Exhibit 10.6
EXECUTION COPY
AMENDMENT NO. 2, dated as of
March 11, 2009, to the Credit Agreement referred to below,
among DISCOVER FINANCIAL SERVICES, a Delaware corporation, DISCOVER
BANK, a Delaware banking corporation, the SUBSIDIARY BORROWERS
party from time to time thereto, the LENDERS party thereto and
JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders
(in such capacity, together with its successors in such capacity,
the “ Administrative Agent ”).
The Borrowers, the Lenders and the
Administrative Agent are parties to a Credit Agreement dated as of
June 6, 2007 (as amended by Amendment No. 1 dated as of
February 29, 2008 and as modified and supplemented and in
effect from time to time, the “ Credit Agreement
”), providing, subject to the terms and conditions thereof,
for extensions of credit to be made by or on behalf of said Lenders
to the Borrowers in an aggregate principal amount not to exceed
$2,500,000,000. The Borrowers, the Lenders and the Administrative
Agent wish to amend the Credit Agreement in certain respects and,
accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions .
Except as otherwise defined in this Amendment No. 2, terms
defined in the Credit Agreement (as amended hereby) are used herein
as defined therein.
Section 2. Amendments .
Effective as of the date hereof as provided in Section 4 of
this Amendment No. 2, the Credit Agreement is hereby amended
as follows:
2.01. References in the Credit
Agreement to “this Agreement” (and indirect references
such as “hereunder”, “hereby”,
“herein” and “hereof”) shall be deemed to
be references to the Credit Agreement as amended hereby.
2.02. Defined Terms .
Section 1.01 of the Credit Agreement is hereby amended by
adding the following new definitions:
“ Department of Education
Loan Participation Program ” means a program pursuant to
which the United States Department of Education purchases
participation interests in eligible student loans that have been
transferred to a custodian by a Company or Subsidiary.
2.03. Liens .
(a) Section 6.02 of the Credit
Agreement is hereby amended by deleting the word “and”
at the end of clause (i) thereof.
(b) Section 6.02 of the Credit
Agreement is hereby amended by deleting the existing
clause (j) and adding a new clause (j) to read in its
entirety as follows:
“(j) Liens in favor of a
custodian for the benefit of the United States Department of
Education to secure advances (or future advances) made (or to be
made) to, or participation interests purchased from, such Company
or Subsidiary in connection with a Department of Education Loan
Participation Program; and”
(c) Section 6.02 of the Credit
Agreement is hereby amended by adding a new clause (k) to read
in its entirety as follows:
“(k) other Liens securing
obligations in an aggregate amount not to exceed $100,000,000 at
any time outstanding.”
2.04. Mergers, Consolidations,
Sales of Assets, Etc. Section 6.03(a) of the Credit
Agreement is hereby amended by replacing the words “(other
than dispositions of assets pursuant to a Permitted
Securitization)” therein with the words “(other than
dispositions of assets pursuant to a Permitted Securitization or in
connection with participation in a Department of Education Loan
Participation Program)”.
2.05. Restrictive Agreements
. Section 6.07 of the Credit Agreement is hereby amended by
replacing the words “without reference to
Section 6.02(g)” therein with the words “without
reference to Section 6.02(k)”.
Section 3. Representations
and Warranties . Each Borrower hereby represents and warrants
to the Administrative Agent and the Lenders that (i) the
representations and warranties of such Borrower set forth in
Article III of the Credit Agreement are, on the date hereof,
true and complete as if made on the date hereof (and after giving
effect to this Amendment No. 2) and as if each reference in
said Article III to “this Agreement” includes reference
to this Amendment No. 2 and (ii) both immediately before
and after giving effect to the amendments under Section 2
hereof, no Default has occurred and is continuing.
Section 4. Conditions
Precedent . The amendments to the Credit Agreement set forth in
Section 2 of this Amendment No. 2 shall become effective,
as of the date hereof, upon the satisfaction of each of the
following conditions precedent:
(i) receipt by the Administrative
Agent of one or more counterparts of this Amendment No. 2 duly
executed and delivered by each of the Borrowers and the Required
Lenders; and
(ii) payment by the Companies to the
Administrative Agent of all fees and other amounts due and payable
on or prior to the date this Amendment No. 2 becomes
effective, including amounts, to the extent invoiced, for the
reimbursement or payment of all out-of-pocket expenses required to
be reimbursed by the Companies.
Section 5. Miscellaneous
. Except as herein provided, the Credit Agreement shall remain
unchanged and in full force and effect and is hereby ratified and
confirmed. This Amendment No. 2 may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same agreement and any of the parties hereto
may execute this Amendment No. 2 by signing any such
counterpart. This Amendment No. 2 shall be governed by,
and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment No. 2 to be duly executed
and delivered as of the day and year first above
written.
