EXECUTION
COPY
FIRST AMENDMENT
TO THE
POOLING AND SERVICING AGREEMENT
THIS FIRST AMENDMENT TO THE POOLING AND SERVICING AGREEMENT,
dated as of June 1, 1997 (the "First 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 "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 as follows:
SECTION 1. Amendments of Section 1.01.
(a) Section 1.01 is hereby amended by adding the following
definitions in the appropriate alphabetical order:
"Tax Opinion" shall mean with respect to any action,
an Opinion of Counsel to the effect that, for federal income tax
purposes, (a) such action will not adversely affect the tax
characterization as debt of Investor Certificates of any
outstanding Series or Class that were characterized as debt at the
time of their issuance, (b) following such action the Trust will
not be deemed to be an association (or publicly traded
partnership) taxable as a corporation and (c) such action will not
cause or constitute an event in which gain or loss would be
recognized by any Investor Certificateholder or the Trust.
"Zero Balance Account" shall mean an Account with a
Receivable balance of zero which the Servicer will remove from its
computer master file of VISA and MasterCard accounts.
(b) The definition of "Opinion of Counsel" in Section 1.01
is hereby amended to read as follows:
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be counsel for or an employee of the Person
providing the opinion, and who shall be reasonably acceptable to
the Trustee; provided, however, that any Tax Opinion or other
opinion relating to federal income tax matters shall be an opinion
of nationally recognized tax counsel.
SECTION 2. Amendment of Section 2.01. The last sentence of
the third paragraph under Section 2.01 is hereby amended to read as
follows:
The Seller further agrees not to alter the file designation
referenced in clause (i) of this paragraph with respect to any
Account during the term of this Agreement unless and until such
Account becomes a Removed Account, a Defaulted Account or a Zero
Balance Account.
SECTION 3. Amendment of Section 2.07. Section 2.07 is
hereby amended to add the following subsection immediately after
subsection 2.07(b):
(c) The Seller may, but shall not be obligated to,
designate at any time Zero Balance Accounts, any future
receivables of which will no longer be part of the Trust, and to
remove the designation 1991-MT from the Pool Index File for such
Accounts; provided, that prior to such designation and removal,
the Seller shall have delivered to Moody's an Officer's
Certificate to the effect that to the knowledge of the Seller,
such designation and removal shall not cause a Pay Out Event to
occur.
SECTION 4. Amendment of Subsection 3.06(a). Subsection
3.06(a) is hereby amended to read as follows:
(a) On or before August 31 of each calendar year beginning
in 1997, 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 the Rating Agency, attesting
to the fairness of the assertion of the Servicer's management that
internal control policies and procedures 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 (or for the initial period, the relevant Closing Date) 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.
SECTION 5. Amendment of Subsection 4.03(a). Subsection
4.03(a) is hereby amended to add the following paragraph immediately
after the current subsection 4.03(a):
Notwithstanding anything else in this Agreement to the
contrary, with respect to any Monthly Period, whether the Servicer
is required to make monthly or daily deposits from the Collection
Account into the Finance Charge Account, the Principal Account or
any Series Account, as provided in any Supplement, (i) the
Servicer will only be required to deposit Collections from the
Collection Account into the Finance Charge Account, the Principal
Account or any Series Account up to the required amount to be
deposited into any such deposit account or, without duplication,
distributed on or prior to the related Distribution Date to
Investor Certificateholders or to any Enhancement Provider
pursuant to the terms of any Supplement or agreement relating to
such Enhancement and (ii) if at any time prior to such
Distribution Date the amount of Collections deposited in the
Collection Account exceeds the amount required to be deposited
pursuant to clause (i) above, the Servicer will be permitted to
withdraw the excess from the Collection Account.
SECTION 6. Effectiveness. The amendments provided for by
this First Amendment shall become effective upon receipt by the Trustee
of the following, each of which shall be satisfactory to the Trustee in
its sole discretion:
(a) Notification in writing from each of Moody's and
Standard & Poor's to the effect that the terms of this First 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
6(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 First Amendment will not
adversely affect in any material respect the interests of any Investor
Certificateholder.
(d) Counterparts of this First Amendment, duly executed by
the parties hereto.
SECTION 7. 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
First Amendment. This First 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 First Amendment, as though the terms and obligations of the Pooling
and Servicing Agreement were set forth herein.
SECTION 8. Counterparts. This First 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 9. Governing Law. THIS FIRST 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 10. Defined Terms. Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms
in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee
have caused this First 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. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: First Vice President
BANKERS TRUST COMPANY,
Trustee
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
(..continued)
