1
EXHIBIT 10.6
AMENDMENT
AMENDMENT (this "Amendment") dated as of October 1, 1997 between MBNA
CORPORATION, a Maryland corporation (the "Company"), and THE BANK OF NEW YORK, a
New York corporation (the "Bank").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Bank are parties to a certain Credit
Agreement dated as of October 5, 1994, as amended October 5, 1994, as of October
4, 1995, as of June 28, 1996 and as of October 2, 1996 (the "Credit Agreement");
and
WHEREAS, the Company and the Bank desire to amend the Credit Agreement
in certain respects;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. All capitalized terms used herein shall have the meanings
assigned to such terms in the Credit Agreement.
2. As used in the Credit Agreement, each reference to the
Credit Agreement shall mean the Credit Agreement as amended by this Amendment
and as the same may from time to time be further amended, supplemented or
otherwise modified.
3. The definition of "Termination Date" in Section 1.01 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"'Termination Date' shall mean the earlier to occur
of:
(a) September 30, 1998 (or any later date
agreed to between the Bank and the Company as specified in
Section 2.01(b)); and
(b) the date on which the Commitment shall
terminate in accordance with the provisions of this
Agreement."
4. The Company represents and warrants to the Bank as follows:
(a) The Company has all requisite power and authority
to execute and deliver this Amendment and to incur the obligations
provided for in this Amendment and
2
in the Credit Agreement as amended by this Amendment (the "Amended
Credit Agreement"), which execution, delivery and incurrence have been
duly authorized by all necessary and proper action. Except for the
consents and approvals previously delivered to the Bank, no consent or
approval or the taking of any other action (including, without
limitation, of or by shareholders or of or by any governmental
department, commission, board, bureau, instrumentality or agency) is
required as a condition to the execution, delivery, performance,
validity or enforceability of this Amendment or the Amended Credit
Agreement.
(b) This Amendment has been duly executed and
delivered by the Company. Each of this Amendment and the Amended Credit
Agreement constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally or by equitable principles relating to
enforceability.
(c) The execution, delivery and performance by the
Company of this Amendment and of the Amended Credit Agreement do not
(i) violate any provision of the Company's Organization Documents, (ii)
violate any order, decree or judgment, or any provision of any statute,
rule or regulation, (iii) violate or conflict with, result in a breach
of or constitute (with notice or lapse of time or both) a default under
any Contractual Obligation to which the Company is a party, or (iv)
result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any property or asset of the Company.
(d) All of the representations and warranties set
forth in the Amended Credit Agreement are true and correct in all
material respects on and as of the date hereof as if made on the date
hereof.
(e) As of the date hereof, there exists no Default or
Event of Default which has occurred and is continuing.
5. Simultaneously with the execution and delivery of this
Amendment, the Company will execute and deliver to the Bank (a) a certificate of
the Secretary or an Assistant Secretary of the Company (the "Certificate") which
states that attached thereto or set forth therein is a true and correct copy of
all action taken by the Company (which action has not been modified, amended or
rescinded and is in full force and effect) to authorize the execution, delivery
and performance by the Company of this Amendment (including, without limitation,
the extension of the Termination Date effected by this Amendment) and the
performance of the Amended Credit Agreement and (b) a favorable written opinion
of John W. Scheflen, General Counsel of the Company, dated the date of this
Amendment and in the form of Annex 1 attached to this Amendment (the "Opinion").
6. The amendments of the Credit Agreement set forth in this
Amendment are limited precisely as written, and, except as expressly amended by
this Amendment, nothing contained in this Amendment shall be deemed (a) to be a
waiver, amendment, modification or
3
other change of any term, condition or provision of the Credit Agreement (or a
consent to any such waiver, amendment, modification or other change), (b) to
prejudice any right or rights which the Bank may have under the Credit
Agreement, or (c) to entitle the Company to a waiver, amendment, modification or
other change of any term, condition or provision of the Credit Agreement (or a
consent to any such waiver, amendment, modification or other change), or to a
consent, in similar or different circumstances.
7. Except as expressly amended by this Amendment, the terms
and provisions of the Credit Agreement shall remain in full force and effect.
8. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. This Amendment may be executed in two or more counterparts,
each of which shall constitute but one instrument, and shall be effective as of
October 1, 1997 when copies hereof, which, when taken together, bear the
signatures of each of the parties hereto, shall be delivered to the Bank,
together with the Certificate and the Opinion.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first written above.
MBNA CORPORATION
By: ______________________________
Name: _______________________
Title: _______________________
THE BANK OF NEW YORK
By: ______________________________
Name: _______________________
Title: _______________________
4
ANNEX 1
FORM OF OPINION OF JOHN W. SCHEFLEN
October 1, 1997
The Bank of New York
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
I am General Counsel for MBNA Corporation (the "Company") and in that
capacity have acted as counsel to the Company in connection with the Credit
Agreement (the "Credit Agreement") dated as of October 5, 1994, as heretofore
amended, between the Company and The Bank of New York (the "Bank") and the
Amendment thereto dated as of October 2, 1996 between the Bank and the Company
(the "Amendment"; the Credit Agreement as amended by the Amendment is referred
to herein as the "Amended Credit Agreement"). This opinion is rendered to the
Bank pursuant to Paragraph 5(b) of the Amendment. Capitalized terms used in this
opinion without definition have the same meanings as in the Amended Credit
Agreement.
In my capacity as such counsel, I have examined and relied upon such
records, documents, certificates, opinions and other matters as are in my
judgment necessary or appropriate to enable me to render the opinion expressed
herein. Based on the foregoing, I am of the opinion that:
1. Corporate Existence and Power. The Company and each of its
Significant Subsidiaries:
(a) Is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) Has the power and authority and all governmental licenses,
authorization, consents and approvals to own its assets, carry on its business,
execute and deliver the Amendment and execute, deliver, and perform its
obligations under the Amended Credit Agreement;
(c) Is duly qualified as a foreign corporation, licensed and
in good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification; and
(d) Is in compliance with all Requirements of Law;
5
2
except, in each case referred to in clause (c) or clause (d), to the extent that
the failure to do so would not reasonably be expected to have a Material Adverse
Effect.
2. Corporate Authorization; No Contravention. The execution and
delivery by the Company of the Amendment and the execution, delivery and
performance by the Company of the Amended Credit Agreement have been duly
authorized on behalf of the Company by all necessary corporate action, and do
not and will not:
(a) Contravene the terms of any of the Company's Organization
Documents;
(b) Conflict with or result in any breach or contravention of,
or the creation of any lien under, any document known to me evidencing any
Contractual Obligation to which the Company is a party or any order, injunction,
writ or decree of any Governmental Authority to which the Company or its
Property is subject which, in the aggregate, would be reasonably likely to
result in a Material Adverse Effect; or
(c) Violate any Requirement of Law.
3. Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or validity of or enforcement against,
the Company of the Amendment or the Amended Credit Agreement.
4. Regulated Entities. None of the Company, any Person controlling the
Company or any Subsidiary of the Company, is an "Investment Company" within the
meaning of the Investment Company Act of 1940.
I am admitted to the bar of the State of Maryland and express no
opinion as to the laws of any jurisdiction other than the laws of the State of
Maryland and the federal laws of the United States of America.
The opinion may be relied upon by the Bank and by Participants and
Assignees. A copy of this opinion may also be made available to governmental or
regulatory authorities. Without my prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
John W. Scheflen
Executive Vice President
General Counsel and Secretary
6
AMENDMENT
AMENDMENT (this "Amendment") dated as of March 9, 1998 between MBNA
CORPORATION, a Maryland corporation (the "Company"), and THE BANK OF NEW YORK, a
New York corporation (the "Bank").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Bank are parties to a certain Credit
Agreement dated as of October 5, 1994, as amended October 5, 1994, as of October
4, 1995, as of June 28, 1996, as of October 2, 1996 and as of October 1, 1997
(the "Credit Agreement"); and
WHEREAS, the Company and the Bank desire to amend the Credit Agreement
in certain respects;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. All capitalized terms used herein shall have the meanings
assigned to such terms in the Credit Agreement.
2. As used in the Credit Agreement, each reference to the
Credit Agreement shall mean the Credit Agreement as amended by this Amendment
and as the same may from time to time be further amended, supplemented or
otherwise modified.
3. Section 2.01 of the Credit Agreement is hereby amended by
deleting "Twenty Five Million Dollars ($25,000,000)" from the sixth to seventh
lines thereof and inserting in lieu thereof "Fifty Million Dollars
($50,000,000)".
4. The Company represents and warrants to the Bank as follows:
(a) The Company has all requisite power and authority
to execute and deliver this Amendment and to incur the obligations
provided for in this Amendment and in the Credit Agreement as amended
by this Amendment (the "Amended Credit Agreement"), which execution,
delivery and incurrence have been duly authorized by all necessary and
proper action. Except for the consents and approvals previously
delivered to the Bank, no consent or approval or the taking of any
other action (including, without limitation, of or by shareholders or
of or by any governmental department, commission, board, bureau,
instrumentality or agency) is required as a condition to the execution,
delivery, performance, validity or enforceability of this Amendment or
the Amended Credit Agreement.
7
(b) This Amendment has been duly executed and
delivered by the Company. Each of this Amendment and the Amended Credit
Agreement constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally or by equitable principles relating to
enforceability.
(c) The execution, delivery and performance by the
Company of this Amendment and of the Amended Credit Agreement do not
(i) violate any provision of the Company's Organization Documents, (ii)
violate any order, decree or judgment, or any provision of any statute,
rule or regulation, (iii) violate or conflict with, result in a breach
of or constitute (with notice or lapse of time or both) a default under
any Contractual Obligation to which the Company is a party, or (iv)
result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any property or asset of the Company.
(d) All of the representations and warranties set
forth in the Amended Credit Agreement are true and correct in all
material respects on and as of the date hereof as if made on the date
hereof.
(e) As of the date hereof, there exists no Default or
Event of Default which has occurred and is continuing.
5. Simultaneously with the execution and delivery of this
Amendment, the Company will execute and deliver to the Bank (a) a certificate of
the Secretary or an Assistant Secretary of the Company (the "Certificate") which
states that attached thereto or set forth therein is a true and correct copy of
all action taken by the Company (which action has not been modified, amended or
rescinded and is in full force and effect) to authorize the execution, delivery
and performance by the Company of this Amendment (including, without limitation,
the extension of the Termination Date effected by this Amendment) and the
performance of the Amended Credit Agreement and (b) a favorable written opinion
of John W. Scheflen, General Counsel of the Company, dated the date of this
Amendment and in the form of Annex 1 attached to this Amendment (the "Opinion").
6. The amendment of the Credit Agreement set forth in this
Amendment is limited precisely as written, and, except as expressly amended by
this Amendment, nothing contained in this Amendment shall be deemed (a) to be a
waiver, amendment, modification or other change of any term, condition or
provision of the Credit Agreement (or a consent to any such waiver, amendment,
modification or other change), (b) to prejudice any right or rights which the
Bank may have under the Credit Agreement, or (c) to entitle the Company to a
waiver, amendment, modification or other change of any term, condition or
provision of the Credit Agreement (or a consent to any such waiver, amendment,
modification or other change), or to a consent, in similar or different
circumstances.
7. Except as expressly amended by this Amendment, the terms
and provisions of the Credit Agreement shall remain in full force and effect.
8
8. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. This Amendment may be executed in two or more counterparts,
each of which shall constitute but one instrument, and shall be effective as of
March 9, 1998 when copies hereof, which, when taken together, bear the
signatures of each of the parties hereto, shall be delivered to the Bank,
together with the Certificate and the Opinion.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first written above.
MBNA CORPORATION
By: ______________________________
Name: _______________________
Title: _______________________
THE BANK OF NEW YORK
By: ______________________________
Name: _______________________
Title: _______________________
9
ANNEX 1
FORM OF OPINION OF JOHN W. SCHEFLEN
March 9, 1998
The Bank of New York
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
I am General Counsel for MBNA Corporation (the "Company") and in that
capacity have acted as counsel to the Company in connection with the Credit
Agreement (the "Credit Agreement") dated as of October 5, 1994, as heretofore
amended, between the Company and The Bank of New York (the "Bank") and the
Amendment thereto dated as of March 9, 1998 between the Bank and the Company
(the "Amendment"; the Credit Agreement as amended by the Amendment is referred
to herein as the "Amended Credit Agreement"). This opinion is rendered to the
Bank pursuant to Paragraph 5(b) of the Amendment. Capitalized terms used in this
opinion without definition have the same meanings as in the Amended Credit
Agreement.
In my capacity as such counsel, I have examined and relied upon such
records, documents, certificates, opinions and other matters as are in my
judgment necessary or appropriate to enable me to render the opinion expressed
herein. Based on the foregoing, I am of the opinion that:
1. Corporate Existence and Power. The Company and each of its
Significant Subsidiaries:
(a) Is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) Has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business,
execute and deliver the Amendment and execute, deliver, and perform its
obligations under the Amended Credit Agreement;
(c) Is duly qualified as a foreign corporation, licensed and
in good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification; and
(d) Is in compliance with all Requirements of Law;
10
2
except, in each case referred to in clause (c) or clause (d), to the extent that
the failure to do so would not reasonably be expected to have a Material Adverse
Effect.
2. Corporate Authorization; No Contravention. The execution and
delivery by the Company of the Amendment and the execution, delivery and
performance by the Company of the Amended Credit Agreement have been duly
authorized on behalf of the Company by all necessary corporate action, and do
not and will not:
(a) Contravene the terms of any of the Company's Organization
Documents;
(b) Conflict with or result in any breach or contravention of,
or the creation of any lien under, any document known to me evidencing any
Contractual Obligation to which the Company is a party or any order, injunction,
writ or decree of any Governmental Authority to which the Company or its
Property is subject which, in the aggregate, would be reasonably likely to
result in a Material Adverse Effect; or
(c) Violate any Requirement of Law.
3. Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or validity of or enforcement against,
the Company of the Amendment or the Amended Credit Agreement.
4. Regulated Entities. None of the Company, any Person controlling the
Company or any Subsidiary of the Company, is an "Investment Company" within the
meaning of the Investment Company Act of 1940.
I am admitted to the bar of the State of Maryland and express no
opinion as to the laws of any jurisdiction other than the laws of the State of
Maryland and the federal laws of the United States of America.
The opinion may be relied upon by the Bank and by Participants and
Assignees. A copy of this opinion may also be made available to governmental or
regulatory authorities. Without my prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
John W. Scheflen
Executive Vice President
General Counsel and Secretary
11
AMENDMENT
AMENDMENT (this "Amendment") dated as of September 29, 1999 between
MBNA CORPORATION, a Maryland corporation (the "Company"), and THE BANK OF NEW
YORK, a New York corporation (the "Bank").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Bank are parties to a certain Credit
Agreement dated as of October 5, 1994, as amended October 5, 1994, as of October
4, 1995, as of June 28, 1996, as of October 2, 1996, as of October 1, 1997, as
of March 9, 1998 and as of September 30, 1998 (the "Credit Agreement"); and
WHEREAS, the Company and the Bank desire to amend the Credit Agreement
in certain respects;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. All capitalized terms used herein shall have the meanings
assigned to such terms in the Credit Agreement.
2. As used in the Credit Agreement, each reference to the
Credit Agreement shall mean the Credit Agreement as amended by this Amendment
and as the same may from time to time be further amended, supplemented or
otherwise modified.
3. The definition of "Applicable Margin" in Section 1.01 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"'Applicable Margin' means, for CD Rate Loans, 0.500%
and, for Offshore Rate Loans, 0.375%."
4. Section 1.01 of the Credit Agreement is hereby amended by
inserting the following new definition immediately after the definition of
"Significant Subsidiary" in said Section 1.01:
"'Subject Period' means the period from December 15,
1999 through and including January 17, 2000."
5. The definition of "Termination Date" in Section 1.01 of the
Credit Agreement is hereby amended in its entirety to read as follows:
12
"'Termination Date' means the earlier to occur of:
(a) September 27, 2000 (or any later date
agreed to between the Bank and the Company as specified in
Section 2.01(b)); and
(b) the date on which the Commitment shall
terminate in accordance with the provisions of this
Agreement."
6. Section 1.01 of the Credit Agreement is hereby amended by
inserting the following new definitions immediately after the definition of
"Wholly-Owned Subsidiary" in said Section 1.01:
"'Year 2000 Issue' means the failure of computer
software, hardware and firmware systems and equipment
containing embedded computer chips to properly receive,
transmit, process, manipulate, store, retrieve, re-transmit or
in any other way utilize data and information due to the
occurrence of the year 2000 or the inclusion of dates on or
after January 1, 2000."
"'Year 2000 Problem' means any significant risk that
computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will
not, in the case of dates or time periods occurring after
December 31, 1999, function as effectively as in the case of
dates or time periods occurring prior to January 1, 2000.
7. Clause (C) of subsection 2.03(a) of the Credit Agreement is
hereby amended by inserting "subject to subsection 2.03(a)," immediately before
"whether" at the start of said clause (C).
8. Clause (D) of subsection 2.03(a) of the Credit Agreement is
hereby amended by inserting "if applicable," immediately before "the duration"
at the start of said clause (D).
9. Subsection 2.03(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(b) Notwithstanding anything in this Agreement to
the contrary, unless the Bank shall otherwise agree, (i)
during the existence of a Default or Event of Default, the
Company may not elect to have a Loan be made as, or converted
into or continued as, an Offshore Rate Loan or a CD Rate Loan,
and (ii) during the Subject Period, the Company may not elect
to have a Loan be made as, or converted into or continued as,
an Offshore Rate Loan or a CD Rate Loan."
13
10. Subsection 2.04(a) of the Credit Agreement is hereby
amended by inserting the following immediately before the period at the end of
said subsection 2.04(a):
"; and provided further that any conversion of Loans into and
continuation of Loans as Offshore Rate Loans and CD Rate Loans
shall be subject to subsection 2.03(b)"
11. Subsection 2.08(a) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(a) Subject to subsection 2.03(b), each Loan shall
bear interest on the outstanding principal amount thereof from
the date when made to the date it becomes due at a rate per
annum equal to the CD Rate for the applicable Interest Period
plus the Applicable Margin, the Offshore Rate for the
applicable Interest Period plus the Applicable Margin or the
Base Rate, as the case may be."
12. The first sentence of subsection 2.09(b) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"The Company shall pay to the Bank a facility fee at a rate
per annum of 0.125%, payable quarterly in arrears on the last
day of each calendar quarter based upon the Commitment less
the aggregate principal amount of Loans outstanding as of the
first day of such quarter."
13. Article V of the Credit Agreement is hereby amended by
inserting the following new Section 5.13 immediately after Section 5.12 of the
Credit Agreement:
"5.13 Year 2000.
"(a) The Company has reviewed the effect of
the Year 2000 Issue on the computer software, hardware and
firmware systems and equipment containing embedded microchips
owned or operated by or for the Company or any of its
Subsidiaries or used or relied upon in the conduct of the
businesses of the Company and its Subsidiaries (including
systems and equipment supplied by others or with which such
computer systems of the Company or any of its Subsidiaries (or
any of them) interface). The costs to the Company and its
Subsidiaries of any reprogramming required as a result of the
Year 2000 Issue to permit the proper functioning of such
systems and equipment and the proper processing of data, and
the testing of such reprogramming, and of the reasonably
foreseeable consequences of the Year 2000 Issue to the Company
and its Subsidiaries (including reprogramming errors and the
failure of systems or equipment supplied by others) are not
reasonably expected to have a Material Adverse Effect.
14
"(b) The Company is currently meeting
scheduled events with regard to its formulated plan to
remediate any problems or issues arising from the Year 2000
Problem."
14. The Company represents and warrants to the Bank as
follows:
(a) The Company has all requisite power and authority
to execute and deliver this Amendment and to incur the obligations
provided for in this Amendment and in the Credit Agreement as amended
by this Amendment (the "Amended Credit Agreement"), which execution,
delivery and incurrence have been duly authorized by all necessary and
proper action. Except for the consents and approvals previously
delivered to the Bank, no consent or approval or the taking of any
other action (including, without limitation, of or by shareholders or
of or by any governmental department, commission, board, bureau,
instrumentality or agency) is required as a condition to the execution,
delivery, performance, validity or enforceability of this Amendment or
the Amended Credit Agreement.
(b) This Amendment has been duly executed and
delivered by the Company. Each of this Amendment and the Amended Credit
Agreement constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally or by equitable principles relating to
enforceability.
(c) The execution, delivery and performance by the
Company of this Amendment and of the Amended Credit Agreement do not
(i) violate any provision of the Company's Organization Documents, (ii)
violate any order, decree or judgment, or any provision of any statute,
rule or regulation, (iii) violate or conflict with, result in a breach
of or constitute (with notice or lapse of time or both) a default under
any Contractual Obligation to which the Company is a party, or (iv)
result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any property or asset of the Company.
(d) All of the representations and warranties set
forth in the Amended Credit Agreement are true and correct in all
material respects on and as of the date hereof as if made on the date
hereof.
(e) As of the date hereof, there exists no Default or
Event of Default which has occurred and is continuing.
15. Simultaneously with the execution and delivery of this
Amendment, the Company will execute and deliver to the Bank (a) a certificate of
the Secretary or an Assistant Secretary of the Company (the "Certificate") which
states that attached thereto or set forth therein is a true and correct copy of
all action taken by the Company (which action has not been modified, amended or
rescinded and is in full force and effect) to authorize the execution, delivery
and performance by the Company of this Amendment (including, without limitation,
the
15
extension of the Termination Date effected by this Amendment) and the
performance of the Amended Credit Agreement and (b) a favorable written opinion
of John W. Scheflen, General Counsel of the Company, dated the date of this
Amendment and in the form of Annex 1 attached to this Amendment (the "Opinion").
16. The amendments of the Credit Agreement set forth in this
Amendment are limited precisely as written, and, except as expressly amended by
this Amendment, nothing contained in this Amendment shall be deemed (a) to be a
waiver, amendment, modification or other change of any term, condition or
provision of the Credit Agreement (or a consent to any such waiver, amendment,
modification or other change), (b) to prejudice any right or rights which the
Bank may have under the Credit Agreement, or (c) to entitle the Company to a
waiver, amendment, modification or other change of any term, condition or
provision of the Credit Agreement (or a consent to any such waiver, amendment,
modification or other change), or to a consent, in similar or different
circumstances.
17. Except as expressly amended by this Amendment, the terms
and provisions of the Credit Agreement shall remain in full force and effect.
18. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19. This Amendment may be executed in two or more
counterparts, each of which shall constitute but one instrument, and shall be
effective as of September 29, 1999 when copies hereof, which, when taken
together, bear the signatures of each of the parties hereto, shall be delivered
to the Bank, together with the Certificate and the Opinion.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first written above.
MBNA CORPORATION
By: ______________________________
Name: _______________________
Title: _______________________
THE BANK OF NEW YORK
By: ______________________________
Name: _______________________
Title: _______________________
16
ANNEX 1
FORM OF OPINION OF JOHN W. SCHEFLEN
September 29, 1999
The Bank of New York
One Wall Street
New York, New York 10286
Ladies and Gentlemen:
I am General Counsel for MBNA Corporation (the "Company") and in that
capacity have acted as counsel to the Company in connection with the Credit
Agreement (the "Credit Agreement") dated as of October 5, 1994, as heretofore
amended, between the Company and The Bank of New York (the "Bank") and the
Amendment thereto dated as of September 29, 1999 between the Bank and the
Company (the "Amendment"; the Credit Agreement as amended by the Amendment is
referred to herein as the "Amended Credit Agreement"). This opinion is rendered
to the Bank pursuant to Paragraph 15(b) of the Amendment. Capitalized terms used
in this opinion without definition have the same meanings as in the Amended
Credit Agreement.
In my capacity as such counsel, I have examined and relied upon such
records, documents, certificates, opinions and other matters as are in my
judgment necessary or appropriate to enable me to render the opinion expressed
herein. Based on the foregoing, I am of the opinion that:
1. Corporate Existence and Power. The Company and each of its
Significant Subsidiaries:
(a) Is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) Has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business,
execute and deliver the Amendment and execute, deliver, and perform its
obligations under the Amended Credit Agreement;
(c) Is duly qualified as a foreign corporation, licensed and
in good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification; and
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(d) Is in compliance with all Requirements of Law; except, in
each case referred to in clause (c) or clause (d), to the extent that the
failure to do so would not reasonably be expected to have a Material Adverse
Effect.
2. Corporate Authorization; No Contravention. The execution and
delivery by the Company of the Amendment and the execution, delivery and
performance by the Company of the Amended Credit Agreement have been duly
authorized on behalf of the Company by all necessary corporate action, and do
not and will not:
(a) Contravene the terms of any of the Company's Organization
Documents;
(b) Conflict with or result in any breach or contravention of,
or the creation of any lien under, any document known to me evidencing any
Contractual Obligation to which the Company is a party or any order, injunction,
writ or decree of any Governmental Authority to which the Company or its
Property is subject which, in the aggregate, would be reasonably likely to
result in a Material Adverse Effect; or
(c) Violate any Requirement of Law.
3. Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or validity of or enforcement against,
the Company of the Amendment or the Amended Credit Agreement.
4. Regulated Entities. None of the Company, any Person controlling the
Company or any Subsidiary of the Company, is an "Investment Company" within the
meaning of the Investment Company Act of 1940.
I am admitted to the bar of the State of Maryland and express no
opinion as to the laws of any jurisdiction other than the laws of the State of
Maryland and the federal laws of the United States of America.
The opinion may be relied upon by the Bank and by Participants and
Assignees. A copy of this opinion may also be made available to governmental or
regulatory authorities. Without my prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
John W. Scheflen
Executive Vice President
General Counsel and Secretary