Exhibit 4.1
FIFTH AMENDMENT
TO
THE MBNA MASTER CREDIT CARD TRUST II
POOLING AND SERVICING AGREEMENT
THIS FIFTH AMENDMENT TO THE MBNA MASTER CREDIT CARD TRUST
II POOLING AND SERVICING AGREEMENT, dated as of March 30, 2001 (the
"Fifth 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. Section 1.01 of
the Pooling and Servicing Agreement shall be and hereby is amended by
the addition of the following definition which shall read in its
entirety, as follows:
"Permitted Activities" means the primary activities of the
Trust, which are:
(a) holding Receivables transferred from the Seller and
the other assets of the Trust, which assets can not be contrary
to the status of the Trust as a qualified special purpose entity
under existing accounting literature, including passive
derivative financial instruments that pertain to beneficial
interests issued or sold to parties other than the Seller, its
Affiliates or its agents;
(b) issuing Certificates and other interests in the Trust
assets;
(c) receiving Collections and making payments on such
Certificates and interests in accordance with the terms of this
Agreement and any Series Supplement; and
(d) engaging in other activities that are necessary or
incidental to accomplish these limited purposes, which activities
can not be contrary to the status of the Trust as a qualified
special purpose entity under existing accounting literature.
SECTION 2. Amendment of Section 2.07. Section 2.07 of
the Pooling and Servicing Agreement shall be and hereby is amended by
the addition of the following subsection (d), which shall read in its
entirety as follows:
(d) In addition to the terms and conditions
contained in subsections 2.07(a) and 2.07(b), the Seller's right
to require the reassignment to it or its designee of all the
Trust's right, title and interest in, to and under the
Receivables in Removed Accounts, shall be subject to the
following restrictions:
(i) Except for Removed Accounts described in
subsections 2.07(c) and 2.07(d)(ii), the Accounts to be
designated as Removed Accounts shall be selected at random
by the Seller.
(ii) The Seller may designate Removed Accounts
as provided in and subject to the terms and conditions
contained in this Section 2.07 without being subject to the
restrictions set forth in subsection 2.07(d)(i) if the
Removed Accounts are designated in response to a third-
party action or decision not to act and not the unilateral
action of the Seller.
SECTION 3. Amendment of Section 9.02. Section 9.02(a) of
the Pooling and Servicing Agreement shall be and hereby is amended by
deleting the third and fourth sentence thereof in its entirety, and
inserted in its place shall be the following:
Within 15 days of the Appointment Day, the Trustee shall (i)
publish a notice in an Authorized Newspaper that an Insolvency
Event or violation has occurred and that the Trustee intends to
sell, dispose of or otherwise liquidate the Receivables and (ii)
send written notice to the Investor Certificateholders describing
the provisions of this Section 9.02 and requesting instructions
from such Holders. Unless within 90 days from the day notice
pursuant to clause (i) above is first published the Trustee shall
have received written instructions from Holders of Investor
Certificates evidencing more than 50% of the Investor Interest of
each Series issued and outstanding (or, if any such Series has
two or more Classes, each Class) to the effect that such
Certificateholders disapprove of the liquidation of the
Receivables and wish to continue having Principal Receivables
transferred to the Trust as before such Insolvency Event or
violation, the Trustee shall use its best efforts to sell,
dispose of or otherwise liquidate the Receivables by the
solicitation of competitive bids and on terms equivalent to the
best purchase offer as determined by the Trustee. Neither the
Seller nor any Affiliate of the Seller nor any agent of the
Seller shall be permitted to purchase such Receivables in such
case.
SECTION 4. Amendment of Section 10.02. Section 10.02(a)
of the Pooling and Servicing Agreement shall be and hereby is amended
by deleting the fifth sentence thereof in its entirety, and inserted in
its place shall be the following:
If the Trustee is unable to obtain any bids from any potential
successor servicer and the Servicer delivers an Officer's
Certificate to the effect that they cannot in good faith cure the
Servicer Default which gave rise to a Termination Notice, and if
the Trustee is legally unable to act as Successor Servicer, then
the Trustee shall notify each Credit Enhancement Provider of the
proposed sale of the Receivables and shall provide each such
Credit Enhancement Provider an opportunity to bid on the
Receivables and, except in the case of a Servicer Default set
forth in subsection 10.01(d), shall offer the Seller the right of
first refusal to purchase the Receivables on terms equivalent to
the best purchase offer as determined by the Trustee, but in no
event less than an amount equal to the Aggregate Investor
Interest on the date of such purchase plus all interest accrued
but unpaid on all of the outstanding Investor Certificates at the
applicable Certificate Rate through the date of such purchase;
provided, however, that if the short-term deposits or long-term
unsecured debt obligations of the Seller (or if neither such
deposits nor such obligations of the Seller are rated by Moody's,
if Xxxxx'x is a Rating Agency with respect to any Series of
Certificates outstanding, then of the holding company of the
Seller so long as such holding company shall be MBNA Corporation)
are not rated at the time of such purchase at least P-3 or Baa3,
respectively, by Moody's, if Xxxxx'x is a Rating Agency with
respect to any Series of Certificates outstanding, no such
purchase by the Seller shall occur unless the Seller shall
deliver an Opinion of Counsel reasonably acceptable to the
Trustee that such purchase would not constitute a fraudulent
conveyance of the Seller.
SECTION 5. Amendment of Section 12.01. Section 12.01(b)
of the Pooling and Servicing Agreement shall be and hereby is amended
by deleting the fourth sentence thereof in its entirety, and inserted
in its place shall be the following:
Neither the Seller nor any Affiliate of the Seller nor any agent
of the Seller shall be permitted to purchase such Receivables in
such case.
SECTION 6. Amendment of Section 12.02. Section 12.02(a)
of the Pooling and Servicing Agreement shall be and hereby is amended
by inserting after the word "Seller" where first used the following:
(so long as the Seller is the Servicer or an Affiliate of
the Servicer)
SECTION 7. Amendment of Section 12.05. Section 12.05 of
the Pooling and Servicing Agreement shall be and hereby is amended by
deleting such section in its entirety.
SECTION 8. Amendment of Section 13.01. (a) Section
13.01(a) of the Pooling and Servicing Agreement shall be and hereby is
amended by adding at the end of the first sentence thereof the
following, which shall read in its entirety as follows:
; provided further, that such action shall not effect a
significant change in the Permitted Activities of the Trust
(b) Section 13.01(b) of the Pooling and Servicing
Agreement shall be and hereby is amended by inserting after the word
"Trustee" where first used the following:
(A) in the case of a significant change in the Permitted
Activities of the Trust which is not materially adverse to
Holders of Investor Certificates, with the consent of Holders of
Investor Certificates evidencing Undivided Interests aggregating
not less than 50% of the Investor Interest of each outstanding
Series affected by such change, and (B) in all other cases
SECTION 9. Effectiveness. The amendments provided for by
this Fifth 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 Fifth 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
9(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 Fifth Amendment will not
adversely affect in any material respect the interests of any Investor
Certificateholder.
(d) Counterparts of this Fifth Amendment, duly executed by
the parties hereto.
SECTION 10. 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 Fifth Amendment. This Fifth 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 Fifth Amendment, as though the terms and obligations of
the Pooling and Servicing Agreement were set forth herein.
SECTION 11. Counterparts. This Fifth 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 12. Governing Law. THIS FIFTH 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 13. 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 Fifth 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. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
Trustee
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Assistant Treasurer
(..continued)
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DOCSDC1:120575.8 2
