EXHIBIT 4.11
FORM OF TRUST AGREEMENT
--------------------------------------------------------------------------------
MBNA CREDIT CARD MASTER NOTE TRUST
TRUST AGREEMENT
dated as of [_________________], 2001
between
MBNA AMERICA BANK, NATIONAL ASSOCIATION,
as Beneficiary and as Transferor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................................................... 1
Section 1.02. Generic Terms....................................................... 3
ARTICLE II
ORGANIZATION; DECLARATION OF TRUST
BY THE OWNER TRUSTEE; COLLATERAL CERTIFICATE
Section 2.01. Formation of Trust; Name............................................ 4
Section 2.02. Transfer of Property to Trust; Initial Capital Contribution of
Trust Estate........................................................ 4
Section 2.03. Purposes and Powers; Trust To Operate as a Single Purpose
Entity.............................................................. 4
Section 2.04. Appointment of Owner Trustee........................................ 7
Section 2.05. Declaration of Trust................................................ 7
Section 2.06. Title to Trust Estate............................................... 7
Section 2.07. Nature of Interest in the Trust Estate.............................. 7
Section 2.08. Creation of Trust; Principal Office of Owner Trustee................ 7
Section 2.09. Tax Matters......................................................... 8
Section 2.10. Fiscal Year......................................................... 8
Section 2.11. Transfer of Collateral Certificate.................................. 8
Section 2.12. Closing............................................................. 9
Section 2.13. Books and Records................................................... 9
Section 2.14. Series 2001-__Certificateholder..................................... 9
Section 2.15. Representations and Warranties of the Transferor.................... 9
Section 2.16. Protection of Title to Collateral Certificate....................... 10
Section 2.17. Assignment to Indenture Trustee..................................... 11
Section 2.18. Merger or Consolidation of, or Assumption of the Obligations
of, Transferor...................................................... 11
Section 2.19. Limitation on Liability of Transferor and Others.................... 12
-i-
TABLE OF CONTENTS
(continued)
Page
----
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARY
Section 3.01. Representations and Warranties of the Beneficiary................... 12
ARTICLE IV
DISTRIBUTIONS OF FUNDS
Section 4.01. Distribution of Funds............................................... 13
Section 4.02. Payments from Trust Estate Only..................................... 13
Section 4.03. Method of Payment................................................... 13
Section 4.04. Establishment of Account............................................ 14
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
Section 5.01. Action Upon Instructions............................................ 14
Section 5.02. No Duty to Act Under Certain Circumstances.......................... 15
Section 5.03. No Duties Except Under Specified Agreements or Instructions......... 15
Section 5.04. Trust Operation..................................................... 16
Section 5.05. Execution of Documents.............................................. 16
Section 5.06. Nonpetition Covenants............................................... 17
ARTICLE VI
CONCERNING THE TRUSTEE BANK
Section 6.01. Acceptance of Trust and Duties...................................... 17
Section 6.02. Furnishing of Documents............................................. 18
Section 6.03. Representations and Warranties as to the Trust Estate............... 18
Section 6.04. Signature of Returns................................................ 19
Section 6.05. Reliance; Advice of Counsel......................................... 19
Section 6.06. Not Acting in Individual Capacity................................... 19
Section 6.07. Representations and Warranties...................................... 19
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.01. Termination of Trust Agreement...................................... 20
-ii-
TABLE OF CONTENTS
(continued)
Page
----
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.01. Resignation and Removal of the Owner Trustee; Appointment
of Successors....................................................... 20
Section 8.02. Transfer Procedures................................................. 21
Section 8.03. Qualification of Owner Trustee...................................... 21
Section 8.04. Co-trustees and Separate Owner Trustees............................. 21
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments.......................................................... 22
ARTICLE X
OWNERSHIP INTERESTS AND CERTIFICATES
Section 10.01. Issuance of Trust Certificates...................................... 23
Section 10.02. Beneficial Interest; Prohibitions on Transfer....................... 23
Section 10.03. Lost or Destroyed Trust Certificate................................. 24
ARTICLE XI
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01. Trustee Bank Fees and Expenses...................................... 24
Section 11.02. Indemnification..................................................... 25
ARTICLE XII
MISCELLANEOUS
Section 12.01. Conveyance by the Owner Trustee is Binding.......................... 25
Section 12.02. Instructions; Notices............................................... 26
Section 12.03. Severability........................................................ 26
Section 12.04. Limitation of Liability............................................. 26
Section 12.05. Separate Counterparts............................................... 27
Section 12.06. Successors and Assigns.............................................. 27
Section 12.07. Headings............................................................ 27
Section 12.08. Governing Law....................................................... 27
Section 12.09. No Recourse......................................................... 27
-iii-
TABLE OF CONTENTS
(continued)
Page
----
Section 12.10. Acceptance of Terms of Agreement.................................... 27
-iv-
Page
----
EXHIBITS
EXHIBIT A [FORM OF TRUST CERTIFICATE]............................... A-1
EXHIBIT B CERTIFICATE OF TRUST OF MBNA
CREDIT CARD MASTER NOTE TRUST........................... B-1
-v-
MBNA CREDIT CARD MASTER NOTE TRUST TRUST AGREEMENT dated as of [________],
2001, between MBNA AMERICA BANK, NATIONAL ASSOCIATION ("MBNA"), a national
----
banking association, as Beneficiary and as Transferor, and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as owner trustee (the "Owner Trustee").
-------------
In consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. (a) Capitalized terms used herein and not
-----------
defined herein have the meaning assigned to them in the Series 2001-__
Supplement or the Pooling and Servicing Agreement. For purposes of this
Agreement, the following terms have the following meanings:
"Agreement" means this MBNA Credit Card Master Note Trust Trust Agreement,
---------
as the same may be amended, modified or supplemented from time to time.
"Beneficiary" means MBNA, as beneficial owner of the Trust, and each
-----------
Permitted Affiliate Transferee and other transferee under Section 10.02.
-------------
"Beneficiary Trust Account" means the account established by the Owner
-------------------------
Trustee on behalf of the Trust in accordance with Section 4.04.
------------
"Certificate of Trust" shall mean the Certificate of Trust in the form
--------------------
attached hereto as Exhibit B which has been filed for the Trust pursuant to
---------
Section 3810(a) of the Delaware Business Trust Act.
"Code" means the Internal Revenue Code of 1986, as it may be amended from
----
time to time.
"Collateral Certificate" means the Series 2001-__ Certificate issued
----------------------
pursuant to the Pooling and Servicing Agreement and the Series 2001-__
Supplement, as amended, supplemented, restated or otherwise modified from time
to time.
"Delaware Business Trust Act" means the Delaware Business Trust Act, 12
---------------------------
▇▇▇.▇.▇▇.▇▇. 3801, et seq., as amended from time to time, and any successor
-- ---
statute thereto.
"Deliveries" is defined in Section 12.02.
---------- -------------
"Disqualification Event" with respect to the Owner Trustee means (a) the
----------------------
bankruptcy, insolvency or dissolution of the Owner Trustee, (b) the occurrence
of the date of resignation of the Owner Trustee, as set forth in a notice of
resignation given pursuant to Section 8.01, or (c) the delivery to the Owner
------------
Trustee of the instrument or instruments of removal referred to in Section 8.01
------------
(or, if such instruments specify a later effective date of removal, the
occurrence of
1
such later date), or (d) failure of the Owner Trustee to qualify under the
requirements of Section 8.03.
------------
"Governmental Authority" means the United States of America, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Indemnified Person" is defined in Section 11.02.
------------------ -------------
"Indenture" means the Indenture between the Trust and the Indenture
---------
Trustee, which by its terms is identified as being the Indenture referred to
herein, as amended, restated, supplemented or otherwise modified from time to
time.
"Indenture Collateral" is defined in Section 2.11(b).
-------------------- ---------------
"Indenture Trustee" means The Bank of New York as trustee under the
-----------------
Indenture, and each successor trustee under the Indenture.
"Master Trust" means MBNA Master Credit Card Trust II.
------------
"Master Trust Trustee" means The Bank of New York as trustee under the
--------------------
Pooling and Servicing Agreement and each successor trustee under the Pooling and
Servicing Agreement.
"Note" is defined in the Indenture.
----
"Noteholder" is defined in the Indenture.
----------
"Note Rating Agency" is defined in the Indenture.
------------------
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
-------------
corporation, not in its individual capacity but solely in its capacity as owner
trustee hereunder, and each successor trustee under Article VIII, in its
------------
capacity as owner trustee hereunder, and each co-trustee under and to the extent
provided in Section 8.04, in its capacity as owner trustee hereunder.
------------
"Ownership Interest" means the Ownership Interest issued by the Trust
------------------
hereunder with the rights and privileges set forth in Section 10.01.
-------------
"Person" means any legal person, including any individual, corporation,
------
partnership (general or limited), limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity or other entity of similar nature.
"Periodic Filing" means any filing or submission that the Trust is required
---------------
to make with any federal, state or local authority or regulatory agency.
"Permitted Affiliate Transferee" is defined in Section 10.02.
------------------------------ -------------
"Pooling and Servicing Agreement" means the Pooling and Servicing
-------------------------------
Agreement, dated as of August 4, 1994, between MBNA, as Seller and as Servicer,
and The Bank of New York, as
2
trustee, as amended, restated, supplemented or otherwise modified from time to
time, including as supplemented by the Series 2001-__ Supplement.
"Requirements of Law" shall mean, for any Person, the certificate of
-------------------
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Secretary of State" means the Office of the Secretary of State of the
------------------
State of Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Seller Interest" is defined in the Pooling and Servicing Agreement.
---------------
"Series 2001-__ Supplement" means the Series 2001-__ Supplement, relating
-------------------------
to the Pooling and Servicing Agreement, which by its terms is identified as
being the Series 2001-__ Supplement referred to herein, as amended, restated,
supplemented or otherwise modified from time to time.
"Transaction Documents" mean the Indenture, any Indenture Supplement
---------------------
thereto, the Trust Certificate, the Certificate of Trust and other documents
delivered in connection herewith and therewith.
"Transferor" means MBNA America Bank, National Association, a national
----------
banking association, and its successors and assigns.
"Trust" means the trust created by this Agreement and the filing of the
-----
Certificate of Trust with the Secretary of State.
"Trust Certificate" is defined in Section 10.01.
----------------- -------------
"Trust Estate" is defined in Section 2.04.
------------ ------------
"Trustee Bank" means Wilmington Trust Company in its individual capacity,
------------
each bank appointed as successor Owner Trustee under Article VIII in its
------------
individual capacity and each bank appointed as co-trustee under and to the
extent provided in Section 8.04 in its individual capacity.
------------
"UCC" means the Uniform Commercial Code as in effect in the State of
---
Delaware.
Section 1.02 Generic Terms. (a) The terms "hereby," "hereof,"
-------------
"hereto," "herein," "hereunder" and any similar terms will refer to this
Agreement.
(b) Unless otherwise indicated in context, the terms "Section,"
"Exhibit" or "Schedule" will refer to a Section of, or an Exhibit or Schedule
to, this Agreement.
3
(c) Words of the masculine, feminine or neuter gender mean and
include the correlative words of other genders, and words importing the singular
number mean and include the plural number and vice versa.
(d) The terms "include," "including" and similar terms will be
construed as if followed by the phrase "without limitation."
(e) All terms defined in this Agreement will have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or in connection herewith unless otherwise defined therein.
(f) Any agreement, instrument or statute defined or referred to
herein or in any certificate or other document made or delivered pursuant hereto
or in connection herewith means such agreement, instrument or statute as from
time to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
ORGANIZATION;
DECLARATION OF TRUST BY THE OWNER TRUSTEE;
COLLATERAL CERTIFICATE
Section 2.01 Formation of Trust; Name. The Trust is hereby created,
------------------------
to be named "MBNA Credit Card Master Note Trust," under which name the Owner
Trustee or the Beneficiary may conduct any activities and business of the Trust
contemplated hereby, execute contracts and other instruments on behalf of the
Trust and ▇▇▇ and be sued on behalf of the Trust.
Section 2.02 Transfer of Property to Trust; Initial Capital
----------------------------------------------
Contribution of Trust Estate. The Beneficiary hereby sells, assigns, grants and
----------------------------
transfers, over to the Owner Trustee, as of the date hereof, $1.00. The Owner
Trustee hereby acknowledges receipt in trust from the Beneficiary, as of the
date hereof, of the foregoing contribution, which shall constitute the initial
Trust Estate.
Section 2.03 Purposes and Powers; Trust To Operate as a Single
--------------------------------------------------
Purpose Entity. (a) The purpose of the Trust is to engage solely in a program of
--------------
acquiring interests in the Master Trust and issuing Notes under the Indenture
and related activities. Without limiting the generality of the foregoing, the
Trust may and shall have the power and authority to:
(i) acquire from MBNA the Collateral Certificate, and other
certificates of beneficial interest, of the Master Trust;
(ii) from time to time, grant a security interest in the Collateral
Certificate, or other beneficial interests in the Master Trust, including the
pledge of any portion of the Investor Interest of the Collateral Certificate,
and grant a security interest in accounts established for the benefit of
indebtedness of the Trust under the Indenture;
4
(iii) from time to time authorize and approve the issuance of Notes
pursuant to the Indenture without limitation to aggregate amounts and, in
connection therewith, determine the terms and provisions of such Notes and of
the issuance and sale thereof, including the following:
(A) determining the principal amount of the Notes;
(B) determining the maturity date of the Notes;
(C) determining the rate of interest, if any, to be paid on
the Notes;
(D) determining the price or prices at which such Notes
will be sold by the Trust;
(E) determining the provisions, if any, for the redemption
of such Notes;
(F) determining the form, terms and provisions of the
indentures, fiscal agency agreements or other instruments under which the
Notes may be issued and the banks or trust companies to act as trustees,
fiscal agents and paying agents thereunder;
(G) preparing and filing all documents necessary or
appropriate in connection with the registration of the Notes under the
Securities Act of 1933, the qualification of indentures under the Trust
Indenture Act of 1939 and the qualification under any other applicable
federal, foreign, state, local or other governmental requirements;
(H) preparing any prospectus, offering memorandum, private
placement memorandum or other descriptive material relating to the issuance
of the Notes;
(I) listing the Notes on any United States or non-United
States securities exchange;
(J) entering into one or more interest rate or currency
swaps, caps, collars, guaranteed investment contracts or other derivative
agreements with counterparties (which may include, without limitation, MBNA
or any of its affiliates) to manage interest rate or currency risk relating
to the Notes;
(K) appointing a paying agent or agents for purposes of
payments on the Notes; and
(L) arranging for the underwriting, subscription, purchase
or placement of the Notes and selecting underwriters, managers and
purchasers or agents for that purpose;
5
(iv) from time to time receive payments and proceeds with respect to
the Collateral Certificate and other certificates of beneficial interest in the
Master Trust and the Indenture and either invest or distribute those payments
and proceeds;
(v) from time to time make deposits to and withdrawals from
accounts established under the Indenture;
(vi) from time to time make and receive payments pursuant to
derivative agreements;
(vii) from time to time make payments on the Notes;
(viii) from time to time acquire additional collateral from MBNA
America Bank, National Association or any special purpose vehicle established by
MBNA America Bank, National Association; and
(ix) from time to time perform such obligations and exercise and
enforce such rights and pursue such remedies as may be appropriate by virtue of
the Trust being party to any of the agreements contemplated in clauses (i)
through (viii) above.
In connection with any of the foregoing, the Trust may (x) execute and deliver,
and/or accept, such instruments, agreements, certificates, Uniform Commercial
Code financing statements and other documents, and create such security
interests, as may be necessary or desirable in connection therewith, and (y)
subject to the terms of this Agreement, take such other action as may be
necessary or incidental to the foregoing.
(b) The Owner Trustee and the Beneficiary, on behalf of the Trust,
are hereby authorized and shall have the power to execute and deliver from time
to time loan agreements, underwriting agreements, selling agent agreements,
purchase agreements, private placement agreements, swap and other derivative
agreements, including performance agreements, indentures, indenture supplements,
notes, security agreements, and other agreements and instruments as are
consistent with the purposes of the Trust. Without limiting the generality of
the foregoing, the Beneficiary and the Owner Trustee, on behalf of the Trust,
are specifically authorized to execute and deliver without any further act, vote
or approval, and notwithstanding any other provision of this Agreement, the
Delaware Business Trust Act or other applicable law, rule or regulation,
agreements, documents or securities relating to the purposes of the Trust
including:
(i) the Indenture, each Indenture Supplement and each Issuer's
Certificate (as defined in the Indenture);
(ii) the Notes;
(iii) each interest rate or currency swap, cap, collar, guaranteed
investment contract or other derivative agreement, including agreements related
thereto, between the Trust and a counterparty (which may include, without
limitation, MBNA or any of its affiliates) to manage interest rate or currency
risk relating to the Notes; and
6
(iv) any other document necessary or desirable in connection with
the fulfillment of the purposes of the Trust described in, and pursuant to,
Section 2.03(a).
---------------
The authorization set forth in the preceding sentence will not be deemed a
restriction on the power and authority of the Beneficiary and the Owner Trustee,
on behalf of the Trust, to execute and deliver other agreements, documents
instruments and securities or to take other actions on behalf of the Trust in
connection with the fulfillment of the purposes of the Trust described in, and
pursuant to, Section 2.03(a).
---------------
(c) The Owner Trustee and the Beneficiary will at all times
maintain the books, records and accounts of the Trust separate and apart from
those of any other Person, and will cause the Trust to hold itself out as being
a Person separate and apart from any other Person.
(d) The Trust will not engage in any business or own any assets
unrelated to the purposes of the Trust.
Section 2.04. Appointment of Owner Trustee. The Beneficiary hereby
----------------------------
appoints Wilmington Trust Company as Owner Trustee of the Trust effective as of
the date hereof, to have all the rights, powers and duties set forth herein and
in the Delaware Business Trust Act.
Section 2.05. Declaration of Trust. The Owner Trustee hereby declares
--------------------
that it will hold the initial Trust Estate, the Collateral Certificate and the
other documents and assets described in Section 2.03, together with any
------------
payments, proceeds or income of any kind from such documents or assets or any
other source and any other property held under this Agreement (collectively, the
"Trust Estate"), upon the trust set forth herein and for the sole use and
------------
benefit of the Beneficiary. It is the intention of the parties hereto that the
Trust constitute a business trust under the Delaware Business Trust Act and that
this Agreement constitute the governing instrument of such business trust. The
parties hereto agree that they will take no action contrary to the foregoing
intention. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and, to the extent not inconsistent
herewith, in the Delaware Business Trust Act with respect to accomplishing the
purposes of the Trust.
Section 2.06. Title to Trust Estate. Title to all of the Trust Estate
---------------------
will be vested in the Trust as a separate legal entity until this Agreement
terminates pursuant to Article VII; provided, however, that if the laws of any
----------- -------- -------
jurisdiction require that title to any part of the Trust Estate be vested in the
trustees of a trust, then title to that part of the Trust Estate will be deemed
to be vested in the Owner Trustee or any co-trustee or separate trustee, as the
case may be, appointed pursuant to Article VIII.
------------
Section 2.07. Nature of Interest in the Trust Estate. The Beneficiary
--------------------------------------
will not have any legal title to or right to possession of any part of the Trust
Estate.
Section 2.08. Creation of Trust; Principal Office of Owner Trustee.
----------------------------------------------------
The Owner Trustee will file a certificate of trust relating to the Trust with
the Secretary of State and maintain the Owner Trustee's principal office in the
State of Delaware. However, nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
will be received by the Trust only in Delaware or New York, and payments
7
will be made by the Trust only from Delaware or New York. The Trust will be
located and administered in the State of Delaware.
Section 2.09. Tax Matters. The parties hereto intend that, for income
-----------
and franchise tax purposes, the Trust will be treated as a security device and
disregarded as an entity and its assets shall be treated as owned in whole by
the Beneficiary, and the parties hereto will file all their tax returns in a
manner consistent with that intent unless otherwise required by a taxing
authority. Except as otherwise expressly provided herein, any tax elections
required or permitted to be made by the Trust under the Code or otherwise will
be made by the Beneficiary. The Trust will not elect to be treated as a
corporation for any tax purpose.
Section 2.10. Fiscal Year. The fiscal year of the Trust will end on
-----------
the last day of December of each year.
Section 2.11. Transfer of Collateral Certificate.
----------------------------------
(a) In consideration of the Trust's delivery to or upon the order
of the Transferor of the net proceeds of the initial sale of the Notes, the
Transferor does hereby transfer, assign, set over, pledge and otherwise convey
to the Trust, without recourse (subject to the obligations herein) all right,
title and interest of the Transferor in and to the Collateral Certificate and
the proceeds thereof. This Agreement also shall be deemed to be and hereby is a
security agreement within the meaning of the UCC, and the conveyance by the
Transferor provided for in this Agreement shall be deemed to be and hereby is a
grant by the Transferor to the Trust of a security interest in and to all of the
Transferor's right, title and interest, whether now owned or hereafter acquired,
in, to and under all accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters of
credit, advices of credit and investment property consisting of, arising from,
or relating to the Collateral Certificate and the proceeds thereof, to secure
the rights of the Trust under this Agreement and the obligations of the
Transferor hereunder. The Transferor and the Trust shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that the security interest in the Collateral Certificate created hereunder will
be a perfected security interest of first priority under applicable law and will
be maintained as such throughout the term of this Agreement.
(b) To the extent that the Transferor retains any interest in the
Collateral Certificate, the Transferor hereby grants to the Indenture Trustee
for the benefit of the holders of the Notes a security interest in and to all of
the Transferor's right, title, and interest, whether now owned or hereafter
acquired, in, to, and under all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, and investment property consisting of,
arising from, or relating to the Collateral Certificate and the proceeds thereof
(collectively, the "Indenture Collateral"), to secure performance of all of the
obligations of the Transferor under the Pooling and Servicing Agreement, the
Series 2001-[.] Supplement and the Transaction Documents. With respect to the
Indenture Collateral, the Indenture Trustee shall have all of the rights it has
under the Transaction Documents. The Indenture Trustee shall have all of the
rights of a secured creditor under the UCC in New York and the UCC in Delaware.
8
Section 2.12. Closing. The transfer, assignment, set-over, pledge and
-------
conveyance of the Collateral Certificate and the issuance of the Notes shall
take place at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Closing Date (as defined in the Series
2001-__ Supplement), simultaneously with the closing of the transactions
contemplated by the Pooling and Servicing Agreement, the Series 2001-[.]
Supplement and the other Transaction Documents.
Section 2.13. Books and Records. In connection with the transfer,
-----------------
assignment, set-over, pledge and conveyance set forth in Section 2.11, the
------------
Transferor agrees to record and file, at its own expense, any financing
statements (and continuation statements with respect to such financing
statements when applicable) required to be filed with respect to the Collateral
Certificate assigned by the Transferor hereunder, meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary under
the applicable UCC to perfect the transfer, assignment, set-over, pledge and
conveyance of the Collateral Certificate to the Issuer, and to deliver a file-
stamped copy of such financing statements or other evidence of such filings to
the Issuer on or prior to the Closing Date (excluding such continuation and
similar statements, which shall be delivered promptly after filing).
In connection with the transfer, assignment, set-over, pledge and
conveyance hereunder, the Transferor further agrees, at its own expense, on or
prior to the Closing Date to cause the Master Trust Trustee to register the
Trust as the registered owner of the Collateral Certificate.
Section 2.14. Series 2001-__Certificateholder. The Indenture Trustee
-------------------------------
shall be the Series 2001-__ Certificateholder for all purposes under the Pooling
and Servicing Agreement and the Series 2001-[.] Supplement. To the extent the
Collateral Certificate is sold or otherwise transferred to a third-party in
connection with the sale or liquidation of the Trust Estate pursuant to the
provisions of the Indenture, such transferee shall be the Series 2001-__
Certificateholder for all purposes under the Pooling and Servicing Agreement.
Section 2.15. Representations and Warranties of the Transferor. The
------------------------------------------------
Transferor makes the following representations and warranties as to the
Collateral Certificate on which the Issuer is deemed to have relied in acquiring
the Collateral Certificate. Such representations and warranties speak as of the
execution and delivery of this Agreement and as of each Transfer Date, but shall
survive the transfer and assignment of the Collateral Certificate to the Issuer
and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Title. It is the intention of the Transferor that the transfer
-----
and assignment herein contemplated constitute either (i) a sale of the
Collateral Certificate, (ii) a grant of a perfected security interest therein
from the Transferor to the Issuer or (iii) a grant of a perfected security
interest therein from the Transferor to the Indenture Trustee. The Collateral
Certificate has not been sold, transferred, assigned or pledged by the
Transferor to any Person other than pursuant to this Agreement or the Indenture.
Immediately prior to the transfer and assignment herein contemplated, the
Transferor had good and marketable title to the Collateral Certificate, free and
clear of all liens and rights of others and, immediately upon the transfer
thereof, the Issuer shall have good and marketable title to the Collateral
Certificate, free and clear of all liens of rights of others or a first priority
perfected security interest therein; and the transfer has been
9
perfected, by the filing of appropriate financing statements and the taking of
such other action pursuant to the UCC, under the UCC. The Transferor has no
knowledge of any current statutory or other non-consentual liens to which the
Collateral Certificate is subject.
(b) All Actions Taken. All actions necessary under the applicable
-----------------
UCC in any jurisdiction to be taken (i) to give the Issuer a first priority
perfected security interest or ownership interest in the Collateral Certificate,
and (ii) to give the Indenture Trustee a first priority perfected security
interest in the Collateral Certificate (including, without limitation, UCC
filings with the Delaware Secretary of State), in each case subject to any
statutory or other non-consentual liens with respect to the Collateral
Certificate, have been taken. The Transferor has no knowledge of any current
statutory or other non-consentual liens which the Collateral Certificate is
subject.
(c) No Consents Required. All approvals, authorizations, consents,
--------------------
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by the Transferor of this
Agreement or any other Transaction Document, the performance by the Transferor
of the transactions contemplated by this Agreement or any other Transaction
Document and the fulfillment by the Transferor of the terms hereof or thereof,
have been obtained or have been completed and are in full force and effect
(other than approvals, authorizations, consents, orders and other actions which
if not obtained or completed or in full force or effect would not have a
material adverse effect on the Transferor or the Issuer or upon the
collectibility of the Collateral Certificate or upon the ability of the
Transferor to perform its obligations under this Agreement).
(d) Transfers Comply. Each of (i) the transfer of the Collateral
----------------
Certificate by the Transferor to the Issuer pursuant to the terms of this
Agreement, (ii) the pledge of the Collateral Certificate by the Issuer to the
Indenture Trustee pursuant to the terms of the Indenture and (iii) the pledge of
the Collateral Certificate by the Transferor to the Indenture Trustee pursuant
to the terms of this Agreement, comply with the provisions of the Pooling and
Servicing Agreement relating to transfers of the Collateral Certificate.
Section 2.16. Protection of Title to Collateral Certificate.
---------------------------------------------
(a) The Transferor shall take all actions necessary, and the Issuer
shall cooperate with the Transferor, if applicable, to perfect, and maintain
perfection of, the interests of the Issuer in the Collateral Certificate. The
Transferor shall execute and file and cause to be executed and filed such
financing statements and continuation statements, all in such manner and in such
places as may be required by law fully to perfect, maintain, and protect the
interest of the Issuer in the Collateral Certificate and in the proceeds thereof
and the interest of the Indenture Trustee in the Trust Estate and the proceeds
thereof. The Transferor shall deliver (or cause to be delivered) to the Owner
Trustee and the Indenture Trustee file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) The Transferor shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing statement
or continuation statement filed in accordance with paragraph (a) above or
otherwise seriously misleading within the meaning of the UCC (regardless of
whether such a filing was ever made), unless it shall have
10
given the Owner Trustee and the Indenture Trustee at least five days' prior
written notice thereof and, if applicable, shall have timely filed appropriate
amendments to any and all previously filed financing statements or continuation
statements (so that the interest of the Issuer or the Indenture Trustee is not
adversely affected).
(c) The Transferor shall have an obligation to give the Owner
Trustee and the Indenture Trustee at least 60 days' prior written notice of any
relocation of its chief executive office or other change in location if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement (regardless of whether such a filing
was ever made) and shall promptly, if applicable, file any such amendment.
(d) The Owner Trustee shall permit the Indenture Trustee and its
agents at any time following reasonable notice and during normal business hours
to inspect, audit and make copies of and abstracts from the Owner Trustee's
records regarding the Collateral Certificate.
Section 2.17. Assignment to Indenture Trustee. The Transferor hereby
-------------------------------
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Collateral Certificate and the other property
constituting the Trust Estate and/or the assignment of any or all of the
Issuer's rights and obligations hereunder to the Indenture Trustee.
Section 2.18. Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, Transferor. Any Person (a) into which the Transferor may be
--------------------------
merged or consolidated, (b) which may result from any merger or consolidation to
which the Transferor shall be a party or (c) which may succeed to the properties
and assets of the Transferor substantially as a whole, which Person in any of
the foregoing cases executes an agreement of assumption to perform every
obligation of the Transferor under this Agreement, shall be the successor to the
Transferor hereunder without the execution or filing of any other document or
any further act by any of the parties to this Agreement; provided, however, that
(i) the Transferor shall have delivered to the Owner Trustee and the Indenture
Trustee an Officers' Certificate (as defined in the Indenture) and an Opinion of
Counsel (as defined in the Indenture) each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
-------
2.19 and that all conditions precedent provided for in this Agreement relating
----
to such transaction have been complied with, (ii) written confirmation from the
Note Rating Agency (as defined in the Indenture) that such transaction will not
result in any Note Rating Agency reducing or withdrawing its then existing
rating of the Notes and (iii) the Transferor shall have delivered to the Owner
Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating that,
in the opinion of such counsel, all actions necessary to perfect the interests
of the Owner Trustee and the Indenture Trustee have been taken, including that
all financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Owner Trustee and Indenture Trustee, respectively, in the
Collateral Certificate and reciting the details of such filings, or (B) stating
that, in the opinion of such counsel, no such action shall be necessary to
preserve and protect such interests. Following the effectiveness of the
succession provided for in this Section 2.18, the predecessor Transferor shall
------------
be released from any obligations and liabilities provided for under the
Transaction
11
Documents other than any obligations or liabilities incurred by such predecessor
Transferor prior to the effectiveness of such succession.
Section 2.19. Limitation on Liability of Transferor and Others. The
------------------------------------------------
Transferor and any director or officer or employee or agent of the Transferor
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Transferor, in its capacity as such, shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its obligations under this Agreement, and that in its opinion
may involve it in any expense or liability.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF THE BENEFICIARY
Section 3.01. Representations and Warranties of the Beneficiary. The
-------------------------------------------------
Beneficiary hereby represents and warrants to the Owner Trustee as of the date
of this Agreement and as of the date of each increase in the Investor Interest
of the Collateral Certificate that:
(a) The Beneficiary is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States and has full corporate power, authority and legal right to own its
properties and conduct its credit card business as such properties are presently
owned and such business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) The Beneficiary is duly qualified to do business and is in good
standing (or is exempt from such requirement) in any state required in order to
conduct its business, and has obtained all necessary licenses and approvals with
respect to the Beneficiary, in each jurisdiction in which failure to so qualify
or to obtain such licenses and approvals would have a material adverse effect on
the interests of the Noteholders hereunder or under the Indenture; provided,
--------
however, that no representation or warranty is made with respect to any
-------
qualifications, licenses or approvals which the Owner Trustee or the Indenture
Trustee has or may be required at any time to obtain, if any, in connection with
the transactions contemplated hereby or by any other Transaction Document to
which the Owner Trustee or the Indenture Trustee, as the case may be, is a
party.
(c) The execution and delivery of this Agreement and the
consummation of the transactions provided for in this Agreement and in the other
Transaction Documents to which the Beneficiary is a party have been duly
authorized by the Beneficiary by all necessary corporate action on its part and
each of this Agreement and the other Transaction Documents to which the
Beneficiary is a party will remain, from the time of its execution, an official
record of the Beneficiary; the Beneficiary has the power and authority to assign
the property to be assigned to and deposited with the Trust.
12
(d) The execution and delivery of this Agreement, the performance
of the transactions contemplated by this Agreement and the fulfillment of the
terms hereof will not conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which the Beneficiary is a party or by
which it or any of its properties are bound (other than violations of such
indentures, contracts, agreements, mortgages, deeds of trust or other
instruments which, individually or in the aggregate, would not have a material
adverse effect on the Beneficiary's ability to perform its obligation under this
Agreement).
(e) The execution and delivery of this Agreement, the performance
of the transactions contemplated by this Agreement and the fulfillment of the
terms hereof will not conflict with or violate any Requirements of Law
applicable to the Beneficiary.
(f) There are no proceedings or investigations pending or
threatened against the Beneficiary before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having
jurisdiction over the Beneficiary (i) asserting the invalidity of this Agreement
or any of the Transaction Documents, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any of the Transaction
Documents, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Beneficiary, would materially and adversely affect the
performance by the Beneficiary of its obligations under this Agreement or the
Transaction Documents, or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Agreement
or the Transaction Documents.
ARTICLE IV
DISTRIBUTIONS OF FUNDS
Section 4.01. Distribution of Funds. All funds received by the Trust
---------------------
to the extent not encumbered by the Indenture and otherwise available for
distribution (or if encumbered by the Indenture, which have been released by the
relevant parties benefiting from such encumbrance) will be distributed to the
Beneficiary.
Section 4.02. Payments from Trust Estate Only. All payments to be
-------------------------------
made by the Owner Trustee on behalf of the Trust under this Agreement will be
made only from the income and the capital proceeds derived from the Trust Estate
and only to the extent that the Owner Trustee on behalf of the Trust will have
received income or capital proceeds from the Trust Estate. The Beneficiary
agrees that it will look solely to the income and capital proceeds derived from
the Trust Estate (to the extent available for payment as herein provided) and
that, except as specifically provided herein, the Owner Trustee will not be
subject to any liability in its individual capacity under this Agreement to the
Beneficiary or to any other Person.
Section 4.03. Method of Payment. All amounts payable to the
-----------------
Beneficiary pursuant to this Agreement will be paid by the Owner Trustee on
behalf of the Trust to the Beneficiary or a nominee therefor in such manner as
the Beneficiary may from time to time designate in written instructions to the
Owner Trustee. All funds received by the Owner Trustee
13
on behalf of the Trust not later than 2:00 p.m. (New York City time) on a
Business Day will be applied by the Owner Trustee on that Business Day. Funds
received after that time will be applied on the next following Business Day.
Section 4.04. Establishment of Account. The Beneficiary hereby
------------------------
authorizes the Owner Trustee to establish and maintain an account on behalf of
the Trust into which all funds received by the Owner Trustee on behalf of the
Trust shall be deposited. Such account shall be designated the Beneficiary Trust
Account.
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
Section 5.01. Action Upon Instructions. (a) It is the intention of
------------------------
the Beneficiary that the powers and duties of the Owner Trustee are to be purely
ministerial only, and that the Beneficiary will have the power to direct the
Owner Trustee as to all nonministerial matters concerning the administration of
the Trust (to the extent such matters are within the powers of the Beneficiary).
Accordingly, subject to subsections 5.01(b), 5.01(c), and Article XII, the
------------------- ------- -----------
Beneficiary will direct the Owner Trustee in the management of the Trust and the
Trust Estate. Such direction shall be exercised at any time only by written
instruction of the Beneficiary delivered to the Owner Trustee pursuant to this
Article V.
---------
(b) The Owner Trustee will take such action or actions as may be
specified in any instructions delivered in accordance with subsection 5.01(a);
------------------
provided, however, that the Owner Trustee will not be required to take any such
-------- -------
action if the Trustee Bank will have been advised by counsel that such action
(i) is contrary to the terms hereof or of any document contemplated hereby to
which the Trust or the Owner Trustee is a party or is otherwise contrary to law,
or (ii) is reasonably likely to result in liability on the part of the Trustee
Bank, unless the Trustee Bank will have received additional indemnification or
security satisfactory to the Trustee Bank from the Beneficiary against all
costs, expenses and liabilities arising from the Owner Trustee's taking such
action.
(c) The Beneficiary will not direct the Owner Trustee to take or
refrain from taking any action contrary to this Agreement, nor will the Owner
Trustee be obligated to follow any such direction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Transaction Document, or
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action to be adopted, the Owner Trustee will promptly give notice to
the Beneficiary requesting written instructions as to the course of action to be
adopted and, to the extent the Owner Trustee acts in good faith in accordance
with such written instructions received from the Beneficiary, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee will not have received appropriate written instructions within 30 days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with
14
this Agreement, as it deems to be in the best interests of the Beneficiary, and
will have no liability to any Person for such action or inaction.
(e) The Owner Trustee will, subject to this Section 5.01, act in
------------
accordance with the instructions given to it by the Beneficiary pursuant to
Section 5.01(b), and to the extent the Owner Trustee acts in good faith in
---------------
accordance with such instructions, the Owner Trustee will not be liable on
account of such action to any Person.
Section 5.02. No Duty to Act Under Certain Circumstances.
------------------------------------------
Notwithstanding anything contained herein to the contrary, neither the Trustee
Bank nor the Owner Trustee, except a Trustee Bank authorized as co-trustee, will
be required to take any action in any jurisdiction other than in the State of
Delaware if the taking of such action would (i) require the consent or approval
or authorization or order of or the giving of notice to, or the registration
with or taking of any action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or governmental charge under the laws of any jurisdiction
or any political subdivisions thereof in existence on the date hereof other than
the State of Delaware becoming payable by the Trustee Bank; or (iii) subject the
Trustee Bank to personal jurisdiction in any jurisdiction other than the State
of Delaware for causes of action arising from acts unrelated to the consummation
of the transactions by the Trustee Bank or the Owner Trustee, as the case may
be, contemplated hereby. The Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be at the expense of the Beneficiary) to determine
whether any action required to be taken pursuant to the Agreement results in the
consequences described in clauses (i), (ii) and (iii) of the preceding sentence.
In the event that said counsel advises the Owner Trustee that such action will
result in such consequences, the Owner Trustee may, or if instructed to do so by
the Beneficiary, shall, appoint an additional trustee pursuant to Section 8.04
------------
hereby to proceed with such action.
Section 5.03. No Duties Except Under Specified Agreements or
----------------------------------------------
Instructions.
------------
(a) The Owner Trustee will not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record, insure,
inspect, sell, dispose of, create, maintain or perfect any security interest or
title in or otherwise deal with any part of the Trust Estate, prepare, file or
record any document or report (including any tax related filing for any holder
of Notes), or to otherwise take or refrain from taking any action under, or in
connection with, this Agreement, the Trust or any document contemplated hereby
to which the Trust or the Owner Trustee is a party, except as expressly provided
by the terms of this Agreement or in written instructions from the Beneficiary
received pursuant to Section 5.01; and no implied duties or obligations will be
------------
read into this Agreement against the Owner Trustee. Unless otherwise directed by
the Beneficiary in accordance with Section 5.01(a), the Owner Trustee shall have
---------------
no obligation or duty to take any action the Trust is authorized and empowered
to take pursuant to Section 2.03(a). The Owner Trustee nevertheless agrees that
---------------
it will, in its individual capacity and at its own cost and expense, promptly
take all action as may be necessary to discharge any lien, pledge, security
interest or other encumbrance on any part of the Trust Estate which results from
actions by or claims against the Trustee Bank not related to the ownership of
any part of the Trust Estate.
15
(b) The Owner Trustee agrees that it will not manage, control, use,
lease, sell, dispose of or otherwise deal with any part of the Trust Estate
except (i) in accordance with the powers granted to, or the authority conferred
upon, the Owner Trustee pursuant to this Trust Agreement, or (ii) in accordance
with the express terms hereof or with written instructions from the Beneficiary
pursuant to Section 5.01. Unless otherwise directed by the Beneficiary in
------------
accordance with Section 5.01(a), the Owner Trustee shall not be required to
---------------
perform any obligations or duties of the Trust under the Indenture, which duties
and obligations shall be the sole responsibility of the Beneficiary.
Section 5.04. Trust Operation. The operations of the Trust will be
---------------
conducted in accordance with the following standards:
(a) the Trust will act solely in its own name through the Owner
Trustee or the Beneficiary;
(b) the Trust will not incur any indebtedness for money borrowed or
incur any obligations except in connection with the purposes set forth in
Section 2.03 of this Agreement;
------------
(c) the Trust's funds and assets will at all times be maintained
separately from those of the Beneficiary and its affiliates;
(d) the Trust will take all reasonable steps to continue its
identity as a separate legal entity and to make it apparent to third persons
that it is an entity with assets and liability distinct from those of the
Beneficiary, the Beneficiary's affiliates or any other third person, and will
use stationery and other business forms of the Owner Trustee or the Trust and
not that of the Beneficiary or any of its affiliates, and will use its best
efforts to avoid the appearance (i) of conducting business on behalf of the
Beneficiary or any affiliates thereof, or (ii) that the assets of the Trust are
available to pay the creditors of the Beneficiary or any affiliates thereof;
(e) the Trust will not hold itself out as being liable for the
debts of the Beneficiary or any affiliates thereof;
(f) the Trust will not engage in any transaction with the
Beneficiary or any affiliates thereof, except as required, or specifically
permitted, by this Agreement or unless such transaction is otherwise on terms
neither more favorable nor less favorable than the terms and conditions
available at the time to the Trust for comparable transactions with other
Persons; and
(g) the Trust will not enter into any voluntary bankruptcy or
insolvency proceeding without a finding by the Owner Trustee that the Trust's
liabilities exceeds its assets or that the Trust is unable to pay its debts in a
timely manner as they become due.
Section 5.05. Execution of Documents. The Owner Trustee will, at the
----------------------
written direction of the Beneficiary, execute and deliver on behalf of the Trust
such instruments, agreements and certificates contemplated hereby to which the
Trust is a party (such direction to be conclusively evidenced by the Owner
Trustee's execution and delivery of such documents to, and acceptance by, the
Beneficiary or its counsel).
16
Section 5.06. Nonpetition Covenants. Notwithstanding any prior
---------------------
termination of the Trust or this Agreement, each of the Owner Trustee and the
Beneficiary covenants and agrees that it shall not at any time with respect to
the Trust or the Master Trust acquiesce, petition or otherwise invoke or cause
the Trust or the Master Trust to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Trust
or the Master Trust under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Trust or the Master
Trust or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust or the Master Trust; provided, however,
-------- -------
that this Section 5.06 shall not preclude any remedy described in Article VII of
------------ -----------
the Indenture.
ARTICLE VI
CONCERNING THE TRUSTEE BANK
Section 6.01. Acceptance of Trust and Duties. The Trustee Bank
------------------------------
accepts the trust hereby created and agrees to perform the same but only upon
the terms of this Agreement. The Trustee Bank also agrees to disburse all moneys
actually received by it constituting part of the Trust Estate in accordance with
the terms of this Agreement. The Trustee Bank will not be answerable or
accountable under any circumstances in its individual capacity, except (i) for
its own willful misconduct, bad faith or negligence, (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.07, (iii)
------------
for the failure by the Owner Trustee to perform obligations expressly undertaken
by it in the last sentence of subsection 5.03(a), or (iv) for taxes, fees or
------------------
other charges on, based on or measured by, any fees, commissions or other
compensation earned by the Trustee Bank for acting as trustee hereunder. In
particular, but not by way of limitation:
(a) The Trustee Bank will not be personally liable for any error of
judgment made in good faith by an authorized officer of the Owner Trustee so
long as the same will not constitute negligence, bad faith or willful
misconduct;
(b) The Trustee Bank will not be personally liable with respect to
any action taken or omitted to be taken by the Owner Trustee in good faith in
accordance with the instructions of the Beneficiary;
(c) No provision of this Agreement or any Transaction Document will
require the Trustee Bank to expend or risk its personal funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder, if the Trustee Bank will have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it, including such advances as the Trustee
Bank may reasonably request;
(d) Under no circumstance will the Trustee Bank be personally
liable for the accuracy or performance of any representation, warranty,
covenant, agreement or other obligation, including any indebtedness, of the
Trust;
17
(e) The Trustee Bank will not be personally responsible or liable
for or in respect of the validity or sufficiency of this Agreement or for the
due execution hereof by the Beneficiary or with respect to any agreement entered
into by the Trust;
(f) Under no circumstances will the Trustee Bank be responsible or
liable for the action or inaction of the Beneficiary, nor will the Trustee Bank
be responsible for monitoring the performance of the Beneficiary's duties
hereunder or of any other Person acting for or on behalf of the Trust;
(g) In no event shall the Trustee Bank be personally liable for
special, consequential or punitive damages unless such damages result from its
willful misconduct or gross negligence, for the acts or omissions of its
nominees, correspondents, clearing agencies or securities depositories, for the
acts or omissions of brokers or dealers, and for any losses due to forces beyond
the control of the Trustee Bank, including strikes, work stoppages, acts of war
or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts
of God and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services. The Trustee Bank shall have no
responsibility for the accuracy of any information provided to the Beneficiary
or any other Person that has been obtained from, or provided to the Trustee Bank
by, any other Person;
(h) the Trustee Bank shall not be liable for the default or
misconduct of the Indenture Trustee under any of the Transaction Documents or
otherwise, and the Trustee Bank shall have no obligation or liability to perform
the obligations of the Trust under this Agreement or the Transaction Documents,
in each case that are required to be performed by the Indenture Trustee under
the Indenture; and
(i) the Trustee Bank shall be under no obligation to exercise any
of the rights or powers vested in it by this agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation to
this Agreement or any Transaction Document, at the request, order or direction
of the Beneficiary, unless the Beneficiary has offered to the Trustee Bank
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Trustee Bank therein or thereby. The
right of the Trustee Bank to perform any discretionary act enumerated in this
Agreement or in any Transaction Document shall not be construed as a duty, and
the Trustee Bank shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act.
Section 6.02. Furnishing of Documents. The Owner Trustee will furnish
-----------------------
to the Beneficiary, within a reasonable time under the circumstances after
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee with respect to the Trust or the Trust Estate.
Section 6.03. Representations and Warranties as to the Trust Estate.
-----------------------------------------------------
The Owner Trustee makes no representation or warranty as to, and shall not be
liable for, the title, value, condition, design, operation, merchantability or
fitness for use of the Trust Estate (or any part thereof) or any other
representation or warranty, express or implied, whatsoever with respect to the
Trust Estate (or any part thereof) except that the Owner Trustee, in its
individual capacity,
18
hereby represents and warrants to the Beneficiary that it will comply with the
last sentence of subsection 5.03(a).
------------------
Section 6.04. Signature of Returns. At the written direction of the
--------------------
Beneficiary, the Owner Trustee will sign on behalf of the Trust any Periodic
Filings of the Trust or other documents relating to the Trust prepared by, or on
behalf of, the Beneficiary.
Section 6.05. Reliance; Advice of Counsel. The Owner Trustee will
---------------------------
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any entity as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Owner
Trustee may for all purposes rely on an officer's certificate of the relevant
party, as to such fact or matter, and such officer's certificate will constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon. In the administration of the Trust, the
Owner Trustee may, at the expense of the Trust (i) execute the trust or any of
the powers hereof and perform its powers and duties hereunder directly or
through agents or attorneys, and the Owner Trustee will not be liable for the
default or misconduct of any agent or attorney selected by the Owner Trustee
with reasonable care; and (ii) consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it, and the
Owner Trustee will not be liable for anything done, suffered or omitted in good
faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons.
Section 6.06. Not Acting in Individual Capacity. Except as provided
---------------------------------
in this Article VI, in accepting the trust hereby created the Trustee Bank acts
----------
solely as Owner Trustee hereunder and not in its individual capacity; and all
Persons having any claim against the Trust or the Owner Trustee, whether by
reason of the transactions contemplated by this Agreement or otherwise, will
look only to the Trust Estate (or a part thereof, as the case may be) for
payment or satisfaction thereof, except as specifically provided in this Article
-------
VI.
--
Section 6.07. Representations and Warranties. The Trustee Bank, other
------------------------------
than a Trustee Bank appointed as a co-trustee, hereby represents and warrants to
the Beneficiary that:
(a) The Trustee Bank is a Delaware banking corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware. The Trustee Bank has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) The Trustee Bank has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
19
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by the Trustee Bank with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment or
order binding on the Trustee Bank, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which the Trustee Bank is a party or by which any of the Trustee
Bank's properties may be bound.
(d) The Trustee Bank complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the qualification of a
trustee of a Delaware business trust.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
Section 7.01. Termination of Trust Agreement.
------------------------------
(a) The Trust shall dissolve, upon the final distribution by the
Owner Trustee of all moneys or other property or proceeds of the Trust Estate in
accordance with the Delaware Business Trust Act and the terms of the Indenture.
Any money or other property held as part of the Trust Estate following such
distribution shall be distributed to the Beneficiary. The bankruptcy,
liquidation, dissolution, termination, death or incapacity of the Beneficiary
shall not (x) operate to terminate this Agreement or the Trust, or (y) entitle
the Beneficiary's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Trust Estate or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 7.01(a), neither the
------------------
Beneficiary nor the Beneficiary shall be entitled to revoke or terminate the
Trust.
(c) Upon the winding up of the Trust in accordance with the
Delaware Business Trust Act, the Owner Trustee shall cause the Certificate of
Trust to be canceled by filing a certificate of cancellation with the Secretary
of State in accordance with the provisions of Section 3810 of the Delaware
Business Trust Act and thereupon the Trust and this Agreement (other than
Article XI) shall terminate.
ARTICLE VIII
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES
AND SEPARATE OWNER TRUSTEES
Section 8.01. Resignation and Removal of the Owner Trustee;
--------------------------------------------
Appointment of Successors. Upon the occurrence of a Disqualification Event with
-------------------------
respect to the Owner Trustee, the Beneficiary may appoint a successor Owner
Trustee by an instrument signed by the Beneficiary. If a successor Owner Trustee
has not been appointed within 30 days after the giving of written notice of such
resignation or the delivery of the written instrument with respect to such
removal, the Owner Trustee or the Beneficiary may apply to any court of
competent
20
jurisdiction to appoint a successor Owner Trustee to act until such time, if
any, as a successor Owner Trustee has been appointed as above provided. Any
successor Owner Trustee so appointed by such court will immediately and without
further act be superseded by any successor Owner Trustee appointed as above
provided within one year from the date of the appointment by such court. The
Owner Trustee may resign at any time without cause by giving at least 30 days'
prior written notice to the Beneficiary. In addition, the Beneficiary may at any
time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee. No such removal or resignation shall become
effective until a successor Owner Trustee, however appointed, becomes vested as
Owner Trustee hereunder pursuant to Section 8.02. The Beneficiary will notify
------------
the Note Rating Agencies promptly after the resignation or removal of the Owner
Trustee and promptly after the appointment of a successor Owner Trustee.
Section 8.02. Transfer Procedures. Any successor Owner Trustee,
-------------------
however appointed, will execute and deliver to the predecessor Owner Trustee an
instrument accepting such appointment, and such other documents of transfer as
may be necessary, and thereupon such successor Owner Trustee, without further
act, will become vested with all the estates, properties, rights, powers, duties
and trust of the predecessor Owner Trustee in the trust hereunder with like
effect as if originally named an Owner Trustee herein and the predecessor Owner
Trustee will be fully discharged of its duties and obligations to serve as Owner
Trustee hereunder. The predecessor Owner Trustee shall promptly deliver to the
successor Owner Trustee all documents, statements and monies held by it under
this Agreement. The successor Owner Trustee shall promptly file an amendment to
the Certificate of Trust with the Secretary of State identifying the name and
principal place of business of such successor Owner Trustee in the State of
Delaware.
Section 8.03. Qualification of Owner Trustee. Any Owner Trustee will
------------------------------
at all times (i) be a trust company or a banking corporation under the laws of
its state of incorporation or a national banking association, having all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on a trust business in the State of
Delaware, (ii) comply with Section 3807 (and any other applicable Section) of
the Delaware Business Trust Act, (iii) have a combined capital and surplus of
not less than $50,000,000 (or have its obligations and liabilities irrevocably
and unconditionally guaranteed by an affiliated Person having a combined capital
and surplus of at least $50,000,000) and (iv) have (or have a parent which has)
a rating of at least Baa3 by Moody's, at least BBB- by Standard & Poor's or, if
not rated, otherwise satisfactory to each Note Rating Agency.
Section 8.04. Co-trustees and Separate Owner Trustees. Whenever the
---------------------------------------
Owner Trustee or the Beneficiary shall deem it necessary or prudent in order
either to conform to any law of any jurisdiction in which all or any part of the
Trust Estate shall be situated or to make any claim or bring any suit with
respect to the Trust Estate, or whenever the Owner Trustee or the Beneficiary
shall be advised by counsel satisfactory to them that such action is necessary
or prudent, the Owner Trustee and the Beneficiary shall execute and deliver an
agreement supplemental hereto and all other instruments and agreements, and
shall take all other actions, necessary or proper to appoint one or more Persons
either as co-trustee or co-trustees jointly with the Owner Trustee of all or any
part of the Trust Estate, or as a separate trustee or separate trustees of all
or any part of the Trust Estate, and to vest in such Persons, in such capacity,
such title to the Trust Estate or any part thereof, and such rights or duties,
as may be necessary or
21
desirable, all for such period and under such terms and conditions as are
satisfactory to the Owner Trustee and the Beneficiary. In case a
Disqualification Event shall occur with respect to any such co-trustee or
separate trustee, the title to the Trust Estate and all rights and duties of
such co-trustee or separate trustee shall, so far as permitted by law, vest in
and be exercised by the Owner Trustee, without the appointment of a successor to
such co-trustee or separate trustee.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments.
----------
(a) This Agreement may be amended from time to time, by a written
instrument executed by the Owner Trustee, at the written direction of the
Beneficiary, and the Beneficiary, without the consent of the Indenture Trustee
or any Noteholders, upon issuance of a Master Trust Tax Opinion and an Issuer
Tax Opinion (each as defined in the Indenture), which shall not be expenses of
the Owner Trustee or the Trustee Bank; provided, however, that the Issuer shall
-------- -------
deliver to the Indenture Trustee and the Owner Trustee an Officer's Certificate
(as defined in the Indenture) to the effect that the Issuer reasonably believes
that such amendment will not have an Adverse Effect (as defined in the
Indenture) and is not reasonably expected to have an Adverse Effect at any time
in the future.
(b) This Agreement may also be amended from time to time, by a
written instrument executed by the Owner Trustee, at the written direction of
the Beneficiary, and the Beneficiary, with prior written notice to each Note
Rating Agency, with the consent of the Indenture Trustee and not less than 66?%
in Outstanding Dollar Principal Amount of the Outstanding Notes affected by such
amendment and upon issuance of a Master Trust Tax Opinion and an Issuer Tax
Opinion; provided, however, that, without the consent of the Holders of all of
-------- -------
the Notes then outstanding, no such amendment shall (a) increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments in respect of the Collateral Certificate or distributions that are
required to be made for the benefit of the Noteholders or (b) reduce the
aforesaid percentage of the Outstanding Amount (as defined in the Indenture) of
the Notes, the Holders of which are required to consent to any such amendment.
(c) Promptly after the execution of any such amendment or consent,
the Issuer shall furnish written notification of the substance of such amendment
or consent to the Indenture Trustee and each Note Rating Agency.
(d) It shall not be necessary for the consent of the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
(f) The Owner Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Officer's Certificate of the Issuer to the
effect that the conditions to such amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into
22
any such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
ARTICLE X
OWNERSHIP INTERESTS AND CERTIFICATES
Section 10.01. Issuance of Trust Certificates. (a) Promptly following
------------------------------
the execution and delivery of this Agreement, the Owner Trustee on behalf of the
Trust will issue and deliver to the Beneficiary a certificate of beneficial
ownership of the Trust Estate substantially in the form of Exhibit A hereto (the
---------
"Trust Certificate") evidencing the Beneficiary's ownership interest (the
-----------------
"Ownership Interest") in the Trust.
------------------
(b) The Trust Certificate will be executed by manual signature on
behalf of the Trust by an authorized officer of the Owner Trustee. A Trust
Certificate bearing the manual signature of an individual who was, at the time
when such signature was affixed, an authorized officer will bind the Trust,
notwithstanding that such individual has ceased to be so authorized prior to the
delivery of such Trust Certificate. The Trust Certificate will be dated the date
of its execution.
(c) The Beneficiary will be entitled to all rights provided to it
under this Agreement and in the Trust Certificate and will be subject to the
terms and conditions contained in this Agreement and in the Trust Certificate.
(d) The Owner Trustee will maintain at its office referred to in
Section 2.07, or at the office of any agent appointed by it and approved in
------------
writing by the Beneficiary, a register for the registration of the Trust
Certificate. Such register will show the name and address of the holder of the
Trust Certificate, and the Owner Trustee will treat such register as definitive
and binding for all purposes hereunder.
(e) When the Trust Certificate is duly executed and issued by the
Trust and duly authenticated by the Owner Trustee in accordance with this
Agreement, the Trust Certificate will be fully paid, validly issued, non-
assessable and entitled to the benefits of this Agreement.
Section 10.02. Beneficial Interest; Prohibitions on Transfer. (a) The
---------------------------------------------
Ownership Interest will initially be beneficially owned by MBNA. Transfers of
the Ownership Interest and the Trust Certificate may be made between MBNA and
any other Person who is an Affiliate of MBNA (a "Permitted Affiliate
-------------------
Transferee") upon delivery to the Master Trust Trustee and the Owner Trustee of
----------
a Master Trust Tax Opinion and an Issuer Tax Opinion, respectively, with respect
to such transfer. The Beneficiary may not sell, participate, transfer, assign,
exchange or otherwise pledge or convey all or any part of its right, title and
interest in and to the Trust Certificate or its Ownership Interest to any other
Person, except (i) to any Permitted Affiliate Transferee, or (ii) to the extent
a corresponding transfer of the Collateral Certificate would be permitted by the
Pooling and Servicing Agreement. Any purported transfer by the Beneficiary of
all or any part of its right, title and interest in and to the Trust Certificate
or its Ownership Interest to any Person will be effective only upon the issuance
of a Master Trust Tax Opinion
23
and an Issuer Tax Opinion (each as defined in the Indenture), which will not be
an expense of the Owner Trustee or the Trustee Bank. Any purported transfer by
the Beneficiary of all or any part of its right, title and interest in and to
the Trust Certificate or its Ownership Interest which is not in compliance with
the terms of this Section 10.02 will be null and void.
-------------
(b) The Trust Certificate will bear a legend setting forth the
restriction on the transferability of the Ownership Interest substantially as
follows:
"THIS CERTIFICATE MAY NOT BE TRANSFERRED, ASSIGNED, EXCHANGED OR
OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF
THE TRUST AGREEMENT REFERRED TO BELOW. IN ADDITION, THE BENEFICIAL
INTEREST IN THE TRUST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY
--------------
NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED
OF BY THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT, THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED AND APPLICABLE STATE SECURITIES LAWS."
(c) The Owner Trustee shall not be required to ascertain whether
any purported transfer of the Ownership Interest and the Trust Certificate
complies with the Securities Act or with the Pooling and Servicing Agreement.
Section 10.03. Lost or Destroyed Trust Certificate. If the Trust
-----------------------------------
Certificate shall become mutilated, destroyed, lost or stolen, the Owner Trustee
on behalf of the Trust will, upon the written request of the Beneficiary, and
compliance with all applicable terms of this paragraph, execute and deliver to
such holder in replacement thereof a new Trust Certificate dated the same date
as on the Trust Certificate so mutilated, destroyed, lost or stolen. If the
Trust Certificate being replaced has been mutilated, destroyed, lost or stolen,
the Beneficiary will furnish to the Owner Trustee such security or indemnity as
may be required by the Owner Trustee to save the Owner Trustee harmless from any
damage, loss or liability in connection with such Trust Certificate, and the
Owner Trustee may require from the Beneficiary payment of a sum to reimburse the
Owner Trustee for, or to provide funds for, the payment of any costs, fees and
expenses and any tax or other governmental charge in connection therewith and
any charges paid or payable by the Owner Trustee.
ARTICLE XI
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 11.01. Trustee Bank Fees and Expenses. The Transferor will pay
------------------------------
to the Trustee Bank all fees and other charges described in a separate fee
agreement dated as of the date hereof between the Trust and the Trustee Bank
promptly when due thereunder and reimburse the Trustee Bank for all other
reasonable out-of-pocket costs and expenses (including reasonable
24
fees and expenses of counsel) incurred by it in connection with its acting as
Owner Trustee of the Trust.
Section 11.02. Indemnification. To the fullest extent permitted by
---------------
law, the Transferor hereby agrees, whether or not any of the transactions
contemplated by this Agreement will be consummated, to assume liability for, and
hereby indemnifies, protects, saves and keeps harmless the Trustee Bank and its
officers, directors, successors, assigns, legal representatives, agents and
servants (each an "Indemnified Person"), from and against any and all
------------------
liabilities, obligations, losses, damages, penalties, taxes, claims, actions,
investigations, proceedings, costs, expenses or disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted at any time against an Indemnified Person
(whether or not also indemnified against by any other person) in any way
relating to or arising out of this Agreement or any other related documents or
the enforcement of any of the terms of any thereof, the administration of the
Trust Estate or the action or inaction of the Owner Trustee, or the Trustee Bank
under this Agreement, and the manufacture, purchase, acceptance, nonacceptance,
rejection, ownership, delivery, lease, possession, use, operation, condition,
sale, return or other disposition of any property (including any strict
liability, any liability without fault and any latent and other defects, whether
or not discoverable), except, in any such case, to the extent that any such
liabilities, obligations, losses, damages, penalties, taxes, claims, actions,
investigations, proceedings, costs, expenses and disbursements are the result of
any of the matters described in the third sentence of Section 6.01; provided,
------------ --------
however, that the Transferor shall not be liable for or required to indemnify an
-------
Indemnified Person from and against expenses arising or resulting from (i) the
Indemnified Party's own willful misconduct, bad faith or negligence, or (ii) the
inaccuracy of any representation or warranty contained in Section 6.07 made by
------------
the Indemnified Person.
In case any such action, investigation or proceeding will be brought
involving an Indemnified Person, the Transferor will assume the defense thereof,
including the employment of counsel and the payment of all expenses. The Trustee
Bank will have the right to employ separate counsel in any such action,
investigation or proceeding and to participate in the defense thereof and the
reasonable counsel fees and expenses of such counsel will be paid by the
Transferor. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section, the Trustee Bank's choice of legal
counsel shall be subject to the approval of the Beneficiary, which approval
shall not be unreasonably withheld.
The indemnification set forth herein will survive the termination of this
Agreement and the resignation or removal of the Trustee Bank.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Conveyance by the Owner Trustee is Binding. Any sale or
------------------------------------------
other conveyance of any part of the Trust Estate by the Owner Trustee made
pursuant to the terms of this Agreement will bind the Beneficiary and will be
effective to transfer or convey all beneficial interest of the Owner Trustee and
Beneficiary in and to such part of the Trust Estate, as the case may be. No
purchaser or other grantee will be required to inquire as to the authorization,
25
necessity, expediency or regularity of such sale or conveyance or as to the
application of any sale or other proceeds with respect thereto by the Owner
Trustee or the officers.
Section 12.02. Instructions; Notices. All instructions, notices,
---------------------
requests or other communications ("Deliveries") desired or required to be given
----------
under this Agreement will be in writing and will be sent by (a) certified or
registered mail, return receipt requested, postage prepaid, (b) national prepaid
overnight delivery service, (c) telecopy or other facsimile transmission or (d)
personal delivery, with receipt acknowledged in writing, to the following
addresses:
(i) if to MBNA:
MBNA America Bank, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (302) ___-____
(ii) if to the Owner Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All Deliveries will be deemed given when actually received or refused by
the party to whom the same is directed (except to the extent sent by certified
or registered mail, return receipt requested, postage prepaid, in which event
such Deliveries will be deemed given three days after the date of mailing and
except to the extent sent by telecopy or other facsimile transmission, in which
event such Deliveries will be deemed given when answer back is received). Either
party may designate a change of address or supplemental address by notice to the
other party, given at least 15 days before such change of address is to become
effective.
Section 12.03. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable
any provision hereof in any other jurisdiction.
Section 12.04. Limitation of Liability. (a) Neither the Beneficiary
-----------------------
nor any officer, director, employee, agent, partner, shareholder, trustee or
principal of the Beneficiary, the Trust or any Person owning, directly or
indirectly, any legal or beneficial interest in the Beneficiary, will have any
liability or obligation with respect to the Trust or the performance of this
Agreement or any other agreement, document or instrument executed by the Trust,
and the creditors of the Trust and all other Persons will look solely to the
Trust Estate for the satisfaction
26
of any claims with respect thereto. The foregoing limitation of liability is
subject to Section 12.06 and is in addition to, and not exclusive of, any
-------------
limitation of liability applicable to the Persons referred to above by operation
of law.
(b) All agreements entered into by the Trust under which the Trust
would have any material liability will contain an exculpatory provision
substantially to the following effect:
Neither any trustee nor any beneficiary of MBNA Credit Card
Master Note Trust nor any of their respective officers,
directors, employers or agents will have any liability with
respect to this agreement, and recourse may be had solely
to the assets of MBNA Credit Card Master Note Trust with
respect thereto.
Section 12.05. Separate Counterparts. This Agreement may be executed
---------------------
by the parties hereto in separate counterparts, each of which when so executed
and delivered will be an original, but all such counterparts will together
constitute but one and the same instrument.
Section 12.06. Successors and Assigns. All covenants and agreements
----------------------
contained herein will be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and assigns and the Beneficiary and their successors
and permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by the Beneficiary will bind the
successors and assigns of the Beneficiary.
Section 12.07. Headings. The headings of the various Sections herein
--------
are for convenience of reference only and will not limit any of the terms or
provisions herein.
Section 12.08. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
Section 12.09. No Recourse. The holder of the Trust Certificate by
-----------
accepting the Trust Certificate acknowledges that the Trust Certificate does not
represent an interest in or obligation of the Beneficiary, the Owner Trustee (in
its individual capacity), the Indenture Trustee or any Affiliate thereof, and no
recourse may be had against such parties or their assets, or against the assets
pledged under the Indenture.
Section 12.10. Acceptance of Terms of Agreement. THE RECEIPT AND
--------------------------------
ACCEPTANCE OF THE TRUST CERTIFICATE BY THE BENEFICIARY, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE BENEFICIARY OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST THAT THE TERMS AND PROVISIONS OF THIS
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND THE
BENEFICIARY.
[Signature Page to Follow]
27
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to
be duly executed, by their respective officers hereunto duly authorized all as
of the day and year first above written.
WILMINGTON TRUST COMPANY, as
Owner Trustee
By:___________________
Name:
Title:
MBNA AMERICA BANK, NATIONAL
ASSOCIATION, as Beneficiary and as
Transferor
By:___________________
Name:
Title:
[Signature Page to MBNA Credit Card Master Note Trust Trust Agreement]
EXHIBIT A
[FORM OF TRUST CERTIFICATE]
THIS CERTIFICATE MAY NOT BE TRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE
PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT
REFERRED TO BELOW. IN ADDITION, THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED
BY THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND
--------------
MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY
THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED AND APPLICABLE
STATE SECURITIES LAWS.
MBNA CREDIT CARD MASTER NOTE TRUST
TRUST CERTIFICATE
(This Certificate does not represent an interest in or obligation of MBNA
America Bank, National Association or any of its affiliates, except to the
extent described below.)
THIS CERTIFIES THAT MBNA America Bank, National Association is the
registered owner of the MBNA Credit Card Master Note Trust (the "Trust") created
-----
by MBNA America Bank, National Association, a national banking association
("MBNA").
----
The Trust was created pursuant to (i) the filing of the Certificate of
Trust with the Secretary of State of the State of Delaware and (ii) the MBNA
Credit Card Master Note Trust Trust Agreement dated as of _______ __, 2001 (the
"Trust Agreement"), between MBNA, as Beneficiary and as Transferor, and
---------------
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). To the extent
-------------
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement including, as specified in
subsection 1.01(a).
------------------
This Certificate is the duly authorized Certificate evidencing a beneficial
interest in the Trust (herein called the "Certificate"). This Certificate is
-----------
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the Owner by virtue of the acceptance hereof
assents and by which the Owner is bound.
Notwithstanding any prior termination of the Trust Agreement, the Owner, by
its acceptance of this Certificate, covenants and agrees that, to the fullest
extent permitted by applicable law, it shall not at any time with respect to the
Trust, the Beneficiary or the Master Trust, acquiesce, petition or otherwise
invoke or cause the Trust, the Beneficiary or the Master Trust to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Trust, the Beneficiary or the Master Trust under
any Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust, the Beneficiary or the Master Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust, the Beneficiary or the Master Trust.
A-1
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or any Transaction Document or be valid for any purpose.
THIS CERTIFICATE AND THE TRUST AGREEMENT WILL IN ALL RESPECTS BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO ANY CONFLICT-OF-LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE OWNER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-2
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity pursuant to the Trust Agreement, has caused this
Certificate to be issued by the Trust as of the date hereof.
MBNA CREDIT CARD MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
By:________________________
Name:
Title:
Date: _________ __, 2001
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY, or WILMINGTON TRUST COMPANY,
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By:____________________________
Authenticating Agent
By:______________________________ By:____________________________
Authorized Signatory Authorized Signatory
ANNEX I to EXHIBIT A
Registered Owner and address:
MBNA America Bank, National Association
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tax Identification Number:
▇▇-▇▇▇▇▇▇▇
EXHIBIT B
CERTIFICATE OF TRUST OF
MBNA CREDIT CARD MASTER NOTE TRUST
THIS Certificate of Trust of MBNA Credit Card Master Note Trust (the
"Trust") has been duly executed and is being filed by Wilmington Trust Company,
-----
a Delaware banking corporation, as trustee, to create a business trust under the
Delaware Business Trust Act (12 Del. C., (S) 3801 et seq.).
------- -- ---
1. Name. The name of the business trust created hereby is MBNA Credit
----
Card Master Note Trust.
2. Delaware Trustee. The name and business address of the trustee of the
----------------
Trust in the State of Delaware are Wilmington Trust Company, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective on
--------------
_______ __, 2001.
IN WITNESS WHEREOF, the undersigned, has executed this Certificate of Trust
in accordance with Section 3811(a) of the Delaware Business Trust Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: __________________________
Name:
Title:
B-1