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AMENDMENT
AMENDMENT (this "Amendment") dated as of October 2, 1996 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 and as of June 28, 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) October 1, 1997 (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. Section 2.01(b) of the Credit Agreement is hereby amended
by changing "initial" where it appears on the second, third and fifth lines
thereof to "then".
5. The Company represents and warrants to the Bank as follows:
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(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.
6. 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
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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 Xxxx X. Xxxxxxxx, General Counsel of the
Company, dated the date of this Amendment and in the form of Annex 1 attached to
this Amendment (the "Opinion").
7. 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.
8. Except as expressly amended by this Amendment, the terms
and provisions of the Credit Agreement shall remain in full force and effect.
9. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. 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 2, 1996 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: __________________
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ANNEX 1
FORM OF OPINION OF XXXX X. XXXXXXXX
October 2, 0000
Xxx Xxxx xx Xxx Xxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 6(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;
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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,
Xxxx X. Xxxxxxxx
Executive Vice President
General Counsel and Secretary
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AMENDMENT
AMENDMENT (this "Amendment") dated as of June 28, 1996 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 and as of
October 5, 1995 (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 5.05 of the Credit Agreement is hereby amended by
inserting the following in lieu of the words "Except as specifically disclosed
in Schedule 5.05":
"Except as disclosed in the Company's most recent Annual
Report on Form 10-K or in any subsequent report of the Company
on Form 10-Q or 8-K dated prior to the date of this Agreement
or any subsequent amendment hereto"
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
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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. 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.
6. Except as expressly amended by this Amendment, the terms
and provisions of the Credit Agreement shall remain in full force and effect.
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7. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8. This Amendment may be executed in two or more counterparts,
each of which shall constitute but one instrument, and shall be effective as of
June __, 1996 when copies hereof, which, when taken together, bear the
signatures of each of the parties hereto, shall be delivered to the Bank.
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: __________________
