EXHIBIT 4.01
THIRD AMENDMENT
TO
THE MBNA MASTER CREDIT CARD TRUST II
POOLING AND SERVICING AGREEMENT
THIS THIRD AMENDMENT TO THE MBNA MASTER CREDIT CARD TRUST
II POOLING AND SERVICING AGREEMENT, dated as of January 10, 1999 (the
"Third Amendment") is by and between MBNA AMERICA BANK, NATIONAL
ASSOCIATION, as Seller and Servicer, and THE BANK OF NEW YORK, as
Trustee.
WHEREAS the Seller and Servicer and the Trustee have
executed that certain Pooling and Servicing Agreement, dated as of
August 4, 1994 (as amended and supplemented through the date hereof and
as the same may be further amended, supplemented or otherwise modified
and in effect from time to time, the "Pooling and Servicing
Agreement");
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 to amend the
provisions of the Pooling and Servicing Agreement as follows:
SECTION 1. Amendment of Section 1.01. The definition of "Minimum
Seller Interest" 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:
"Minimum Seller Interest" shall mean 4% (or such
other percentage as specified in the related Supplement) of the
Average Principal Receivables; provided, however, that the Seller
may reduce the Minimum Seller Interest upon (w) delivery to the
Trustee of a Tax Opinion with respect to such reduction, (x) 30
day's prior notice to the Trustee, each Rating Agency and any
Credit Enhancement Provider entitled to receive such notice
pursuant to the relevant Supplement, (y) written confirmation
from the Rating Agency that such reduction will not result in the
reduction or withdrawal of the respective ratings of each Rating
Agency for any Series outstanding and (z) delivery to the Trustee
and each such Credit Enhancement Provider of an Officer's
Certificate stating that the Seller reasonably believes that such
reduction will not, based on the facts known to such officer at
the time of such certification, then or thereafter cause a Pay
Out Event to occur with respect to any Series; provided further
that the Minimum Seller Interest shall not at any time be less
than 2%.
SECTION 2. Amendment of Subsection 4.03(b). 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 to the Holder of the Seller Interest.
Throughout the existence of the Trust, unless otherwise stated in
any Supplement, the Servicer shall allocate to the Holder of the
Seller Interest 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;
provided, however, that amounts payable to the Holder of the
Seller Interest with respect to Collections allocated to
Principal Receivables pursuant to this subsection 4.03(b) shall
be deposited in the Principal Account to the extent that the
Seller Interest is less than the Minimum Seller Interest.
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 Seller Interest 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 Seller Interest.
Notwithstanding any provisions of Article IV to the
contrary, including the continuation of Article IV in any Series
Supplement, any Collections in respect of Principal Receivables
allocated to the Holder of the Seller Interest shall be (i) paid
to the Holder of the Seller Interest if, and only to the extent
that, the Seller Interest is equal to or greater than the Minimum
Seller Interest and the payment of such amount to the Holder of
the Seller Interest would not cause the Seller Interest to be
less than the Minimum Seller Interest, or (ii) held in the
Principal Account and treated and applied as Unallocated
Principal Collections (as such term is defined in the related
Series Supplement). On any Business Day following a Business Day
on which amounts were held in the Principal Account pursuant to
clause (ii) above, any amounts held in the Principal Account
pursuant to clause (ii) above shall be paid to the Holder of the
Seller Interest when, and only to the extent that, the Seller
Interest is greater than the Minimum Seller Interest.
SECTION 3. Effectiveness. The amendments provided for by this Third
Amendment shall become effective upon receipt by the Trustee of the
following:
(a) Notification in writing from each of Moody's and
Standard & Poor's to the effect that the terms of this Third 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) Confirmation from the Seller and Servicer that it has
received a copy of the written notification referred to in subsection
3(a) above and that such written notification is satisfactory to the
Seller and Servicer in its sole discretion.
(c) A Tax Opinion addressed to the Trustee with respect to
such Third Amendment.
(d) An Officer's Certificate of the Seller addressed to the
Trustee and delivered to each Credit Enhancement Provider stating that
the Seller reasonably believes that such Third Amendment will not,
based on the facts known to such officer on the date hereof, now or
hereafter cause a Pay Out Event with respect to any Series.
(e) An Opinion of Counsel for the Seller addressed to the
Trustee to the effect that the terms of this Third Amendment will not
adversely affect in any material respect the interests of any Investor
Certificateholder.
(f) Counterparts of this Third Amendment, duly executed by
the parties hereto.
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 Third
Amendment. This Third 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
Third Amendment, as though the terms and obligations of the Pooling and
Servicing Agreement were set forth herein.
Counterparts. This Third 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.
Governing Law. THIS THIRD 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.
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 Third 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: /s/ Xxxxx X. Hamstead________
Name: Xxxxx X. Xxxxxxxx
Title: First Vice President
THE BANK OF NEW YORK,
Trustee
By: /s/ Xxxxx X. Macadaeg________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
(..continued)
DOCSDC1:71431.5 2
