Exhibit 12
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FIRST SUPPLEMENTAL SUBORDINATED INDENTURE
AMONG
XXXXXX XXXXXXX FINANCE PLC, Issuer
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO., Guarantor
AND
THE CHASE MANHATTAN BANK, Trustee
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Dated as of June 1, 1997
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SUPPLEMENTAL TO SUBORDINATED INDENTURE
DATED AS OF NOVEMBER 15, 1993
AMONG XXXXXX XXXXXXX FINANCE PLC, AS ISSUER,
XXXXXX XXXXXXX GROUP INC., AS GUARANTOR
AND THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK), AS TRUSTEE
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FIRST SUPPLEMENTAL SUBORDINATED INDENTURE, dated as of
June 1, 1997 among XXXXXX XXXXXXX FINANCE PLC, a corporation
organized under the laws of England and Wales ("MS plc" or
the "Issuer"), XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.,
a Delaware corporation (the "Successor Corporation" and
hereinafter the "Guarantor"), 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, the Issuer, Xxxxxx Xxxxxxx Group Inc. ("Xxxxxx
Xxxxxxx") and the Trustee are parties to that certain
Subordinated Indenture dated as of November 15, 1993;
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
"Guarantor," 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, each of the Issuer and the Guarantor, 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 Guarantor and
the assumption of the successor corporation of the
covenants, agreements and obligations of the Guarantor and
making any provisions as the Issuer or Guarantor may deem
necessary or desirable, subject to the conditions set forth
therein;
WHEREAS, the Guarantor desires to add to and modify
certain provisions of the Indenture to reflect a
modification of the officers of the Guarantor who are
authorized to execute certain documents in connection with
the issuance of Securities;
WHEREAS, the entry into this First 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 First
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, the Guarantor 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 1.01. Assumption of Obligations by Successor
Corporation. Pursuant to Sections 9.1 and 9.2 of the
Indenture, the Successor Corporation does hereby: (i)
expressly assume the obligations of the Guarantor under the
applicable Guarantee 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 1.02. Amendment of Section 1.1. Section 1.1 of
the Indenture is hereby amended by
(a) deleting the definition of "Guarantor Order" and
inserting in lieu thereof the following: " 'Guarantor Order'
means a written statement, request or order of the Guarantor
signed in its name by any one of the following: [ ] or any
such other person specifically designated by [any of such
officers or by] the Board of Directors to execute any such
written statement, request or order"; and
(b) inserting in the first sentence of the definition
of "Officer's Certificate" after the words "Officer's
Certificate", the words " with respect to the Issuer" and
inserting after the first sentence the following: "
'Officer's Certificate' with respect to the Guarantor means
a certificate signed by any one of
the following: [
] or any such
other person specifically designated by [any of such
officers or by] the Board of Directors to execute any
such certificate and delivered to the Trustee."
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. Further Assurances. The Guarantor 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 First Supplemental
Subordinated Indenture.
SECTION 2.02. 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 2.03. Terms Defined. All terms defined
elsewhere in the Indenture shall have the same meanings when
used herein.
SECTION 2.04. GOVERNING LAW. THE INTERNAL LAWS OF THE
STATE OF NEW YORK SHALL GOVERN THIS FIRST SUPPLEMENTAL
SUBORDINATED INDENTURE.
SECTION 2.05. Multiple Counterparts. This First
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 2.06. Responsibility of Trustee. The recitals
contained herein shall be taken as the statements of the
Guarantor, 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
First Supplemental Subordinated Indenture.
SECTION 2.07. Agency Appointments. The Guarantor 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 First Supplemental
Subordinated Indenture has been duly executed by the Issuer,
the Guarantor and the Trustee as of the day and year first
written above.
XXXXXX XXXXXXX FINANCE PLC
By:______________________________
Title:
Attest:
By: ____________________
Title:
XXXXXX XXXXXXX, XXXX XXXXXX
DISCOVER & CO.
By:______________________________
Title:
Attest:
By: ___________________
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By:______________________________
Title:
Attest:
By: ____________________
Title:
