EXHIBIT 4.1
SECOND AMENDMENT
TO THE
MBNA MASTER CREDIT CARD TRUST
POOLING AND SERVICING AGREEMENT
AND AMENDMENT TO THE SERIES SUPPLEMENTS
THIS SECOND AMENDMENT TO THE MBNA MASTER CREDIT CARD TRUST POOLING
AND SERVICING AGREEMENT AND AMENDMENT TO THE SERIES SUPPLEMENTS, dated as of
June 2, 1998 (the "Second Amendment") is by and between MBNA AMERICA BANK,
NATIONAL ASSOCIATION, as Seller and Servicer, and BANKERS TRUST COMPANY, as
Trustee.
WHEREAS the Seller and Servicer and the Trustee have executed that
certain Pooling and Servicing Agreement, dated as of September 25, 1991 (the
"Initial Pooling and Servicing Agreement"), as amended by the First Amendment
to the Pooling and Servicing Agreement, dated as of June 1, 1997 (the "First
Amendment," and collectively with the Initial Pooling and Servicing Agreement,
the "Pooling and Servicing Agreement"), and have executed those certain Series
Supplements to the Pooling and Servicing Agreement (including the Series 1992-
3 Supplement dated as of November 24, 1992, the Series 1993-1 Supplement dated
as of February 25, 1993, the Series 1993-3 Supplement dated as of August 24,
1993, the Series 1993-4 Supplement dated as of December 7, 1993, the Series
1994-1 Supplement dated as of February 25, 1994 and the Series 1994-2
Supplement dated as of May 26, 1994, each as amended from time to time,
collectively referred to herein as the "Series Supplements");
WHEREAS the Seller and Servicer and the Trustee wish to amend the
Pooling and Servicing Agreement as provided herein;
NOW THEREFORE, in consideration of the promises and the agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Amendment of Section 1.01 and Section 2 of the Series
Supplements.
(a) The definition of "Exchangeable Seller Certificate" in
Section 1.01 of the Pooling and Servicing Agreement shall be deleted in its
entirety and inserted in its place shall be the following:
"Exchangeable Seller Certificate" shall mean, if the Seller
elects to evidence its interest in the Seller Interest in certificated
form pursuant to Section 6.01, a certificate executed and delivered by
the Seller and authenticated by the Trustee substantially in the form of
Exhibit A; provided, that at any time there shall be only one
Exchangeable Seller Certificate; provided further, that in any
Supplement, "Exchangeable Seller Certificate" shall mean either a
certificate executed and delivered by the Seller and authenticated by
the Trustee substantially in the form of Exhibit A or the uncertificated
interest in the Seller Interest.
(b) The definition of "Certificateholder" or "Holder" in Section
1.01 of the Pooling and Servicing Agreement shall be deleted in its entirety
and inserted in its place shall be the following:
"Certificateholder" or "Holder" shall mean the Person in
whose name a Certificate is registered in the Certificate Register; if
applicable, the holder of any Bearer Certificate or Coupon, as the case
may be; and, if used with respect to the Seller Interest, a Person in
whose name the Exchangeable Seller Certificate is registered in the
Certificate Register or a Person in whose name ownership of the
uncertificated interest in the Seller Interest is recorded in books and
records of the Trustee.
(c) The definition of "Principal Terms" in Section 1.01 of the
Pooling and Servicing Agreement shall be deleted in its entirety and inserted
in its place shall be the following:
"Principal Terms" shall have the meaning, with respect to
any Series issued pursuant to a New Issuance, specified in subsection
6.09(c).
(d) The definition of "Permitted Investments" in Section 1.01 of
the Pooling and Servicing Agreement shall be deleted in its entirety and
inserted in its place shall be the following:
"Permitted Investments" shall mean, unless otherwise
provided in the Supplement with respect to any Series (a) instruments,
investment property or other property consisting of (i) obligations of
or fully guaranteed by the United States of America; (ii) time deposits
or certificates of deposit of any depositary institution or trust
company incorporated under the laws of the United States of America or
any state thereof (or domestic branches of foreign depository
institutions or trust companies) and subject to supervision and
examination by federal or state banking or depositary institution
authorities; provided, however, that at the time of the Trust's
investment or contractual commitment to invest therein, the certificates
of deposit or short-term deposits of such depositary institution or
trust company shall have a credit rating from Moody's and Standard &
Poor's of P-1 and A-1+, respectively; (iii) commercial paper having, at
the time of the Trust's investment or contractual commitment to invest
therein, a rating from Moody's and Standard & Poor's of P-1 and A-1+,
respectively; (iv) bankers' acceptances issued by any depository
institution or trust company described in clause (a)(ii) above; and (v)
investments in money market funds rated AAA-m or AAA-mg by Standard &
Poor's and Aaa by Moody's or otherwise approved in writing by each
Rating Agency; (b) demand deposits in the name of the Trust or the
Trustee in any depositary institution or trust company referred to in
clause (a)(ii) above; (c) uncertificated securities that are registered
in the name of the Trustee by the issuer thereof and identified by the
Trustee as held for the benefit of the Certificateholders, and
consisting of shares of an open end diversified investment company which
is registered under the Investment Company Act and which (i) invests its
assets exclusively in obligations of or guaranteed by the United States
of America or any instrumentality or agency thereof having in each
instance a final maturity date of less than one year from their date of
purchase or other Permitted Investments, (ii) seeks to maintain a
constant net asset value per share, (iii) has aggregate net assets of
not less than $100,000,000 on the date of purchase of such shares and
(iv) which each Rating Agency designates in writing will not result in a
withdrawal or downgrading of its then current rating of any Series rated
by it; and (d) any other investment if each Rating Agency confirms in
writing that such investment will not adversely affect its then current
rating of the Investor Certificates.
(e) Each of the definitions of "Holder of the Exchangeable
Seller Certificate," "New Issuance," "New Issuance Date" and "New Issuance
Notice" shall be added to Section 1.01 of the Pooling and Servicing Agreement
and they shall read as follows:
"Holder of the Exchangeable Seller Certificate" or "holder
of the Exchangeable Seller Certificate" shall mean the Holder of the
Exchangeable Seller Certificate or the Holder of any uncertificated
interest in the Seller Interest.
"New Issuance" shall have the meaning specified in
subsection 6.09(b).
"New Issuance Date" shall have the meaning specified in
subsection 6.09(b).
"New Issuance Notice" shall have the meaning specified in
subsection 6.09(b).
(f) Each of the definitions of "Exchange," "Exchange Date,"
"Exchange Notice," "Investor Exchange" and "Seller Exchange" is hereby deleted
in its entirety from Section 1.01 of the Pooling and Servicing Agreement.
(g) The definition of "Cash Collateral Account Investments" in
Section 2 of the Series Supplements is hereby amended by deleting, in each
case where such phrase appears, the phrase "book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form" in the first sentence thereof in its entirety and, in each such case,
inserting in its place "instruments, investment property or other property
consisting of".
SECTION 2. Amendment of Section 2.01. Section 2.01 of the
Pooling and Servicing Agreement is hereby amended by deleting the last
paragraph thereof in its entirety and inserting in its place the following:
Pursuant to the written request of the Seller, the Trustee
shall cause Certificates in authorized denominations evidencing
interests in the Trust to be duly authenticated and delivered to or upon
the order of the Seller pursuant to Section 6.02.
SECTION 3. Amendment of Section 2.07.
(a) Subsection 2.07(b)(iv) of the Pooling and Servicing
Agreement is hereby amended by deleting such subsection in its entirety and by
inserting in its place the following:
(iv) [Reserved]
(b) Subsection 2.07(b)(vi) of the Pooling and Servicing
Agreement is hereby amended by deleting such subsection in its entirety and
inserting in its place the following:
(vi) on any Removal Notice Date, the amount of the Principal
Receivables of the Removed Accounts to be reassigned to the Seller on
the related Removal Date shall not equal or exceed 5% of the aggregate
amount of the Principal Receivables on such Removal Date; provided, that
if any Series has been paid in full, the Principal Receivables in such
Removed Accounts shall not equal or exceed the sum of (A) 5% of the
aggregate amount of the Principal Receivables, after giving effect to
the removal of accounts pursuant to clause (B) below, on such Removal
Date plus (B) the Initial Investor Interest of such Series that has been
paid in full; and
SECTION 4. Amendment of Section 3.06. Section 3.06 is hereby
amended by deleting such section in its entirety and inserting in its place
the following:
(a) On or before August 31 of each calendar year, beginning
with August 31, 1998, the Servicer, on behalf of the Trust, shall cause
a firm of nationally recognized independent certified public accountants
(who may also render other services to the Servicer or the Seller) to
furnish, as provided in Section 13.05, a report, based upon established
criteria that meets the standards applicable to accountants' reports
intended for general distribution, to the Trustee, any Enhancement
Provider and each Rating Agency, attesting to the fairness of the
assertion of the Servicer's management that its internal controls over
the functions performed as Servicer of the Trust are effective, in all
material respects, in providing reasonable assurance that Trust assets
are safeguarded against loss from unauthorized use or disposition, on
the date of such report, and a report attesting to the fairness of the
assertion of the Servicer's management that such servicing was conducted
in conformity with the sections of this Agreement during the period
covered by such report (which shall be the period from July 1 of the
preceding calendar year to and including June 30 of such calendar year),
except for such exceptions or errors as such firm shall believe to be
immaterial and such other exceptions as shall be set forth in such
report. Unless otherwise provided with respect to any Series in the
related Supplement, a copy of such report may be obtained by any
Investor Certificateholder by a request in writing to the Trustee
addressed to the Corporate Trust Office.
(b) On or before August 31 of each calendar year, beginning with
August 31, 1998, the Servicer shall cause a firm of nationally
recognized independent certified public accountants (who may also render
other services to the Servicer or the Seller) to furnish as provided in
Section 13.05 a report, prepared in accordance with the standards
established by the American Institute of Certified Public Accountants,
to the Trustee and each Rating Agency, to the effect that they have
compared the mathematical calculations of certain amounts set forth in
the monthly certificates forwarded by the Servicer pursuant to Section
3.04(b) during the period covered by such report (which shall be the
period from July 1 of the preceding calendar year to and including June
30 of such calendar year) with the Servicer's computer reports which
were the source of such amounts and that, on the basis of such
comparison, such firm is of the opinion that such amounts are in
agreement, except for such exceptions as shall be set forth in such
report. A copy of such report may be obtained from the Trustee by any
Investor Certificateholder by a request in writing to the Trustee
addressed to the Corporate Trust Office. In the event such firm requires
the Trustee to agree to the procedures performed by such firm, the
Servicer shall direct the Trustee in writing to so agree; it being
understood and agreed that the Trustee will deliver such letter of
agreement in conclusive reliance upon the direction of the Servicer, and
the Trustee makes no independent inquiry or investigation as to, and
shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures.
SECTION 5. Amendment of Section 3.07. Section 3.07 of the
Pooling and Servicing Agreement is hereby amended by deleting the third
sentence thereof in its entirety and inserting in its place the following:
Each Investor Certificateholder and the Holder of the Exchangeable
Seller Certificate by acquisition of its interest in the Seller
Interest; and each Certificate Owner, by acquisition of a beneficial
interest in a Certificate, agrees to be bound by the provisions of this
Section 3.07.
SECTION 6. Amendment of Section 4.01. Section 4.01 of the
Pooling and Servicing Agreement is hereby amended by deleting the second
sentence thereof in its entirety and inserting in its place the following:
The Exchangeable Seller Certificate or, as the case may be, the
uncertificated interest in the Seller Interest shall represent the
remaining undivided interest in the Trust, including the right to
receive the Collections and other amounts at the times and in the
amounts specified in this Article IV to be paid to the Holder of the
Exchangeable Seller Certificate; provided, however, that if the Seller
elects to have its interest in the Seller Interest be uncertificated as
provided in Section 6.01 hereof, then such uncertificated interest shall
represent the Seller Interest; provided further, that the aggregate
interest represented by such Certificate in the Principal Receivables
or, as the case may be, the aggregate uncertificated interest of the
Seller in the Principal Receivables, shall not exceed the Seller
Interest at any time and such Exchangeable Seller Certificate or, as the
case may be, such uncertificated interest shall not represent any
interest in the Investor Accounts, except as provided in this Agreement,
or the benefits of any Enhancement issued with respect to any Series.
SECTION 7. Amendment of Section 4.02 and Section 7 of the Series
Supplements.
(a) With respect to the Finance Charge and Principal Accounts,
subsection 4.02(d) is hereby amended by deleting the third sentence thereof in
its entirety and inserting in its place the following:
The Trustee shall:
(i) hold each Permitted Investment (other than such as are
described in clause (c) of the definition thereof) that
constitutes investment property through a securities
intermediary, which securities intermediary shall agree with
the Trustee that (I) such investment property shall at all
times be credited to a securities account of the Trustee,
(II) such securities intermediary shall comply with
entitlement orders originated by the Trustee without the
further consent of any other person or entity, (III) all
property credited to such securities account shall be
treated as a financial asset, (IV) such securities
intermediary shall waive any lien on, security interest in,
or right of set-off with respect to any property credited to
such securities account, and (V) such agreement shall be
governed by the laws of the State of New York;
(ii) maintain possession of each other Permitted Investment not
described in clause (i) above (other than such as are
described in clause (c) of the definition thereof); and
(iii) cause each Permitted Investment described in clause (c) of
the definition thereof to be registered in the name of the
Trustee by the issuer thereof;
provided, that no Permitted Investment shall be disposed of prior
to its maturity date. Terms used in clause (i) above that are
defined in the New York UCC and not otherwise defined herein shall
have the meaning set forth in the New York UCC.
(b) With respect to Cash Collateral Accounts, subsection 4.09(b)
in Section 7 of the Series Supplements is hereby amended by deleting, in each
case where such phrase appears, the phrase "possession of (1) the negotiable
instruments or securities evidencing the Cash Collateral Account Investments
described in clause (a) of the definition thereof and (2) any statements,
confirmations, records of account or other similar documents from the Cash
Collateral Depositor or other Person providing such documentation regarding
any Cash Collateral Account Investments described in clause (a) or (b) or the
final sentence of the definition thereof not evidenced by negotiable
instruments or securities, from the time of purchase thereof until the time of
maturity." and, in each such case, inserting in its place the following:
(i) hold of each Cash Collateral Account Investment that constitutes
investment property through a securities intermediary, which
securities intermediary shall agree with the Trustee that (I) such
investment property shall at all times be credited to a securities
account of the Trustee, (II) such securities intermediary shall
comply with entitlement orders originated by the Trustee without
the further consent of any other person or entity, (III) all
property credited to such securities account shall be treated as a
financial asset, (IV) such securities intermediary shall waive any
lien on, security interest in, or right of set-off with respect to
any property credited to such securities account, and (V) such
agreement shall be governed by the laws of the State of New York;
and
(ii) possession of each other Cash Collateral Account Investment not
described in clause (i) above;
provided, that no Cash Collateral Account Investment shall be disposed
of prior to its maturity date. Terms used in clause (i) above that are
defined in the New York UCC and not otherwise defined herein shall have
the meaning set forth in the New York UCC.
SECTION 8. Amendment of Section 4.03. Subsection 4.03(b) of the
Pooling and Servicing Agreement is hereby amended by deleting such subsection
in its entirety and inserting in its place the following:
(b) Allocations for the Holder of the Exchangeable Seller
Certificate. Throughout the existence of the Trust, unless otherwise
stated in any Supplement, the Servicer shall allocate to the Holder of
the Exchangeable Seller Certificate an amount equal to the product of
(A) the Seller Percentage and (B) the aggregate amount of such
Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period.
Notwithstanding anything in this Agreement to the contrary, unless
otherwise stated in any Supplement, the Servicer need not deposit this
amount or any other amounts so allocated to the Holder of the
Exchangeable Seller Certificate pursuant to any Supplement into the
Collection Account and shall pay, or be deemed to pay, such amounts as
collected to the Holder of the Exchangeable Seller Certificate.
SECTION 9. Amendment of Section 6.01. Section 6.01 of the Pooling
and Servicing Agreement is hereby amended by deleting the second and third
sentences thereof in their entirety and inserting in their place the
following:
The Seller may elect at any time, by written notice to the Trustee, to
have its interest in the Seller Interest be (i) an uncertificated
interest or (ii) evidenced by an Exchangeable Seller Certificate. If
the Seller elects to have its interest in the Seller Interest be
uncertificated, it shall deliver to the Trustee for cancellation any
Exchangeable Seller Certificate previously issued. If the Seller elects
to have its interest in the Seller Interest be evidenced by an
Exchangeable Seller Certificate, the Exchangeable Seller Certificate
shall be issued pursuant hereto or to Section 6.09 or Section 6.10,
substantially in the form of Exhibit A and shall upon issue be executed
and delivered by the Seller to the Trustee for authentication and
redelivery as provided in Sections 2.01 and 6.02. The Investor
Certificates shall, upon issue pursuant hereto or to Section 6.09 or
Section 6.10, be executed and delivered by the Seller to the Trustee for
authentication and redelivery as provided in Sections 2.01 and 6.02.
SECTION 10. Amendment of Section 6.02. Section 6.02 of the Pooling
and Servicing Agreement is hereby amended by deleting the fourth sentence
thereof in its entirety and inserting in its place the following:
Upon a New Issuance as provided in Section 6.09 and the satisfaction of
certain other conditions specified therein, the Trustee shall
authenticate and deliver the Investor Certificates of additional Series
(with the designation provided in the related Supplement), upon the
written order of the Seller, to the Persons designated in such
Supplement.
SECTION 11. Amendment of Section 6.03. Subsection 6.03(b) of the
Pooling and Servicing Agreement is hereby amended by deleting such subsection
in its entirety and inserting in its place the following:
(b) Except as provided in Section 6.09 or 7.02 or in any
Supplement, in no event shall the Exchangeable Seller Certificate or any
interest therein, or, as the case may be, the uncertificated interest in
the Seller Interest or any interest therein, be transferred hereunder,
in whole or in part, unless the Seller shall have consented in writing
to such transfer and unless the Trustee shall have received (1)
confirmation in writing from each Rating Agency that such transfer will
not result in a lowering or withdrawal of its then-existing rating of
any Series of Investor Certificates, and (2) an Opinion of Counsel that
such transfer does not adversely affect the conclusions reached in any
of the federal income tax opinions dated the applicable Closing Date
issued in connection with the original issuance of any Series of
Investor Certificates; provided, however, that unless the consent of the
Holders of Investor Certificates evidencing more than 50% of the
Aggregate Investor Interest is obtained for such transfer, the Holder of
the Exchangeable Seller Certificate shall be permitted to transfer the
Exchangeable Seller Certificate or, as the case may be, the
uncertificated interest in the Seller Interest only if such Holder shall
have provided the Trustee with an Opinion of Counsel to the effect that
the contemplated transfer would be treated as a financing and not as a
sale for federal income tax purposes.
SECTION 12. Amendment of Section 6.09. Section 6.09 of the Pooling
and Servicing Agreement is hereby amended by deleting such section in its
entirety and inserting in its place the following:
Section 6.09 New Issuances.
(a) Upon the issuance of Investor Certificates of a new
Series, the Trustee shall issue to the Holder of the Exchangeable Seller
Certificate under Section 6.01, for execution and redelivery to the
Trustee for authentication under Section 6.02, Investor Certificates of
such Series. Each Investor Certificate of any such Series shall be
substantially in the form specified in the related Supplement and shall
bear upon its face the designation for such Series to which it belongs,
as selected by the Seller. Except as specified in any Supplement for a
related Series, all Investor Certificates of any Series shall rank pari
passu and be equally and ratably entitled as provided herein to the
benefits hereof (except that the Enhancement provided for any Series
shall not be available for any other Series) without preference,
priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and
provisions of this Agreement and the related Supplement.
(b) The Holder of the Exchangeable Seller Certificate may
permit Investor Certificates of one or more new Series to be issued
(each, a "New Issuance") by notifying the Trustee in writing at least
five Business Days in advance (a "New Issuance Notice") of the date upon
which the New Issuance is to occur (a "New Issuance Date"). Any New
Issuance Notice shall state the designation of any Series (and Class
thereof, if applicable) to be issued on the New Issuance Date and, with
respect to each such Series: (a) its Initial Investor Interest (or the
method for calculating such Initial Investor Interest), which at any
time may not be greater than the current principal amount of the
Exchangeable Seller Certificate or, as the case may be, the
uncertificated interest in the Seller Interest at such time, (b) its
Certificate Rate (or the method for allocating interest payments or
other cash flows to such Series), if any, and (c) the Enhancement
Provider, if any, with respect to such Series. On the New Issuance
Date, the Trustee shall authenticate and deliver the Investor
Certificates of any such Series only upon delivery to it of the
following: (a) a Supplement satisfying the criteria set forth in
subsection 6.09(c) executed by the Seller and specifying the Principal
Terms of such Series, (b) the applicable Enhancement, if any, (c) the
agreement, if any, pursuant to which the Enhancement Provider agrees to
provide any Enhancement, (d)(i) an Opinion of Counsel to the effect
that, except to the extent otherwise stated in the related Supplement,
the Investor Certificates of the newly issued Series will be treated as
debt for federal income tax purposes and (ii) a Tax Opinion with respect
to the issuance of such Series, (e) written confirmation from each
Rating Agency that the New Issuance will not result in such Rating
Agency's reducing or withdrawing its rating on any then outstanding
Series as to which it is a Rating Agency, and (f) an Officer's
Certificate signed by a Vice President (or any more senior officer) of
the Seller, that on the New Issuance Date (i) the Seller, after giving
effect to such New Issuance, would not be required to add additional
Accounts pursuant to subsection 2.06(a) and (ii) after giving effect to
such New Issuance, the Seller Interest would be at least equal to the
Minimum Seller Interest. Upon satisfaction of such conditions, the
Trustee shall issue the Investor Certificates of such Series and a new
Exchangeable Seller Certificate, if applicable, dated the New Issuance
Date, as provided above. There is no limit to the number of New
Issuances that may be performed under this Agreement.
(c) In conjunction with a New Issuance, the parties hereto
shall execute a Supplement, which shall specify the relevant terms with
respect to the Investor Certificates of any newly issued Series, which
may include without limitation: (i) its name or designation, (ii) an
Initial Investor Interest or the method of calculating the Initial
Investor Interest, (iii) the Certificate Rate (or formula for the
determination thereof), (iv) the Closing Date, (v) the Rating Agency
rating such Series, (vi) the name of the Clearing Agency, if any, (vii)
the rights of the Holder of the Exchangeable Seller Certificate that
have been transferred to the Holders of such Series pursuant to such New
Issuance (including any rights to allocations of Collections of Finance
Charge Receivables and Principal Receivables), (viii) the interest
payment date or dates and the date or dates from which interest shall
accrue, (ix) the method of allocating Collections with respect to
Principal Receivables for such Series and, if applicable, with respect
to other Series, the method by which the principal amount of Investor
Certificates of such Series shall amortize or accrete and the method for
allocating Collections with respect to Finance Charge Receivables and
Receivables in Defaulted Accounts, (x) the names of any accounts to be
used by such Series and the terms governing the operation of any such
account and use of moneys therein, (xi) the Series Servicing Fee
Percentage, (xii) the Minimum Seller Interest and the Series Termination
Date, (xiii) the terms of any Enhancement with respect to such Series
and the Enhancement Provider, if applicable, (xiv) the base rate
applicable to such Series, (xv) the terms on which the Certificates of
such Series may be repurchased or remarketed to other investors, (xvi)
any deposit into any account provided for such Series, (xvii) the number
of Classes of such Series and, if more than one Class, the rights and
priorities of each such Class, (xviii) whether Interchange or other fees
will be included in the funds available to be paid for such Series,
(xix) the priority of any Series with respect to any other Series, (xx)
the rights, if any, of the Holders of the Exchangeable Seller
Certificate that have been transferred to the Holders of such Series,
(xxi) the Pool Factor, (xxii) the Minimum Aggregate Principal
Receivables, (xxiii) whether such Series will be part of a Group and
(xxiv) any other relevant terms of such Series (including whether or not
such Series will be pledged as collateral for an issuance of any other
securities, including commercial paper) (all such terms, the "Principal
Terms" of such Series). The terms of such Supplement may modify or
amend the terms of this Agreement solely as applied to such new Series.
If on the date of the issuance of such Series there is issued and
outstanding one or more Series of Investor Certificates and no Series of
Investor Certificates is currently rated by a Rating Agency, then as a
condition to such New Issuance a nationally recognized investment
banking firm or commercial bank shall also deliver to the Trustee an
officer's certificate stating, in substance, that the New Issuance will
not have an adverse effect on the timing or distribution of payments to
the Investor Certificates of such other Series then issued and
outstanding.
SECTION 13. Amendment of Section 12.03. Subsection 12.03(a) of
the Pooling and Servicing Agreement is hereby amended by deleting the second
sentence thereof in its entirety and inserting in its place the following:
The Servicer shall also deliver to the Trustee, as soon as is
practicable but in no event not later than three Business Days after the
Determination Date relating to the final payment described in the
preceding sentence, an Officers' Certificate setting forth the
information, to the extent available, specified in Article V of this
Agreement covering the period during the then current calendar year
through the date of such notice and setting forth the date of such final
distribution.
SECTION 14. Amendment of Section 12.04. Section 12.04 of the
Pooling and Servicing Agreement is hereby amended by deleting the first
sentence thereof in its entirety and inserting in its place the following:
Upon the termination of the Trust pursuant to Section 12.01, and after
payment of all amounts due hereunder on or prior to such termination and
the surrender of the Exchangeable Seller Certificate, if applicable, the
Trustee shall execute a written reconveyance substantially in the form
of Exhibit H pursuant to which it shall reconvey to the Holder of the
Exchangeable Seller Certificate (without recourse, representation or
warranty) all right, title and interest of the Trust in the Receivables,
whether then existing or thereafter created, all moneys due or to become
due with respect to such Receivables (including all accrued interest
theretofore posted as Finance Charge Receivables) and all proceeds of
such Receivables and Insurance Proceeds relating to such Receivables and
Interchange (if any) allocable to the Trust pursuant to any Supplement,
except for amounts held by the Trustee pursuant to subsection 12.03(b).
SECTION 15. Amendment of Section 13.02. Subsection 13.02(c) is
hereby amended by deleting the reference to the "principal executive office"
in first sentence thereof in its entirety and inserting in its place "chief
executive office."
SECTION 16. Effectiveness. The amendments provided for by this
Second Amendment shall become effective upon receipt by the Trustee of the
following, each of which shall be satisfactory to the Trustee:
(a) Notification in writing from each of Moody's and Standard &
Poor's to the effect that the terms of this Second Amendment will not result
in a reduction or withdrawal of the rating of any outstanding Series or Class
to which it is a Rating Agency.
(b) Written confirmation from the Seller and Servicer that it has
received a copy of the written notification referred to in subsection 16(a)
above and that such written notification is satisfactory to the Seller and
Servicer in its sole discretion.
(c) An Opinion of Counsel for the Seller addressed to the Trustee
to the effect that the terms of this Second Amendment will not adversely
affect in any material respect the interests of any Investor
Certificateholder.
(d) Counterparts of this Second Amendment, duly executed by the
parties hereto.
SECTION 17. Pooling and Servicing Agreement in Full Force and
Effect as Amended. Except as specifically amended or waived hereby, all of
the terms and conditions of the Pooling and Servicing Agreement shall remain
in full force and effect. All references to the Pooling and Servicing
Agreement in any other document or instrument shall be deemed to mean such
Pooling and Servicing Agreement as amended by this Second Amendment. This
Second Amendment shall not constitute a novation of the Pooling and Servicing
Agreement, but shall constitute an amendment thereof. The parties hereto
agree to be bound by the terms and obligations of the Pooling and Servicing
Agreement, as amended by this Second Amendment, as though the terms and
obligations of the Pooling and Servicing Agreement were set forth herein.
SECTION 18. Counterparts. This Second Amendment may be executed
in any number of counterparts and by separate parties hereto on separate
counterparts, each of which when executed shall be deemed an original, but all
such counterparts taken together shall constitute one and the same instrument.
SECTION 19. Governing Law. THIS SECOND AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS; PROVIDED, HOWEVER, THAT THE IMMUNITIES AND STANDARD OF CARE OF THE
TRUSTEE IN THE ADMINISTRATION OF THE TRUST HEREUNDER SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 20. Defined Terms and Section References. Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
to such terms in the Pooling and Servicing Agreement. All Section or
subsection references herein shall mean Sections or subsections of the Pooling
and Servicing Agreement, except as otherwise provided herein.
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have
caused this Second Amendment to be duly executed by their respective officers
as of the day and year first above written.
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
Seller and Servicer
By: _Elizabeth X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
BANKERS TRUST COMPANY,
Trustee
By: __Lillian X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
(..continued)
DOCSDC1:62152.5 11
DOCSDC1:62152.5
