EXHIBIT 4.16
THIRD SUPPLEMENTAL SENIOR INDENTURE
BETWEEN
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
AND
THE CHASE MANHATTAN BANK, Trustee
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Dated as of June 1, 1997
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SUPPLEMENTAL TO SENIOR INDENTURE DATED
AS OF APRIL 15, 1989 BETWEEN XXXXXX XXXXXXX GROUP
INC. AND THE CHASE MANHATTAN BANK (FORMERLY KNOWN
AS CHEMICAL BANK) AS TRUSTEE, AS SUPPLEMENTED BY A FIRST SUPPLEMENTAL SENIOR
INDENTURE DATED AS OF MAY 15, 1991 AND A SECOND SUPPLEMENTAL SENIOR INDENTURE
DATED AS OF APRIL 15, 1996
THIRD SUPPLEMENTAL SENIOR 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 CHASE
MANHATTAN BANK (formerly known as Chemical Bank), 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 Senior Indenture dated as of April 15,
1989, as supplemented by a First Supplemental Senior Indenture dated as of May
15, 1991 and a Second Supplemental Senior 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, adding to the covenants of the Issuer such further covenants,
restrictions, conditions, or provisions as the Trustee and the Issuer shall
consider to be for the protection of the Holders of Securities or Coupons or
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 (1) a modification of the officers of
the Issuer who are authorized to execute certain documents in connection with
the issuance of Securities and (2) a modification of the negative pledge
covenant of the Issuer;
WHEREAS, the entry into this Third Supplemental Senior
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
Senior 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 such other person specifically designated 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 such other person specifically designated 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 such other person specifically
designated by the Board of Directors to execute Securities or, if
applicable, Coupons, which Securities or Coupons may, but need not, be
attested."
Section 1.4. Amendment to Section 3.6. Section 3.6 of the
Indenture is hereby amended and restated to read in its entirety as follows:
"SECTION 3.6 Negative Pledge. Neither the Issuer nor any
successor corporation will, or will permit any Subsidiary (as hereinafter
defined) to, create, assume, incur or guarantee any indebtedness for borrowed
money secured by a pledge, lien or other encumbrance (except for Permitted
Liens, as hereinafter defined) on (i) the Voting Securities (as hereinafter
defined) of Xxxxxx Xxxxxxx & Co. Incorporated, a Delaware corporation and a
wholly owned subsidiary of the Issuer, Xxxxxx Xxxxxxx & Co. International
Limited, an English company and an indirect wholly owned subsidiary of the
Issuer, Greenwood Trust Company, a Delaware chartered bank and an indirect
wholly owned subsidiary of the Issuer, Xxxx Xxxxxx Xxxxxxxx Inc., a Delaware
corporation and a wholly owned subsidiary of the Issuer, or any Subsidiary
succeeding to any substantial part of the business now conducted by any of
such corporations (collectively, the "Principal Subsidiaries") or (ii) Voting
Securities of a Subsidiary that owns, directly or indirectly, Voting
Securities of any of the Principal Subsidiaries (other than directors'
qualifying shares) unless the Issuer shall cause the Securities to be secured
equally and ratably with (or, at the Issuer's option, prior to) any
indebtedness secured thereby. "Subsidiary" means any corporation, partnership
or other entity of which at the time of determination the Issuer owns or
controls directly or indirectly more than 50% of the shares of voting stock or
equivalent interest. "Permitted Liens" means liens for taxes or assessments or
governmental charges or levies not then due and delinquent or the validity of
which is being contested in good faith or which are less than $1,000,000 in
amount, liens created by or resulting from any litigation or legal proceeding
which is currently being contested in good faith by appropriate proceedings or
which involves claims of less than $1,000,000, deposits to secure (or in lieu
of) surety, stay, appeal or customs bonds and such other liens as the Board of
Directors of the Issuer determines do not materially detract from or interfere
with the present value or control of the Voting Securities subject thereto or
affected thereby. "Voting Securities" means stock of any class or classes
having general voting power under ordinary circumstances to elect a majority
of the board of directors, managers or trustees of the Subsidiary in question,
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened."
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 Senior 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 SENIOR INDENTURE.
Section 2.5. Multiple Counterparts. This Third Supplemental
Senior 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 Senior 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 Senior 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: ___________________
Assistant Secretary
THE CHASE MANHATTAN
BANK, as Trustee
By: ______________________
Title:
Attest:
By: ____________________
Title:
