENTURE
DATED AS OF MAY 15, 1991 AND A SECOND SUPPLEMENTAL
SUBORDINATED INDENTURE DATED AS OF APRIL 15, 1996
THIRD SUPPLEMENTAL SUBORDINATED INDENTURE, dated as of June 1,
1997 between XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO., a Delaware
corporation (the "Successor Corporation" and hereinafter the "Issuer"), and
THE FIRST NATIONAL BANK OF CHICAGO, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, Xxxxxx Xxxxxxx Group Inc. ("Xxxxxx Xxxxxxx") and the
Trustee are parties to that certain Subordinated Indenture dated as of April
15, 1989, as supplemented by a First Supplemental Subordinated Indenture dated
as of May 15, 1991 and a Second Supplemental Subordinated Indenture dated as
of April 15, 1996 (such Indenture as so supplemented, the "Indenture");
WHEREAS, as of May 31, 1997, Xxxxxx Xxxxxxx merged with and
into Xxxx Xxxxxx, Discover & Co., which continued as the successor corporation
and changed its name to Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.;
WHEREAS, Section 9.1 of the Indenture requires the Successor
Corporation to expressly assume the obligations of Xxxxxx Xxxxxxx under the
Indenture in a supplemental indenture satisfactory to the Trustee;
WHEREAS, pursuant to and in compliance with Section 9.2 of the
Indenture, the Successor Corporation shall succeed to and be substituted for
Xxxxxx Xxxxxxx under the Indenture as "Issuer," with the same effect as if it
had been named therein;
WHEREAS, Section 8.1 of the Indenture provides that, without
the consent of the Holders of any Securities or Coupons, the Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may
enter into indentures supplemental to the Indenture for the purpose of,
among other things, evidencing the succession of another corporation to the
Issuer and the assumption by the successor corporation of the covenants,
agreements and obligations of the Issuer and making any provisions as the
Issuer may deem necessary or desirable, subject to the conditions set forth
therein;
WHEREAS, the Issuer desires to add to and modify certain
provisions of the Indenture to reflect a modification of the officers of the
Issuer who are authorized to execute certain documents in connection with the
issuance of Securities;
WHEREAS, the entry into this Third Supplemental Subordinated
Indenture by the parties hereto is in all respects authorized by the
provisions of the Indenture; and
WHEREAS, all things necessary to make this Third Supplemental
Subordinated Indenture a valid indenture and agreement according to its terms
have been done;
NOW, THEREFORE, for and in consideration of the premises, the
Issuer and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective Holders from time to time of the
Securities and of the Coupons, if any, appertaining thereto as follows:
ARTICLE 1
Section 1.1. Assumption of Obligations by Successor
Corporation. Pursuant to Section 9.1 of the Indenture, the Successor
Corporation does hereby: (i) expressly assume the due and punctual payment of
the principal of and interest on all the Securities and Coupons, if any,
according to their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of the Indenture to be performed or
observed by Xxxxxx Xxxxxxx; (ii) agrees to succeed to and be substituted for
Xxxxxx Xxxxxxx under the Indenture with the same effect as if it had been
named therein; and (iii) represent that it is not in default in the
performance of any such covenant and condition.
Section 1.2. Amendment of Section 1.1. Section 1.1 of the
Indenture is hereby amended by
(a) deleting the definition of "Issuer Order" and inserting in
lieu thereof the following: " 'Issuer Order' means a written statement,
request or order of the Issuer signed in its name by any one of the
following: the Chairman of the Board, the President, the Chief Financial
Officer, the Chief Strategic and Administrative Officer, the Chief Legal
Officer, the Treasurer, any Assistant Treasurer or any other person
authorized by the Board of Directors to execute any such written statement,
request or order."; and
(b) deleting in the definition of "Officer's Certificate" the
first sentence and inserting in lieu thereof the following: " 'Officer's
Certificate' means a certificate signed by any one of the following: the
Chairman of the Board, the President, the Chief Financial Officer, the
Chief Strategic and Administrative Officer, the Chief Legal Officer, the
Treasurer, any Assistant Treasurer or any other person authorized by the
Board of Directors to execute any such certificate and delivered to the
Trustee."
Section 1.3. Amendment of Section 2.5. Section 2.5 of the
Indenture shall be amended by deleting the first sentence of the first
paragraph and inserting in lieu thereof the following:
"The Securities and, if applicable, each Coupon appertaining
thereto shall be signed on behalf of the Issuer by any one of the
following: the Chairman of the Board, the President, the Chief
Financial Officer, the Chief Strategic and Administrative Officer,
the Chief Legal Officer, the Treasurer, any Assistant Treasurer or
any other person authorized by the Board of Directors to execute
Securities or, if applicable, Coupons, which Securities or Coupons
may, but need not, be attested."
ARTICLE 2
Miscellaneous
Section 2.1. Further Assurances. The Issuer will, upon
request by the Trustee, execute and deliver such further instruments and do
such further acts as may reasonably be necessary or proper to carry out more
effectively the purposes of this Third Supplemental Subordinated Indenture.
Section 2.2. Other Terms of Indenture. Except insofar as
herein otherwise expressly provided, all the provisions, terms and conditions
of the Indenture are in all respects ratified and confirmed and shall remain
in full force and effect.
Section 2.3. Terms Defined. All terms defined elsewhere in
the Indenture shall have the same meanings when used herein.
Section 2.4. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF
NEW YORK SHALL GOVERN THIS THIRD SUPPLEMENTAL SUBORDINATED INDENTURE.
Section 2.5. Multiple Counterparts. This Third Supplemental
Subordinated Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original for all purposes, but such
counterparts shall together be deemed to constitute but one and the same
instrument.
Section 2.6. Responsibility of Trustee. The recitals
contained herein shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Third Supplemental Subordinated Indenture.
Section 2.7. Agency Appointments. The Issuer hereby
confirms and agrees to all agency appointments made by Xxxxxx Xxxxxxx under
or with respect to the Indenture or the Securities and hereby expressly
assumes the due and punctual performance and observance of all the
covenants and conditions to have been performed or observed by Xxxxxx
Xxxxxxx contained in any agency agreement entered into by Xxxxxx Xxxxxxx
under or with respect to the Indenture or the Securities.
* * * * * * * * * * * * * *
IN WITNESS WHEREOF, this Third Supplemental Subordinated
Indenture has been duly executed by the Issuer and the Trustee as of the
day and year first written above.
XXXXXX XXXXXXX, XXXX
XXXXXX, DISCOVER & CO.
By: _____________________
Title:
Attest:
By: ___________________
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By: ______________________
Title:
Attest:
By: ____________________
Title:
