Exhibit 4.6
EXECUTION COPY
FIRST AMENDMENT
TO THE SERIES 2001-D SUPPLEMENT TO THE
MBNA MASTER CREDIT CARD TRUST II
POOLING AND SERVICING AGREEMENT
THIS FIRST AMENDMENT TO THE SERIES 2001-D SUPPLEMENT TO THE MBNA MASTER
CREDIT CARD TRUST II POOLING AND SERVICING AGREEMENT, dated as of July 12, 2001
(the "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") and that certain Series 2001-D Supplement, dated as of
May 24, 2001 (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 "Series Supplement");
WHEREAS the Seller and Servicer and the Trustee wish to amend the
Series Supplement 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 Series
Supplement as follows:
SECTION 1. Section 22. The Series Supplement shall be and hereby is
amended by adding the following Section 22, which shall read in its entirety as
follows:
SECTION 22. Additional Representations and Warranties of the Seller.
MBNA America Bank, National Association, as Seller, hereby makes the
following representations and warranties. Such representations and
warranties shall survive until the termination of this Series Supplement.
Such representations and warranties speak of the date that the Collateral
(as defined below) is transferred to the Trust but shall not be waived by
any of the parties to this Series Supplement unless each Rating Agency
shall have notified the Seller, the Servicer and the Trustee in writing
that such waiver will not result in a reduction or withdrawal of the rating
of any outstanding Series or Class to which it is a Rating Agency.
(a) The Agreement creates a valid and continuing security interest
(as defined in the Delaware UCC) in favor of the Trust in the Receivables
described in Section 2.01 of the Agreement or in Section 3(a) of any
Assignment (the "Collateral"), which security interest is prior to all
other liens, and is enforceable as such as against
creditors of and purchasers from the Seller.
(b) The Collateral constitutes "accounts" within the meaning of the
Delaware UCC.
(c) At the time of each transfer and assignment of Collateral to the
Trust pursuant to the Agreement or an Assignment, the Seller owned and had
good and marketable title to such Collateral free and clear of any lien,
claim or encumbrance of any Person.
(d) The Seller has caused or will have caused, within ten days of the
initial execution of the Agreement and each Assignment, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the related Collateral granted to the Trust pursuant
to the Agreement or such Assignment.
(e) Other than the security interest granted to the Trust pursuant to
the Agreement or an Assignment, the Seller has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed the Collateral. The
Seller has not authorized the filing of and is not aware of any financing
statements against the Seller that include a description of the Collateral
other than any financing statement relating to the security interest
granted to the Trust pursuant to the Agreement or an Assignment or that has
been terminated. The Seller is not aware of any judgment or tax lien
filings against the Seller.
SECTION 2. Effectiveness. The amendments provided for by this Amendment
shall become effective upon receipt by the Trustee of the following:
(a) Notification in writing from each Rating Agency to the effect
that the terms of this 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 2(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 Amendment will not adversely affect in any
material respect the interests of any Investor Certificateholder.
(d) Counterparts of this Amendment, duly executed by the parties
hereto.
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SECTION 3. Series Supplement in Full Force and Effect as Amended.
Except as specifically amended or waived hereby, all of the terms and conditions
of the Series Supplement shall remain in full force and effect. All references
to the Series Supplement in any other document or instrument shall be deemed to
mean such Series Supplement as amended by this Amendment. This Amendment shall
not constitute a novation of the Series Supplement, but shall constitute an
amendment thereof. The parties hereto agree to be bound by the terms and
obligations of the Series Supplement, as amended by this Amendment, as though
the terms and obligations of the Series Supplement were set forth herein.
SECTION 4. Counterparts. This 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 5. Governing Law. THIS 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 6. 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, as supplemented by the Series
Supplement. All Section or subsection references herein shall mean Sections or
subsections of the Series Supplement, except as otherwise provided herein.
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IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have
caused this 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
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