THIRD SUPPLEMENTAL SENIOR INDENTURE
BETWEEN
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc. ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ merged with and
into ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co., which continued as the successor corporation
and changed its name to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co.;
WHEREAS, Section 9.1 of the Indenture requires the Successor
Corporation to expressly assume the obligations of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; (ii) agree to succeed to and be substituted for
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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."
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, a Delaware corporation and a
wholly owned subsidiary of the Issuer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇ contained in any agency agreement entered into by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, DISCOVER & CO.
By: _____________________
Title:
Attest:
By: ___________________
Title:
THE CHASE MANHATTAN
BANK, as Trustee
By: ______________________
Title:
Attest:
By: ____________________
Title: