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EXHIBIT 10.6
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
March 27, 1998 is entered into by and between MBNA Corporation, a Maryland
corporation (the "Company") and Bank of America National Trust and Savings
Association (the "Bank").
RECITALS
A. The Company and the Bank are parties to a Credit Agreement dated as
of April 13, 1994 and amended by a First Amendment to Credit Agreement dated as
of April 7, 1995, a Second Amendment to Credit Agreement dated as of April 10,
1996, and a Third Amendment to Credit Agreement dated as of February 27, 1997,
in each case between the Company and the Bank (as in effect as of the opening
of business on the date of this Amendment, the "Credit Agreement") pursuant to
which the Bank has extended a credit facility to the Company.
B. The Company and the Bank, prior to March 2, 1998, agreed to certain
amendments of the Credit Agreement.
C. This Amendment evidences such prior agreement to amend the Credit
Agreement as set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement. From and after the Effective Date of
this Amendment:
(a) Section 1.01 of the Credit Agreement is amended by amending
the definition of "Termination Date" in its entirety to provide:
"TERMINATION DATE" MEANS THE EARLIER TO OCCUR OF
(a) MARCH 1, 1999 (OR THE 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.
(b) Section 2.09(b) of the Credit Agreement is amended by deleting
"0.1000%" in the second line of the subsection and replacing it with "0.1250%".
(c) The first seven lines of Section 5.05 of the Credit Agreement
is amended to provide as follows:
5.05 LITIGATION. EXCEPT AS DISCLOSED WITHIN THE COMPANY'S MOST
RECENT ANNUAL REPORT ON FORM 10K, OR IN ANY SUBSEQUENT REPORTS OF
THE COMPANY ON FORM 10-Q OR 8-K, DATED PRIOR TO THE DATE OF THIS
AGREEMENT OR ANY SUBSEQUENT AMENDMENTS HERETO, TO THE BEST
KNOWLEDGE OF THE COMPANY THERE ARE NO ACTIONS, SUITS, PROCEEDINGS,
CLAIMS OR DISPUTES PENDING, OR THREATENED OR CONTEMPLATED, AT LAW,
IN EQUITY, IN ARBITRATION OR BEFORE ANY
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GOVERNMENTAL AUTHORITY, AGAINST THE COMPANY, OR ITS SUBSIDIARIES OR
ANY OF THEIR RESPECTIVE PROPERTIES WHICH:
3. Representations and Warranties. The Company hereby represents and
warrants to the Bank as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms, without
defense, counterclaim or offset.
(c) After giving effect to this Amendment all representations and
warranties of the Company contained in the Credit Agreement are true and
correct in all material respects.
(d) The Company is entering into this Amendment on the basis of
its own investigation and for its own reasons, without reliance upon the Bank
or any other Person.
4. Effective Date. This Amendment will become effective as of March 2,
1998 (the "Effective Date"), provided that on or before March 27, 1998 the Bank
has received from the Company a duly executed original (or, if elected by the
Bank, an executed facsimile copy) of this Amendment.
5. Reservation of Rights. The Company acknowledges and agrees that the
execution and delivery by the Bank of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Bank to forbear or execute
similar amendments under the same or similar circumstances in the future.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment
shall be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit
of the parties hereto and thereto and their respective successors and assigns.
No third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Bank of a
facsimile transmitted document purportedly bearing the signature of the Company
shall bind
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the Company with the same force and effect as the delivery of a hard copy
original. Any failure by the Bank to receive the hard copy executed original
of such document shall not diminish the binding effect of receipt of the
facsimile transmitted executed original of such document which hard copy page
was not received by the Bank.
(e) This Amendment may not be amended except in accordance with
the provisions of Section 9.01(a) of the Credit Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
MBNA CORPORATION BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: By:
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Name: Vernon H.C. Wright Name: Kurt A. Cardoza
Title: Executive Vice President Title: Director
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FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
March 1, 1999 (the "Effective Date"), is entered into by and between MBNA
Corporation, a Maryland corporation (the "Company") and Bank of America
National Trust and Savings Association (the "Bank").
RECITALS
A. The Company and the Bank are parties to a Credit Agreement dated as
of April 13, 1994 and amended by a First Amendment to Credit Agreement dated as
of April 7, 1995, a Second Amendment to Credit Agreement dated as of April 10,
1996, a Third Amendment to Credit Agreement dated as of February 27, 1997, and
a Fourth Amendment to Credit Agreement dated as of March 27, 1998, in each case
between the Company and the Bank (as in effect as of the opening of business on
the date of this Amendment, the "Credit Agreement") pursuant to which the Bank
has extended a credit facility to the Company.
B. The Company and the Bank have agreed to certain amendments to the
Credit Agreement.
C. This Amendment evidences such agreement to amend the Credit
Agreement as set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement. From and after the Effective Date
of this Amendment:
(a) Section 1.01 of the Credit Agreement is amended by amending
the definition of "Termination Date" to read in its entirety as follows:
"'Termination Date' means the earlier to occur of
(a) February 29, 2000 (or the 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."
(b) Section 5.10(a) of the Credit Agreement is amended by deleting
"December 31, 1993" therefrom and replacing it with "December 31, 1997".
(c) A new Section 5.12, reading in its entirety as follows, is
added to the Credit Agreement:
"5.12 Year 2000 Preparedness. The Company and its Subsidiaries
have developed and budgeted for a comprehensive program to address
on a timely basis the 'Year 2000 problem' (that is, the inability
of computers, as well as embedded microchips in non-computing
devices, to perform properly date-sensitive functions with respect
to certain dates prior to and after December 31, 1999). The
Company and its Subsidiaries have
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implemented that program substantially in accordance with its
timetable and budget and reasonably anticipate that the Year 2000
problem, including costs of remediation, testing and contingency
plans, will not have a Material Adverse Effect."
(d) Section 6.01 of the Credit Agreement is amended to read in its
entirety as follows:
"6.01 Financial Statements. The Company shall deliver to the Bank:
(a) upon the request of the Bank (which the Bank shall not
make unless such Annual Report is not generally publicly available
by electronic means) and as soon as available, but not later than
120 days after the end of each fiscal year, a copy of the Annual
Report on Form 10-K of the Company for such fiscal year;
(b) upon the request of the Bank (which the Bank shall not
make unless such Quarterly Report is not generally publicly
available by electronic means) and as soon as available, but not
later than 60 days after the end of each of the first three fiscal
quarters of each year, a copy of the Quarterly Report on Form 10-Q
of the Company for such fiscal quarter;
(c) as soon as available, but not later than 60 days after
the end of each of the first three fiscal quarters of each year,
and 120 days after the end of each fiscal year:
(i) a copy of the Parent Company Only Financial
Statements on Form FR Y-9LP of the Company for the fiscal
quarter then ended; and
(ii) a copy of the Consolidated Financial Statements
on Form FR Y-9C of the Company for the fiscal year then ended;
in such case certified by an appropriate Responsible Officer as
being the complete and correct copies of the statements on such
forms filed by the Company with the FRB (in the case of subsection
(c) of this Section 6.01)."
3. Representations and Warranties. The Company hereby represents and
warrants to the Bank as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its terms, without defense,
counterclaim or offset.
(c) After giving effect to this Amendment, all representations and
warranties of the Company contained in the Credit Agreement are true and
correct in all material respects.
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(d) The Company is entering into this Amendment on the basis of
its own investigation and for its own reasons, without reliance upon the Bank
or any other Person.
4. Effectiveness. This Amendment will become effective when the Bank
has received from the Company a duly executed original (or, if elected by the
Bank, an executed facsimile copy) of this Amendment together with such
resolutions and certifications of incumbency as the Bank may reasonably
request.
5. Reservation of Rights. The Company acknowledges and agrees that
the execution and delivery by the Bank of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Bank to forbear or execute
similar amendments under the same or similar circumstances in the future.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment
shall be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. No third
party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Bank of a
facsimile transmitted document purportedly bearing the signature of the Company
shall bind the Company with the same force and effect as the delivery of a hard
copy original. Any failure by the Bank to receive the hard copy executed
original of such document shall not diminish the binding effect of receipt of
the facsimile transmitted executed original of such document.
(e) This Amendment may not be amended except in accordance with
the provisions of Section 9.01(a) of the Credit Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
MBNA CORPORATION BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: By:
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Name: Name:
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Title: Title:
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