Exhibit 9
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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
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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 1.01. 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 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 1.02. 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:[ ] 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) 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: [ ] 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."
SECTION 1.03. 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: [ ] or any such other person
specifically designated by [any of such
officers or by] the Board of Directors to execute
Securities or, if applicable, Coupons, which
Securities or Coupons may, but need not, be
attested."
SECTION 1.04. 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 2.01. 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 2.02. 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 THIRD SUPPLEMENTAL SENIOR INDENTURE.
SECTION 2.05. 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 2.06. 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 2.07. 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:
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Title:
Attest:
By:
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Assistant Secretary
THE CHASE MANHATTAN
BANK, as Trustee
By:
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Title:
Attest:
By:
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Title:
