SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MBNA America Bank, National Association
(Exact name of registrant as specified in its charter)
United States 51-0331454
(State of incorporation or organization) (IRS Employer
Identification No.)
1100 North King Street
Wilmington, Delaware 19801
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
MBNA Master Credit Card Trust II
Class A 6.60% Asset Backed Certificates, Series 1997-F
Class B Floating Rate Asset Backed Certificates, Series 1997-F
(Title of Class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be
Registered.
The description of the Asset Backed Certificates
appearing under the captions entitled: "Summary of
Terms"; "Risk Factors"; "The Receivables";
"Maturity Assumptions"; "Receivable Yield
Considerations"; and "Description of the
Certificates" in the Prospectus Supplement dated
June 11, 1997 and "Prospectus Summary"; "Risk
Factors"; "The Receivables"; "Maturity
Assumptions"; "Description of the Certificates";
"Certain Legal Aspects of the Receivables";
"Federal Income Tax Consequences"; and "ERISA
Considerations" in the Prospectus, dated April 22,
1997 (the Prospectus and the Prospectus Supplement
are incorporated herein by reference as Exhibit 5).
Item 2. Exhibits.
Exhibit 1--Form of specimens of
certificates representing Class A 6.60%
Asset Backed Certificates, Series 1997-F
and Class B Floating Rate Asset Backed
Certificates, Series 1997-F.
Exhibit 2--Pooling and Servicing
Agreement (included in Exhibit 4 to the
Registrant's Form 8-K, as filed with the
Securities and Exchange Commission on
October 14, 1994, which is incorporated
herein by reference).
Exhibit 3--First Amendment to Pooling
and Servicing Agreement, dated as of
March 11, 1996 (included in Exhibit 3 to
the Registrant's Form 8-A, as filed with
the Securities and Exchange Commission
on April 5, 1996, which is incorporated
herein by reference).
Exhibit 4--Series 1997-B Supplement.
Exhibit 5--Prospectus Supplement dated
June 11, 1997 together with the
Prospectus dated April 22, 1997, as
filed with the Securities and Exchange
Commission on June 13, 1997, pursuant to
Rule 424(b)(5).
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, as amended, the Registrant
has duly caused this Form 8-A to be signed on its behalf by
the undersigned, thereto duly authorized.
MBNA AMERICA BANK,
NATIONAL ASSOCIATION
Date: June 18, 1997
By: /s/ Jerry M. Hamstead
Jerry M. Hamstead
Vice President
CLASS A
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to MBNA America Bank, National
Association or its agent for registration of transfer,
exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name
as requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
No. 3 $200,000,000
CUSIP No. 55262TCJ0
MBNA MASTER CREDIT CARD TRUST II
CLASS A 6.60%
ASSET BACKED CERTIFICATE, SERIES 1997-F
Evidencing an Undivided Interest in a trust, the corpus of which
consists of a portfolio of MasterCard registered trademark and VISA
registered trademark/ credit card receivables generated or acquired by
MBNA America Bank, National Association and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement
described below.
(Not an interest in or obligation of
MBNA America Bank, National Association
or any Affiliate thereof.)
This certifies that CEDE & CO. (the "Class A
Certificateholder") is the registered owner of an Undivided Interest in
a trust (the "Trust"), the corpus of which consists of a portfolio of
receivables (the "Receivables") now existing or hereafter created and
arising in connection with selected MasterCard and VISA credit card
accounts (the "Accounts") of MBNA America Bank, National Association, a
national banking association organized under the laws of the United
States, all monies due or to become due in payment of the Receivables
(including all Finance Charge Receivables but excluding recoveries on
any charged-off Receivables), the right to certain amounts received as
Interchange with respect to the Accounts, the benefits of the Collateral
Interest and the other assets and interests constituting the Trust
pursuant to a Pooling and Servicing Agreement dated as of August 4,
1994, as amended as of March 11, 1996, as supplemented by the Series
1997-F Supplement dated as of June 18, 1997 (collectively, the "Pooling
and Servicing Agreement"), by and between MBNA America Bank, National
Association, as Seller (the "Seller") and as Servicer (the "Servicer"),
and The Bank of New York, as Trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereinbelow.
The Series 1997-F Certificates are issued in two classes, the Class A
Certificates (of which this certificate is one) and the Class B
Certificates, which are subordinated to the Class A Certificates in
certain rights of payment as described herein and in the Pooling and
Servicing Agreement.
The Seller has structured the Pooling and Servicing
Agreement and the Series 1997-F Certificates with the intention that the
Series 1997-F Certificates will qualify under applicable tax law as
indebtedness, and each of the Seller, the Holder of the Seller
Certificate, the Servicer and each Series 1997-F Certificateholder (or
Series 1997-F Certificate Owner) by acceptance of its Series 1997-F
Certificate (or in the case of a Series 1997-F Certificate Owner, by
virtue of such Series 1997-F Certificate Owner's acquisition of a
beneficial interest therein), agrees to treat and to take no action
inconsistent with the treatment of the Series 1997-F Certificates (or
any beneficial interest therein) as indebtedness for purposes of
federal, state, local and foreign income or franchise taxes and any
other tax imposed on or measured by income. Each Series 1997-F
Certificateholder agrees that it will cause any Series 1997-F
Certificate Owner acquiring an interest in a Series 1997-F Certificate
through it to comply with the Pooling and Servicing Agreement as to
treatment of the Series 1997-F Certificates as indebtedness for certain
tax purposes.
To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Class A Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Class A Certificateholder by virtue of
the acceptance hereof assents and by which the Class A Certificateholder
is bound.
Although a summary of certain provisions of the Pooling and
Servicing Agreement is set forth below, this Class A Certificate is
qualified in its entirety by the terms and provisions of the Pooling and
Servicing Agreement and reference is made to that Pooling and Servicing
Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the
rights, duties and obligations of the Trustee.
Interest will accrue on the Class A Certificates at the rate
of 6.60% per annum from the Closing Date (the "Class A Certificate
Rate"), as more specifically set forth in the Pooling and Servicing
Agreement, and will be distributed on August 15, 1997 and on the 15th
day of each calendar month thereafter, or if such day is not a Business
Day, on the next succeeding Business Day (a "Distribution Date"), to the
Class A Certificateholders of record as of the last Business Day of the
calendar month preceding such Distribution Date. During the Rapid
Amortization Period, in addition to Class A Monthly Interest, Class A
Monthly Principal will be distributed to the Class A Certificateholders
on the Distribution Date of each calendar month commencing in the month
following the commencement of the Rapid Amortization Period until the
Class A Certificates have been paid in full. During the Controlled
Accumulation Period and the Rapid Accumulation Period, in addition to
monthly payments of Class A Monthly Interest, the amount on deposit in
the Principal Funding Account will be distributed as principal to the
Class A Certificateholders on the June 2002 Distribution Date, unless
distributed earlier as a result of the commencement of the Rapid
Amortization Period in accordance with the Pooling and Servicing
Agreement.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Class A Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, MBNA America Bank, National Association
has caused this Series 1997-F Class A Certificate to be duly executed
under its official seal.
By:Jerry M. Hamstead
Authorized Officer
[Seal]
Attested to:
By:John W. Scheflen
Cashier
Date: June 18, 1997
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
This is one of the Series 1997-F Class A Certificates
referred to in the within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
Trustee
By:Joseph Ernst
Authorized Signatory
Date: June 18, 1997
CLASS B
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to MBNA America Bank, National
Association or its agent for registration of transfer,
exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name
as requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
No. 1 $53,000,000
CUSIP No. 55262TCK7
MBNA MASTER CREDIT CARD TRUST II
CLASS B FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1997-F
Evidencing an Undivided Interest in a trust, the corpus of which
consists of a portfolio of MasterCard registered trademark and VISA
registered trademark credit card receivables generated or acquired by
MBNA America Bank, National Association and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement
described below.
(Not an interest in or obligation of
MBNA America Bank, National Association
or any Affiliate thereof.)
This certifies that CEDE & CO. (the "Class B
Certificateholder") is the registered owner of an Undivided Interest in
a trust (the "Trust"), the corpus of which consists of a portfolio of
receivables (the "Receivables") now existing or hereafter created and
arising in connection with selected MasterCard and VISA credit card
accounts (the "Accounts") of MBNA America Bank, National Association, a
national banking association organized under the laws of the United
States, all monies due or to become due in payment of the Receivables
(including all Finance Charge Receivables but excluding recoveries on
any charged-off Receivables), the right to certain amounts received as
Interchange with respect to the Accounts, the benefits of the Collateral
Interest and the other assets and interests constituting the Trust
pursuant to a Pooling and Servicing Agreement dated as of August 4,
1994, as amended as of March 11, 1996, as supplemented by the Series
1997-F Supplement dated as of June 18, 1997 (collectively, the "Pooling
and Servicing Agreement"), by and between MBNA America Bank, National
Association, as Seller (the "Seller") and as Servicer (the "Servicer"),
and The Bank of New York, as Trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereinbelow.
The Series 1997-F Certificates are issued in two classes, the Class A
Certificates and the Class B Certificates (of which this certificate is
one), which are subordinated to the Class A Certificates in certain
rights of payment as described herein and in the Pooling and Servicing
Agreement.
The Seller has structured the Pooling and Servicing
Agreement and the Series 1997-F Certificates with the intention that the
Series 1997-F Certificates will qualify under applicable tax law as
indebtedness, and each of the Seller, the Holder of the Seller
Certificate, the Servicer and each Series 1997-F Certificateholder (or
Series 1997-F Certificate Owner) by acceptance of its Series 1997-F
Certificate (or in the case of a Series 1997-F Certificate Owner, by
virtue of such Series 1997-F Certificate Owner's acquisition of a
beneficial interest therein), agrees to treat and to take no action
inconsistent with the treatment of the Series 1997-F Certificates (or
any beneficial interest therein) as indebtedness for purposes of
federal, state, local and foreign income or franchise taxes and any
other tax imposed on or measured by income. Each Series 1997-F
Certificateholder agrees that it will cause any Series 1997-F
Certificate Owner acquiring an interest in a Series 1997-F Certificate
through it to comply with the Pooling and Servicing Agreement as to
treatment of the Series 1997-F Certificates as indebtedness for certain
tax purposes.
To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Class B Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Class B Certificateholder by virtue of
the acceptance hereof assents and by which the Class B Certificateholder
is bound.
Although a summary of certain provisions of the Pooling and
Servicing Agreement is set forth below, this Class B Certificate is
qualified in its entirety by the terms and provisions of the Pooling and
Servicing Agreement and reference is made to that Pooling and Servicing
Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the
rights, duties and obligations of the Trustee.
Interest will accrue on the Class B Certificates from the
Closing Date through July 14, 1997 and from July 15, 1997 through August
14, 1997 and with respect to each Interest Period thereafter, at the
rate of 0.29% per annum above LIBOR, as more specifically set forth in
the Pooling and Servicing Agreement, and will be distributed on August
15, 1997 and on the 15th day of each calendar month thereafter, or if
such day is not a Business Day, on the next succeeding Business Day (a
"Distribution Date"), to the Class B Certificateholders of record as of
the last Business Day of the calendar month preceding such Distribution
Date. During the Rapid Amortization Period, in addition to Class B
Monthly Interest, Class B Monthly Principal will be distributed to the
Class B Certificateholders on each Distribution Date commencing in the
month on which the Class A Investor Interest is paid in full. During
the Rapid Accumulation Period after the Principal Funding Account
Balance equals the Class A Investor Interest, in addition to monthly
payments of Class B Monthly Interest, the amount on deposit in the
Principal Funding Account in excess of the Class A Investor Interest and
in an amount not to exceed the Class B Investor Interest and Available
Investor Principal Collections not required to be deposited into the
Principal Funding Account in respect of the Class A Investor Interest
will be distributed as principal to the Class B Certificateholders.
During the Controlled Accumulation Period following the payment in full
of the Class A Investor Interest, the amount on deposit in the Principal
Funding Account in excess of the Class A Investor Interest and in an
amount not to exceed the Class B Investor Interest will be distributed
as principal to the Class B Certificateholders on the June 2002
Distribution Date, unless distributed earlier as a result of the
occurrence of a Pay Out Event.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Class B Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, MBNA America Bank, National Association
has caused this Series 1997-F Class B Certificate to be duly executed
under its official seal.
By:Jerry M. Hamstead
Authorized Officer
[Seal]
Attested to:
By:John W. Scheflen
Cashier
Date: June 18, 1997
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
This is one of the Series 1997-F Class B Certificates
referred to in the within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK
Trustee
By:Joseph Ernst
Authorized Signatory
Date: June 18, 1997
(..continued)
DC1-29538.1
EXECUTION COPY
_________________________________________________________________
MBNA AMERICA BANK, NATIONAL ASSOCIATION
Seller and Servicer
and
THE BANK OF NEW YORK
Trustee
on behalf of the Series 1997-F Certificateholders
________________________________________
SERIES 1997-F SUPPLEMENT
Dated as of June 18, 1997
to
POOLING AND SERVICING AGREEMENT
Dated as of August 4, 1994
_______________________________________
MBNA MASTER CREDIT CARD TRUST II
SERIES 1997-F
_________________________________________________________________
TABLE OF CONTENTS
Page
SECTION 1. Designation 1
SECTION 2. Definitions 2
SECTION 3. Servicing Compensation and Assignment of
Interchange 21
SECTION 4. Reassignment and Transfer Terms 23
SECTION 5. Delivery and Payment for the Certificates 23
SECTION 6. Depository; Form of Delivery of Investor
Certificates 24
SECTION 7. Article IV of Agreement 24
SECTION 4.04 Rights of Certificateholders and the
Collateral Interest Holder 24
SECTION 4.05 Allocations 24
SECTION 4.06 Determination of Monthly Interest 30
SECTION 4.07 Determination of Monthly Principal 31
SECTION 4.08 Coverage of Required Amount 32
SECTION 4.09 Monthly Payments 33
SECTION 4.10 Investor Charge-Offs 38
SECTION 4.11 Excess Spread 40
SECTION 4.12 Reallocated Principal Collections 41
SECTION 4.13 Shared Principal Collections 42
SECTION 4.14 Principal Funding Account 43
SECTION 4.15 Reserve Account 45
SECTION 4.16 Swap Reserve Fund. 47
SECTION 4.17 Determination of LIBOR 49
SECTION 4.18 Seller's or Servicer's Failure to Make a
Deposit or Payment 50
SECTION 4.19 Interest Rate Swap 50
SECTION 4.20 Interest Reserve Account 52
SECTION 8. Article V of the Agreement 53
SECTION 5.01 Distributions 53
SECTION 5.02 Monthly Series 1997-F
Certificateholders' Statement 54
SECTION 9. Series 1997-F Pay Out Events 56
SECTION 10. Series 1997-F Termination 58
SECTION 11. Periodic Finance Charges and Other Fees 58
SECTION 12. Limitations on Addition of Accounts 58
SECTION 13. Counterparts 58
SECTION 14. Governing Law 59
SECTION 15. Additional Notices 59
SECTION 16. Additional Representations and Warranties of
the Servicer 59
SECTION 17. No Petition 60
SECTION 18. Certain Tax Related Amendments 60
SECTION 19. Tax Representation and Covenant 60
EXHIBITS
EXHIBIT A-1 Form of Class A Certificate
EXHIBIT A-2 Form of Class B Certificate
EXHIBIT B Form of Monthly Payment Instructions and
Notification to the Trustee
EXHIBIT C Form of Monthly Series 1997-F Certificateholders'
Statement
SCHEDULE 1
Schedule to Exhibit C of the Pooling and Servicing Agreement with
respect to the Investor Certificates
SERIES 1997-F SUPPLEMENT, dated as of June 18, 1997 (this
"Series Supplement"), by and between MBNA AMERICA BANK, NATIONAL
ASSOCIATION, a national banking association, as Seller and Servicer, and
THE BANK OF NEW YORK, as Trustee under the Pooling and Servicing
Agreement dated as of August 4, 1994 between MBNA America Bank, National
Association and the Trustee (as amended, the "Agreement").
Section 6.09 of the Agreement provides, among other things,
that the Seller and the Trustee may at any time and from time to time
enter into a supplement to the Agreement for the purpose of authorizing
the delivery by the Trustee to the Seller for the execution and
redelivery to the Trustee for authentication of one or more Series of
Certificates.
Pursuant to this Series Supplement, the Seller and the Trust
shall create a new Series of Investor Certificates and shall specify the
Principal Terms thereof.
(a) There is hereby created a Series of Investor Certificates
to be issued in two classes pursuant to the Agreement and this Series
Supplement and to be known together as the "Series 1997-F Certificates."
The two classes shall be designated the Class A 6.60% Asset Backed
Certificates, Series 1997-F (the "Class A Certificates") and the Class B
Floating Rate Asset Backed Certificates, Series 1997-F (the "Class B
Certificates"). The Class A Certificates and the Class B Certificates
shall be substantially in the form of Exhibits A-1 and A-2 hereto,
respectively. In addition, there is hereby created a third class of an
uncertificated interest in the Trust which shall be deemed to be an
"Investor Certificate" for all purposes under the Agreement and this
Series Supplement, except as expressly provided herein, and which shall
be known as the Collateral Interest, Series 1997-F (the "Collateral
Interest").
(b) Series 1997-F shall be included in Group One (as defined
below). Series 1997-F shall not be subordinated to any other Series.
(c) The Collateral Interest Holder, as holder of an
"Investor Certificate" under the Agreement, shall be entitled to the
benefits of the Agreement and this Series Supplement upon payment by the
Collateral Interest Holder of amounts owing on the Closing Date pursuant
to the Loan Agreement. Notwithstanding the foregoing, except as
expressly provided herein, the provisions of Article VI and Article XII
of the Agreement relating to the registration, authentication, delivery,
presentation, cancellation and surrender of Registered Certificates and
the opinion described in Section 6.09(b)(d)(i) and clauses (a) and (c)
of the definition of Tax Opinion in Section 1.01 of the Agreement shall
not be applicable to the Collateral Interest.
SECTION 2. Definitions.
In the event that any term or provision contained herein
shall conflict with or be inconsistent with any provision contained in
the Agreement, the terms and provisions of this Series Supplement shall
govern. All Article, Section or subsection references herein shall mean
Articles, Sections or subsections of the Agreement, except as otherwise
provided herein. All capitalized terms not otherwise defined herein are
defined in the Agreement. Each capitalized term defined herein shall
relate only to the Investor Certificates and no other Series of
Certificates issued by the Trust.
"Accumulation Period" shall mean, solely for the purposes of
the definition of Group One Monthly Principal Payment as such term is
defined in each Supplement relating to Group One, the Controlled
Accumulation Period.
"Accumulation Period Factor" shall mean, for each Monthly
Period, a fraction, the numerator of which is equal to the sum of the
initial investor interests of all outstanding Series, and the
denominator of which is equal to the sum of (a) the Initial Investor
Interest, (b) the initial investor interests of all outstanding Series
(other than Series 1997-F) which are not expected to be in their
revolving periods, and (c) the initial investor interests of all other
outstanding Series which are not allocating Shared Principal Collections
to other Series and are in their revolving periods; provided, however,
that this definition may be changed at anytime if the Rating Agency
Condition is satisfied.
"Accumulation Period Length" shall have the meaning assigned
such term in subsection 4.09(j).
"Accumulation Shortfall" shall initially mean zero and shall
thereafter mean, with respect to any Monthly Period during the
Controlled Accumulation Period, the excess, if any, of the Controlled
Deposit Amount for the previous Monthly Period over the amount deposited
into the Principal Funding Account pursuant to subsections 4.09(e)(i)
and 4.09(e)(ii) with respect to the Class A Certificates and the Class B
Certificates, respectively, for the previous Monthly Period.
"Adjusted Investor Interest" shall mean, with respect to any
date of determination, an amount equal to the sum of (a) the Class A
Adjusted Investor Interest and (b) the Class B Adjusted Investor
Interest and (c) the Collateral Interest.
"Aggregate Investor Default Amount" shall mean, with respect
to any Monthly Period, the sum of the Investor Default Amounts in
respect of such Monthly Period.
"Available Investor Principal Collections" shall mean with
respect to any Monthly Period, an amount equal to (a) the Investor
Principal Collections for such Monthly Period, minus (b) the amount of
Reallocated Collateral Principal Collections and Reallocated Class B
Principal Collections with respect to such Monthly Period which pursuant
to Section 4.12 are required to fund the Class A Required Amount and the
Class B Required Amount, plus (c) the amount of Shared Principal
Collections with respect to Group One that are allocated to Series
1997-F in accordance with subsection 4.13(b).
"Available Reserve Account Amount" shall mean, with respect
to any Transfer Date, the lesser of (a) the amount on deposit in the
Reserve Account on such date (after taking into account any interest and
earnings retained in the Reserve Account pursuant to subsection 4.15(b)
on such date, but before giving effect to any deposit made or to be made
pursuant to subsection 4.11(i) to the Reserve Account on such date) and
(b) the Required Reserve Account Amount.
"Available Swap Reserve Fund Amount" shall mean, with
respect to any Transfer Date, the lesser of (a) the amount on deposit in
the Swap Reserve Fund on such date (after taking into account any
interest and earnings retained in the Swap Reserve Fund pursuant to
subsection 4.16(b) on such date, but before giving effect to any deposit
made or to be made pursuant to subsection 4.11(k) to the Swap Reserve
Fund on such date) and (b) the Required Swap Reserve Fund Amount.
"Base Rate" shall mean, with respect to any Monthly Period,
the annualized percentage equivalent of a fraction, the numerator of
which is equal to the sum of the Class A Monthly Interest, the Class B
Monthly Interest, the Collateral Monthly Interest, and the Net Swap
Payment, if any, each for the related Interest Period, less the Net Swap
Receipt, if any, deposited in the Finance Charge Account for such
Interest Period, and the Certificateholder Servicing Fee and the
Servicer Interchange, each with respect to such Monthly Period, and the
denominator of which is the Investor Interest as of the close of
business on the last day of such Monthly Period.
"Certificateholder Servicing Fee" shall have the meaning
specified in subsection 3(a) hereof.
"Class A Additional Interest" shall have the meaning
specified in subsection 4.06(a).
"Class A Adjusted Investor Interest" shall mean, with
respect to any date of determination, an amount equal to the Class A
Investor Interest minus the funds on deposit in the Principal Funding
Account (in an amount not to exceed the Class A Investor Interest) on
such date of determination.
"Class A Available Funds" shall mean, with respect to any
Monthly Period, an amount equal to the sum of (a) the Class A Floating
Allocation of the Collections of Finance Charge Receivables and amounts
with respect to Annual Membership Fees allocated to the Investor
Certificates and deposited in the Finance Charge Account for such
Monthly Period (or to be deposited in the Finance Charge Account on the
related Transfer Date with respect to the preceding Monthly Period
pursuant to the third paragraph of subsection 4.03(a) and Section 2.08
of the Agreement and subsection 3(b) of this Series Supplement),
excluding the portion of Collections of Finance Charge Receivables
attributable to Servicer Interchange, (b) the Net Swap Receipt, if any,
deposited in the Finance Charge Account with respect to such Monthly
Period and previously due but not paid Net Swap Receipts, if any,
deposited in the Finance Charge Account with respect to such Monthly
Period, (c) the Principal Funding Investment Proceeds to be treated as
Class A Available Funds pursuant to subsection 4.14(b)(i), if any, with
respect to the related Transfer Date, (d) amounts, if any, to be
withdrawn from the Reserve Account which will be deposited into the
Finance Charge Account on the related Transfer Date to be treated as
Class A Available Funds pursuant to subsections 4.15(b) and 4.15(d)(i),
(e) amounts, if any, to be withdrawn from the Swap Reserve Fund which
will be deposited into the Finance Charge Account on the related
Transfer Date pursuant to subsection 4.16(d), and (f) amounts, if any,
to be withdrawn from the Interest Reserve Account and deposited into the
Finance Charge Account on the related Transfer Date pursuant to
subsection 4.20(c).
"Class A Certificate Rate" shall mean 6.60% per annum,
calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"Class A Certificateholder" shall mean the Person in whose
name a Class A Certificate is registered in the Certificate Register.
"Class A Certificates" shall mean any of the certificates
executed by the Seller and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-1 hereto.
"Class A Deficiency Amount" shall have the meaning specified
in subsection 4.06(a).
"Class A Fixed Allocation" shall mean, with respect to any
Monthly Period following the Revolving Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction, the numerator
of which is the Class A Investor Interest as of the close of business on
the last day of the Revolving Period and the denominator of which is
equal to the Investor Interest as of the close of business on the last
day of the Revolving Period.
"Class A Floating Allocation" shall mean, with respect to
any Monthly Period, the percentage equivalent (which percentage shall
never exceed 100%) of a fraction, the numerator of which is the Class A
Adjusted Investor Interest as of the close of business on the last day
of the preceding Monthly Period and the denominator of which is equal to
the Adjusted Investor Interest as of the close of business on such day;
provided, however, that, with respect to the first Monthly Period, the
Class A Floating Allocation shall mean the percentage equivalent of a
fraction, the numerator of which is the Class A Initial Investor
Interest and the denominator of which is the Initial Investor Interest.
"Class A Initial Investor Interest" shall mean the aggregate
initial principal amount of the Class A Certificates, which is
$600,000,000.
"Class A Investor Allocation" shall mean with respect to any
Monthly Period, (a) with respect to Default Amounts and Finance Charge
Receivables at any time and Principal Receivables during the Revolving
Period, the Class A Floating Allocation, and (b) with respect to
Principal Receivables during the Controlled Accumulation Period, the
Rapid Accumulation Period or the Rapid Amortization Period, the Class A
Fixed Allocation.
"Class A Investor Charge-Offs" shall have the meaning
specified in subsection 4.10(a).
"Class A Investor Default Amount" shall mean, with respect
to each Transfer Date, an amount equal to the product of (a) the
Aggregate Investor Default Amount for the related Monthly Period and (b)
the Class A Floating Allocation applicable for the related Monthly
Period.
"Class A Investor Interest" shall mean, on any date of
determination, an amount equal to (a) the Class A Initial Investor
Interest, minus (b) the aggregate amount of principal payments made to
Class A Certificateholders prior to such date and minus (c) the excess,
if any, of the aggregate amount of Class A Investor Charge-Offs pursuant
to subsection 4.10(a) over Class A Investor Charge-Offs reimbursed
pursuant to subsection 4.11(b) prior to such date of determination;
provided, however, that the Class A Investor Interest may not be reduced
below zero.
"Class A Monthly Interest" shall mean the monthly interest
distributable in respect of the Class A Certificates as calculated in
accordance with subsection 4.06(a).
"Class A Monthly Principal" shall mean the monthly principal
distributable in respect of the Class A Certificates as calculated in
accordance with subsection 4.07(a).
"Class A Required Amount" shall have the meaning specified
in subsection 4.08(a).
"Class A Servicing Fee" shall have the meaning specified in
subsection 3(a) of this Series Supplement.
"Class B Additional Interest" shall have the meaning
specified in subsection 4.06(b).
"Class B Adjusted Investor Interest" shall mean, with
respect to any date of determination, an amount equal to the Class B
Investor Interest minus the excess, if any, of the Principal Funding
Account Balance over the Class A Investor Interest on such date of
determination (such excess not to exceed the Class B Investor Interest).
"Class B Available Funds" shall mean, with respect to any
Monthly Period, an amount equal to the sum of (a) the Class B Floating
Allocation of the Collections of Finance Charge Receivables and amounts
with respect to Annual Membership Fees allocated to the Investor
Certificates and deposited in the Finance Charge Account for such
Monthly Period (or to be deposited in the Finance Charge Account on the
related Transfer Date with respect to the preceding Monthly Period
pursuant to the third paragraph of subsection 4.03(a) and Section 2.08
of the Agreement and subsection 3(b) of this Series Supplement),
excluding the portion of Collections of Finance Charge Receivables
attributable to Servicer Interchange, (b) the Principal Funding
Investment Proceeds to be treated as Class B Available Funds pursuant to
subsection 4.14(b)(ii), if any, with respect to the related Transfer
Date and (c) amounts, if any, to be withdrawn from the Reserve Account
which will be deposited into the Finance Charge Account on the related
Transfer Date to be treated as Class B Available Funds pursuant to
subsection 4.15(d)(ii).
"Class B Certificate Rate" shall mean from the Closing Date
through July 14, 1997, and from July 15, 1997 through August 14, 1997
and with respect to each Interest Period thereafter, a per annum rate
equal to 0.29% in excess of LIBOR, as determined on the related LIBOR
Determination Date.
"Class B Certificateholder" shall mean the Person in whose
name a Class B Certificate is registered in the Certificate Register.
"Class B Certificates" shall mean any of the certificates
executed by the Seller and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-2 hereto.
"Class B Deficiency Amount" shall have the meaning specified
in subsection 4.06(b).
"Class B Fixed Allocation" shall mean, with respect to any
Monthly Period following the Revolving Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction, the numerator
of which is the Class B Investor Interest as of the close of business on
the last day of the Revolving Period and the denominator of which is
equal to the Investor Interest as of the close of business on the last
day of the Revolving Period.
"Class B Floating Allocation" shall mean, with respect to
any Monthly Period, the percentage equivalent (which percentage shall
never exceed 100%) of a fraction, the numerator of which is the Class B
Adjusted Investor Interest as of the close of business on the last day
of the preceding Monthly Period and the denominator of which is equal to
the Adjusted Investor Interest as of the close of business on such day;
provided, however, that, with respect to the first Monthly Period, the
Class B Floating Allocation shall mean the percentage equivalent of a
fraction, the numerator of which is the Class B Initial Investor
Interest and the denominator of which is the Initial Investor Interest.
"Class B Initial Investor Interest" shall mean the aggregate
initial principal amount of the Class B Certificates, which is
$53,000,000.
"Class B Investor Allocation" shall mean with respect to any
Monthly Period, (a) with respect to Default Amounts and Finance Charge
Receivables at any time or Principal Receivables during the Revolving
Period, the Class B Floating Allocation, and (b) with respect to
Principal Receivables during the Controlled Accumulation Period, the
Rapid Accumulation Period or the Rapid Amortization Period, the Class B
Fixed Allocation.
"Class B Investor Charge-Offs" shall have the meaning
specified in subsection 4.10(b).
"Class B Investor Default Amount" shall mean, with respect
to each Transfer Date, an amount equal to the product of (a) the
Aggregate Investor Default Amount for the related Monthly Period and (b)
the Class B Floating Allocation applicable for the related Monthly
Period.
"Class B Investor Interest" shall mean, on any date of
determination, an amount equal to (a) the Class B Initial Investor
Interest, minus (b) the aggregate amount of principal payments made to
Class B Certificateholders prior to such date, minus (c) the aggregate
amount of Class B Investor Charge-Offs for all prior Transfer Dates
pursuant to subsection 4.10(b), minus (d) the amount of the Reallocated
Class B Principal Collections allocated pursuant to subsection 4.12(a)
on all prior Transfer Dates for which the Collateral Interest has not
been reduced, minus (e) an amount equal to the amount by which the Class
B Investor Interest has been reduced on all prior Transfer Dates
pursuant to subsection 4.10(a) and plus (f) the aggregate amount of
Excess Spread allocated and available on all prior Transfer Dates
pursuant to subsection 4.11(d) for the purpose of reimbursing amounts
deducted pursuant to the foregoing clauses (c), (d) and (e); provided,
however, that the Class B Investor Interest may not be reduced below
zero.
"Class B Monthly Interest" shall mean the monthly interest
distributable in respect of the Class B Certificates as calculated in
accordance with subsection 4.06(b).
"Class B Monthly Principal" shall mean the monthly principal
distributable in respect of the Class B Certificates as calculated in
accordance with subsection 4.07(b).
"Class B Required Amount" shall have the meaning specified
in subsection 4.08(b).
"Class B Servicing Fee" shall have the meaning specified in
subsection 3(a) hereof.
"Closing Date" shall mean June 18, 1997.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Collateral Allocation" shall mean with respect to any
Monthly Period, (a) with respect to Default Amounts and Finance Charge
Receivables at any time or Principal Receivables during the Revolving
Period, the Collateral Floating Allocation, and (b) with respect to
Principal Receivables during the Controlled Accumulation Period, the
Rapid Accumulation Period or the Rapid Amortization Period, the
Collateral Fixed Allocation.
"Collateral Available Funds" shall mean, with respect to any
Monthly Period, an amount equal to the Collateral Floating Allocation of
the Collections of Finance Charge Receivables and amounts with respect
to Annual Membership Fees allocated to the Investor Certificates and
deposited in the Finance Charge Account for such Monthly Period (or to
be deposited in the Finance Charge Account on the related Transfer Date
with respect to the preceding Monthly Period pursuant to the third
paragraph of subsection 4.03(a) and Section 2.08 of the Agreement and
subsection 3(b) of this Series Supplement), excluding the portion of
Collections of Finance Charge Receivables attributable to Servicer
Interchange.
"Collateral Charge-Offs" shall have the meaning specified in
subsection 4.10(c).
"Collateral Default Amount" shall mean, with respect to any
Transfer Date, an amount equal to the product of (a) the Aggregate
Investor Default Amount for the related Monthly Period and (b) the
Collateral Floating Allocation applicable for the related Monthly
Period.
"Collateral Fixed Allocation" shall mean with respect to any
Monthly Period following the Revolving Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction, the numerator
of which is the Collateral Interest as of the close of business on the
last day of the Revolving Period and the denominator of which is equal
to the Investor Interest as of the close of business on the last day of
the Revolving Period.
"Collateral Floating Allocation" shall mean, with respect to
any Monthly Period, the percentage equivalent (which percentage shall
never exceed 100%) of a fraction, the numerator of which is the
Collateral Interest as of the close of business on the last day of the
preceding Monthly Period and the denominator of which is equal to the
Adjusted Investor Interest as of the close of business on such day;
provided, however, that, with respect to the first Monthly Period, the
Collateral Floating Allocation shall mean the percentage equivalent of a
fraction, the numerator of which is the Collateral Initial Interest and
the denominator of which is the Initial Investor Interest.
"Collateral Initial Interest" shall mean $53,000,000.
"Collateral Interest" shall mean, on any date of
determination, a fractional undivided interest in the Trust which shall
consist of the right to receive, to the extent necessary to make the
required payments to the Collateral Interest Holder under this Series
Supplement, the portion of Collections allocable thereto under the
Agreement and this Series Supplement, and funds on deposit in the
Collection Account allocable thereto pursuant to the Agreement and this
Series Supplement; provided that, with respect to any date, the
Collateral Interest shall be an amount equal to (a) the Collateral
Initial Interest, minus (b) the aggregate amount of principal payments
made to the Collateral Interest Holder prior to such date, minus (c) the
aggregate amount of Collateral Charge-Offs for all prior Transfer Dates
pursuant to subsection 4.10(c), minus (d) the amount of Reallocated
Principal Collections allocated pursuant to subsections 4.12(a) and (b)
on all prior Transfer Dates, minus (e) an amount equal to the amount by
which the Collateral Interest has been reduced on all prior Transfer
Dates pursuant to subsections 4.10(a) and (b), and plus (f) the
aggregate amount of Excess Spread allocated and available on all prior
Transfer Dates pursuant to subsection 4.11(h) for the purpose of
reimbursing amounts deducted pursuant to the foregoing clauses (c), (d)
and (e); provided further, however, that the Collateral Interest may not
be reduced below zero.
"Collateral Interest Holder" shall mean the entity so
designated in the Loan Agreement.
"Collateral Interest Servicing Fee" shall have the meaning
specified in subsection 3(a) hereof.
"Collateral Monthly Interest" shall mean the monthly
interest distributable in respect of the Collateral Interest as
calculated in accordance with subsection 4.06(c).
"Collateral Monthly Principal" shall mean the monthly
principal distributable in respect of the Collateral Interest as
calculated in accordance with subsection 4.07(c).
"Collateral Rate" shall mean, for any Interest Period, the
rate specified in the Loan Agreement.
"Controlled Accumulation Amount" shall mean for any Transfer
Date with respect to the Controlled Accumulation Period,
$54,416,666.67; provided, however, that if the Accumulation Period
Length is determined to be less than 12 months pursuant to subsection
4.09(j), the Controlled Accumulation Amount for each Transfer Date with
respect to the Controlled Accumulation Period will be equal to (i) the
product of (x) the sum of (1) the Class A Initial Investor Interest and
(2) the Class B Initial Investor Interest and (y) the Accumulation
Period Factor for such Monthly Period divided by (ii) the Required
Accumulation Factor Number.
"Controlled Accumulation Period" shall mean, unless a Pay
Out Event shall have occurred prior thereto, the period commencing at
the close of business on May 31, 2001 or such later date as is
determined in accordance with subsection 4.09(j) and ending on the first
to occur of (a) a Pay Out Commencement Date and (b) the Series 1997-F
Termination Date.
"Controlled Deposit Amount" shall mean, with respect to any
Transfer Date, the sum of (a) the Controlled Accumulation Amount for
such Transfer Date and (b) any existing Accumulation Shortfall.
"Covered Amount" shall mean an amount, determined as of each
Transfer Date with respect to the Controlled Accumulation Period or the
Rapid Accumulation Period and the first Transfer Date with respect to
the Rapid Amortization Period, equal to the sum of (a) the product of
(i) a fraction, the numerator of which is the actual number of days in
such Interest Period, or, in the event the Interest Rate Swap has been
terminated, the numerator of which is 30, and, in either case, the
denominator of which is 360, times (ii) the Swap Floating Rate, or, in
the event the Interest Rate Swap has been terminated, the Class A
Certificate Rate, in either case, in effect with respect to such
Interest Period, times (iii) the aggregate amount on deposit in the
Principal Funding Account with respect to Class A Monthly Principal as
of the Record Date preceding such Transfer Date plus (b) the product of
(i) a fraction, the numerator of which is the actual number of days in
such Interest Period and the denominator of which is 360, times (ii) the
Class B Certificate Rate in effect with respect to such Interest Period
times (iii) the aggregate amount on deposit in the Principal Funding
Account with respect to Class B Monthly Principal as of the Record Date
preceding such Transfer Date.
"Credit Enhancement" shall mean (a) with respect to the
Class A Certificates, the subordination of the Class B Certificates and
the Collateral Interest, and (b) with respect to the Class B
Certificates, the subordination of the Collateral Interest.
"Credit Enhancement Provider" shall mean the Collateral
Interest Holder.
"Cumulative Series Principal Shortfall" shall mean the sum
of the Series Principal Shortfalls (as such term is defined in each of
the related Series Supplements) for each Series in Group One.
"Daily Principal Shortfall" shall mean, on any date of
determination, the excess of the Group One Monthly Principal Payment for
the Monthly Period relating to such date over the month to date amount
of Collections processed in respect of Principal Receivables for such
Monthly Period allocable to investor certificates of all outstanding
Series in Group One, not subject to reallocation, which are on deposit
or to be deposited in the Principal Account on such date.
"Distribution Date" shall mean August 15, 1997 and the
fifteenth day of each calendar month thereafter, or if such fifteenth
day is not a Business Day, the next succeeding Business Day.
"Excess Principal Funding Investment Proceeds" shall mean,
as of each Transfer Date with respect to the Controlled Accumulation
Period and the Rapid Accumulation Period and the first Transfer Date
with respect to the Rapid Amortization Period, the amount, if any, by
which the Principal Funding Investment Proceeds for such Transfer Date
exceed the Covered Amount determined on such Transfer Date.
"Excess Spread" shall mean, with respect to any Transfer
Date, the sum of the amounts with respect to such Transfer Date, if any,
specified pursuant to subsections 4.09(a)(v), 4.09(b)(iii) and
4.09(c)(ii).
"Fitch" shall mean Fitch Investors Service, L.P. or its
successors.
"Fixed Amount" shall mean, for any Transfer Date, an amount
equal to the fixed amount payable by the Swap Counterparty to the Trust
for such date pursuant to the Interest Rate Swap.
"Fixed Investor Percentage" shall mean, with respect to any
Monthly Period, the percentage equivalent of a fraction, the numerator
of which is the Investor Interest as of the close of business on the
last day of the Revolving Period and the denominator of which is the
greater of (a) the aggregate amount of Principal Receivables in the
Trust determined as of the close of business on the last day of the
prior Monthly Period and (b) the sum of the numerators used to calculate
the Investor Percentages (as such term is defined in the Agreement) for
allocations with respect to Principal Receivables for all outstanding
Series on such date of determination; provided, however, that with
respect to any Monthly Period in which an Addition Date occurs or in
which a Removal Date occurs on which, if any Series has been paid in
full, Principal Receivables in an aggregate amount approximately equal
to the initial investor interest of such Series are removed from the
Trust, the denominator determined pursuant to clause (a) hereof shall be
(i) the aggregate amount of Principal Receivables in the Trust as of the
close of business on the last day of the prior Monthly Period for the
period from and including the first day of such Monthly Period to but
excluding the related Addition Date or Removal Date and (ii) the
aggregate amount of Principal Receivables in the Trust as of the
beginning of the day on the related Addition Date or Removal Date after
adjusting for the aggregate amount of Principal Receivables added to or
removed from the Trust on the related Addition Date or Removal Date, for
the period from and including the related Addition Date or Removal Date
to and including the last day of such Monthly Period.
"Floating Amount" shall mean, for any Transfer Date, an
amount equal to the floating amount payable by the Trust to the Swap
Counterparty for such date pursuant to the Interest Rate Swap minus the
Payment Carryforward Amount for such date.
"Floating Investor Percentage" shall mean, with respect to
any Monthly Period, the percentage equivalent of a fraction, the
numerator of which is the Adjusted Investor Interest as of the close of
business on the last day of the preceding Monthly Period (or with
respect to the first Monthly Period, the Initial Investor Interest) and
the denominator of which is the greater of (a) the aggregate amount of
Principal Receivables as of the close of business on the last day of the
preceding Monthly Period (or with respect to the first calendar month in
the first Monthly Period, the aggregate amount of Principal Receivables
in the Trust as of the close of business on the day immediately
preceding the Closing Date and, with respect to the second calendar
month in the first Monthly Period, the aggregate amount of Principal
Receivables as of the close of business on the last day of the first
calendar month in the first Monthly Period), and (b) the sum of the
numerators used to calculate the Investor Percentages (as such term is
defined in the Agreement) for allocations with respect to Finance Charge
Receivables, Default Amounts or Principal Receivables, as applicable,
for all outstanding Series on such date of determination; provided,
however, that with respect to any Monthly Period in which an Addition
Date occurs or in which a Removal Date occurs on which, if any Series
has been paid in full, Principal Receivables in an aggregate amount
approximately equal to the initial investor interest of such Series are
removed from the Trust, the denominator determined pursuant to clause
(a) hereof shall be (i) the aggregate amount of Principal Receivables in
the Trust as of the close of business on the last day of the prior
Monthly Period for the period from and including the first day of such
Monthly Period to but excluding the related Addition Date or Removal
Date and (ii) the aggregate amount of Principal Receivables in the Trust
as of the beginning of the day on the related Addition Date or Removal
Date after adjusting for the aggregate amount of Principal Receivables
added to or removed from the Trust on the related Addition Date or
Removal Date, for the period from and including the related Addition
Date or Removal Date to and including the last day of such Monthly
Period.
"Group One" shall mean Series 1997-F and each other Series
specified in the related Supplement to be included in Group One.
"Group One Monthly Principal Payment" shall mean with
respect to any Monthly Period, for all Series in Group One (including
Series 1997-F) which are in an Amortization Period or Accumulation
Period (as such terms are defined in the related Supplements for all
Series in Group One), the sum of (a) the Controlled Distribution Amount
for the related Transfer Date for any Series in its Controlled
Amortization Period (as such terms are defined in the related
Supplements for all Series in Group One), (b) the Controlled Deposit
Amount for the related Transfer Date for any Series in its Accumulation
Period, other than its Rapid Accumulation Period, if applicable (as such
terms are defined in the related Supplements for all Series in Group
One), (c) the Investor Interest as of the end of the prior Monthly
Period taking into effect any payments to be made on the following
Distribution Date for any Series in Group One in its Principal
Amortization Period or Rapid Amortization Period (as such terms are
defined in the related Supplements for all Series in Group One), (d) the
Adjusted Investor Interest as of the end of the prior Monthly Period
taking into effect any payments or deposits to be made on the following
Transfer Date and Distribution Date for any Series in Group One in its
Rapid Accumulation Period (as such terms are defined in the related
Supplements for all Series in Group One), (e) unless such Series is in
its Rapid Accumulation Period, the excess of the Collateral Interest as
of the Transfer Date occurring in such Monthly Period over the Required
Collateral Interest for the related Transfer Date, assuming no
Accumulation Shortfall (as such terms are defined in the related
Supplements for all Series in Group One) and (f) such other amounts as
may be specified in the related Supplements for all Series in Group One.
"Initial Investor Interest" shall mean $706,000,000.
"Initial Swap Reserve Fund Deposit" shall have the meaning
specified in the Supplemental Swap Letter.
"Interest Period" shall mean, with respect to any
Distribution Date, (a) with respect to the Class A Certificates and the
Class B Certificates, the period from and including the previous
Distribution Date (or in the case of the first Distribution Date, from
and including the Closing Date) through the day preceding such
Distribution Date and (b) with respect to the Collateral Interest, the
period from and including the Transfer Date related to the immediately
preceding Distribution Date (or in the case of the first Distribution
Date, from and including the Closing Date) to but excluding the Transfer
Date related to such Distribution Date.
"Interest Rate Swap" shall mean the interest rate exchange
agreement, dated as of June 18, 1997 between the Trustee on behalf of
the Trust and the Swap Counterparty, as such Interest Rate Swap may be
amended, modified or replaced.
"Interest Reserve Account" shall have the meaning specified
in subsection 4.19(g).
"Interest Reserve Account Event" shall have the meaning
specified in subsection 4.19(g).
"Investor Certificateholder" shall mean (a) with respect to
the Class A Certificates, the holder of record of a Class A Certificate,
(b) with respect to the Class B Certificates, the holder of record of a
Class B Certificate and (c) with respect to the Collateral Interest, the
Collateral Interest Holder.
"Investor Certificates" shall mean the Class A Certificates,
the Class B Certificates and the Collateral Interest.
"Investor Default Amount" shall mean, with respect to any
Receivable in a Defaulted Account, an amount equal to the product of (a)
the Default Amount and (b) the Floating Investor Percentage on the day
such Account became a Defaulted Account.
"Investor Interest" shall mean, on any date of
determination, an amount equal to the sum of (a) the Class A Investor
Interest, (b) the Class B Investor Interest and (c) the Collateral
Interest, each as of such date.
"Investor Percentage" shall mean for any Monthly Period, (a)
with respect to Finance Charge Receivables and Default Amounts at any
time and Principal Receivables during the Revolving Period, the Floating
Investor Percentage and (b) with respect to Principal Receivables during
the Controlled Accumulation Period, the Rapid Accumulation Period or the
Rapid Amortization Period, the Fixed Investor Percentage.
"Investor Principal Collections" shall mean, with respect to
any Monthly Period, the sum of (a) the aggregate amount deposited into
the Principal Account for such Monthly Period pursuant to subsections
4.05(a)(ii), (iii) and (iv), 4.05(b)(ii), (iii) and (iv), 4.05(c)(ii) or
4.05(d)(ii), in each case, as applicable to such Monthly Period, (b) the
aggregate amount to be treated as Investor Principal Collections
pursuant to subsections 4.09(a)(iv) and 4.11(a), (b), (c), (d), (g) and
(h) for such Monthly Period (other than such amount paid from
Reallocated Principal Collections), and (c) the aggregate amount of
Unallocated Principal Collections deposited into the Principal Account
pursuant to subsection 4.05(e).
"Investor Servicing Fee" shall have the meaning specified in
subsection 3(a) hereof.
"LIBOR" shall mean, for any Interest Period, the London
interbank offered rate for one-month United States dollar deposits
determined by the Trustee on the LIBOR Determination Date for each
Interest Period in accordance with the provisions of Section 4.17.
"LIBOR Determination Date" shall mean June 16, 1997 for the
period from the Closing Date through July 14, 1997, July 11, 1997 for
the period from July 15, 1997 through August 14, 1997 and the second
London Business Day prior to the commencement of the second and each
subsequent Interest Period.
"Loan Agreement" shall mean the agreement among the Seller,
the Servicer, the Trustee, and the Collateral Interest Holder, dated as
of June 18, 1997, as amended or modified from time to time.
"London Business Day" shall mean any Business Day on which
dealings in deposits in United States dollars are transacted in the
London interbank market.
"Monthly Interest" shall mean, with respect to any Transfer
Date, the sum of (a) the Class A Monthly Interest, the Class A
Additional Interest, if any, and the unpaid Class A Deficiency Amount,
if any, (b) the Class B Monthly Interest, the Class B Additional
Interest, if any, and the unpaid Class B Deficiency Amount, if any, (c)
the Collateral Monthly Interest, and (d) the Net Swap Payment, if any,
and previously due but not paid Net Swap Payments, if any, each with
respect to such Transfer Date.
"Monthly Period" shall have the meaning specified in the
Agreement, except that the first Monthly Period with respect to the
Investor Certificates shall begin on and include the Closing Date and
shall end on and include July 31, 1997.
"Net Servicing Fee Rate" shall mean (a) so long as the
Seller or The Bank of New York is the Servicer, 1.25% per annum and (b)
if the Seller or The Bank of New York is no longer the Servicer, 2.0%
per annum.
"Net Swap Payment" shall mean, for any Transfer Date, (a) if
the netting provisions of subsection 2(c)(ii) of the Interest Rate Swap
apply, the amount by which the Floating Amount for such date exceeds the
Fixed Amount for such date, and (b) otherwise, an amount equal to the
Floating Amount for such date.
"Net Swap Receipt" shall mean, for any Transfer Date, (a) if
the netting provisions of subsection 2(c)(ii) of the Interest Rate Swap
apply, the amount by which the Fixed Amount for such date exceeds the
Floating Amount for such date, and (b) otherwise, an amount equal to the
Fixed Amount for such date.
"Notional Amount" shall mean the Notional Amount as defined
in the Interest Rate Swap.
"Payment Carryforward Amount" shall mean, for any Transfer
Date, the amount by which the Swap Reserve Draw Amount, if any, exceeds
the amount withdrawn from the Swap Reserve Fund for such date pursuant
to subsection 4.16(d).
"Pay Out Commencement Date" shall mean the date on which a
Trust Pay Out Event is deemed to occur pursuant to Section 9.01 or a
Series 1997-F Pay Out Event is deemed to occur pursuant to Section 9
hereof.
"Portfolio Adjusted Yield" shall mean, with respect to any
Transfer Date, the average of the percentages obtained for each of the
three preceding Monthly Periods by subtracting the Base Rate from the
Portfolio Yield for such Monthly Period and deducting 0.5% from the
result for each Monthly Period.
"Portfolio Yield" shall mean, with respect to any Monthly
Period, the annualized percentage equivalent of a fraction, the
numerator of which is an amount equal to the sum of (a) the amount of
Collections of Finance Charge Receivables deposited into the Finance
Charge Account and allocable to the Investor Certificates for such
Monthly Period and (b) the amount with respect to Annual Membership Fees
deposited into the Finance Charge Account and allocable to the Investor
Certificates for such Monthly Period, (c) the Principal Funding
Investment Proceeds deposited into the Finance Charge Account on the
Transfer Date related to such Monthly Period, (d) the amount of the
Reserve Draw Amount (up to the Available Reserve Account Amount) plus
any amounts of interest and earnings described in subsection 4.15, each
deposited into the Finance Charge Account on the Transfer Date relating
to such Monthly Period, (e) the amount of the Swap Reserve Draw Amount
(up to the Available Swap Reserve Fund Amount) deposited into the
Finance Charge Account on the Transfer Date relating to such Monthly
Period, and (f) any amount deposited to the Finance Charge Account from
the Interest Reserve Account on the related Transfer Date pursuant to
Section 4.20, such sum to be calculated on a cash basis after
subtracting the Aggregate Investor Default Amount for such Monthly
Period, and the denominator of which is the Investor Interest as of the
close of business on the last day of such Monthly Period.
"Principal Funding Account" shall have the meaning set forth
in subsection 4.14(a).
"Principal Funding Account Balance" shall mean, with respect
to any date of determination, the principal amount, if any, on deposit
in the Principal Funding Account on such date of determination.
"Principal Funding Investment Proceeds" shall mean, with
respect to each Transfer Date, the investment earnings on funds in the
Principal Funding Account (net of investment expenses and losses) for
the period from and including the immediately preceding Transfer Date to
but excluding such Transfer Date.
"Principal Funding Investment Shortfall" shall mean, as of
each Transfer Date with respect to the Controlled Accumulation Period
and the Rapid Accumulation Period and the first Transfer Date with
respect to the Rapid Amortization Period, the amount, if any, by which
the Principal Funding Investment Proceeds for such Transfer Date are
less than the Covered Amount determined as of such Transfer Date.
"Rapid Accumulation Period" shall mean, unless the Interest
Rate Swap has been terminated or an Interest Reserve Account Event has
occurred, the period commencing on a Series 1997-F Pay Out Event and
continuing to the earlier of (a) the commencement of the Rapid
Amortization Period and (b) the Scheduled Payment Date.
"Rapid Amortization Period" shall mean the Amortization
Period commencing on the earlier of the day on which either (a) a Trust
Pay Out Event occurs or (b) (i) a Series 1997-F Pay Out Event occurs or
has occurred and (ii) either the Interest Rate Swap is or has been
terminated or an Interest Reserve Account Event occurs or has occurred
and ending on the earlier to occur of (a) the Series 1997-F Termination
Date and (b) the termination of the Trust pursuant to Section 12.01.
"Rating Agency" shall mean Moody's and Standard & Poor's.
"Rating Agency Condition" shall mean the notification in
writing by each Rating Agency to the Seller, the Servicer and the
Trustee that an action will not result in any Rating Agency reducing or
withdrawing its then existing rating of the investor certificates of any
outstanding Series or class of a Series with respect to which it is a
Rating Agency.
"Reallocated Class B Principal Collections" shall mean, with
respect to any Transfer Date, Collections of Principal Receivables
applied in accordance with subsection 4.12(a) in an amount not to exceed
the product of (a) the Class B Investor Allocation with respect to the
Monthly Period relating to such Transfer Date and (b) the Investor
Percentage with respect to the Monthly Period relating to such Transfer
Date and (c) the amount of Collections of Principal Receivables with
respect to the Monthly Period relating to such Transfer Date; provided,
however, that such amount shall not exceed the Class B Investor Interest
after giving effect to any Class B Investor Charge-Offs for such
Transfer Date.
"Reallocated Collateral Principal Collections" shall mean,
with respect to any Transfer Date, Collections of Principal Receivables
applied in accordance with subsections 4.12(a) and (b) in an amount not
to exceed the product of (a) the Collateral Allocation with respect to
the Monthly Period relating to such Transfer Date and (b) the Investor
Percentage with respect to the Monthly Period relating to such Transfer
Date and (c) the amount of Collections of Principal Receivables with
respect to the Monthly Period relating to such Transfer Date; provided,
however, that such amount shall not exceed the Collateral Interest after
giving effect to any Collateral Charge-Offs for such Transfer Date.
"Reallocated Principal Collections" shall mean the sum of
(a) Reallocated Class B Principal Collections and (b) Reallocated
Collateral Principal Collections.
"Reference Banks" shall mean four major banks in the London
interbank market selected by the Servicer.
"Required Accumulation Factor Number" shall be equal to a
fraction, rounded upwards to the nearest whole number, the numerator of
which is one and the denominator of which is equal to the lowest monthly
principal payment rate on the Accounts, expressed as a decimal, for the
12 months preceding the date of such calculation; provided, however,
that this definition may be changed at any time if the Rating Agency
Condition is satisfied.
"Required Collateral Interest" shall mean (a) initially,
$53,000,000 and (b) on any Transfer Date thereafter, 7.5% of the sum of
the Class A Adjusted Investor Interest and the Class B Adjusted Investor
Interest on such Transfer Date, after taking into account deposits into
the Principal Funding Account on such Transfer Date and payments to be
made on the related Distribution Date, and the Collateral Interest on
the prior Transfer Date, after any adjustments to be made on such date,
but not less than $21,180,000; provided, however, that (w)
notwithstanding clause (x) below, if the Principal Funding Account
Balance equals the Class A Investor Interest (taking into account any
deposits to be made on such Transfer Date) and the Class B Investor
Interest will be reduced to zero on the related Distribution Date, the
Required Collateral Interest for any Transfer Date shall be equal to
zero; (x) if either (i) there is a reduction in the Collateral Interest
pursuant to clause (c), (d) or (e) of the definition of such term or
(ii) the Rapid Amortization Period has commenced, the Required
Collateral Interest for any Transfer Date shall equal the Required
Collateral Interest for the Transfer Date immediately preceding such
reduction or such commencement of the Rapid Amortization Period, (y) in
no event shall the Required Collateral Interest exceed the sum of the
outstanding principal amounts of (i) the Class A Certificates and (ii)
the Class B Certificates, each as of the last day of the Monthly Period
preceding such Transfer Date after taking into account the payments to
be made on the related Distribution Date and (z) the Required Collateral
Interest may be reduced at the Seller's option at any time to a lesser
amount if the Seller, the Servicer, the Collateral Interest Holder and
the Trustee have been provided evidence that the Rating Agency Condition
shall have been satisfied.
"Required Interest Reserve Amount" shall have the meaning
specified in subsection 4.19(g).
"Required Reserve Account Amount" shall mean, with respect
to any Transfer Date on or after the Reserve Account Funding Date, an
amount equal to (a) 0.5% of the outstanding principal balance of the
Class A Certificates or (b) any other amount designated by the Seller;
provided, however, that if such designation is of a lesser amount, the
Seller shall (i) provide the Servicer, the Collateral Interest Holder
and the Trustee with evidence that the Rating Agency Condition shall
have been satisfied and (ii) deliver to the Trustee a certificate of an
authorized officer to the effect that, based on the facts known to such
officer at such time, in the reasonable belief of the Seller, such
designation will not cause a Pay Out Event or an event that, after the
giving of notice or the lapse of time, would cause a Pay Out Event to
occur with respect to Series 1997-F.
"Required Swap Reserve Fund Amount" shall have the meaning
specified in the Supplemental Swap Letter.
"Reserve Account" shall have the meaning specified in
subsection 4.15(a).
"Reserve Account Funding Date" shall mean the Transfer Date
which occurs not later than the earliest of (a) the Transfer Date with
respect to the Monthly Period which commences 3 months prior to the
commencement of the Controlled Accumulation Period; (b) the first
Transfer Date for which the Portfolio Adjusted Yield is less than 2%,
but in such event the Reserve Account Funding Date shall not be required
to occur earlier than the Transfer Date with respect to the Monthly
Period which commences 12 months prior to the commencement of the
Controlled Accumulation Period; (c) the first Transfer Date for which
the Portfolio Adjusted Yield is less than 3%, but in such event the
Reserve Account Funding Date shall not be required to occur earlier than
the Transfer Date with respect to the Monthly Period which commences 6
months prior to the commencement of the Controlled Accumulation Period;
and (d) the first Transfer Date for which the Portfolio Adjusted Yield
is less than 4%, but in such event the Reserve Account Funding Date
shall not be required to occur earlier than the Transfer Date with
respect to the Monthly Period which commences 4 months prior to the
commencement of the Controlled Accumulation Period.
"Reserve Account Surplus" shall mean, as of any Transfer
Date following the Reserve Account Funding Date, the amount, if any, by
which the amount on deposit in the Reserve Account exceeds the Required
Reserve Account Amount.
"Reserve Draw Amount" shall have the meaning specified in
subsection 4.15(c).
"Revolving Period" shall mean the period from and including
the Closing Date to, but not including, the earlier of (a) the day the
Controlled Accumulation Period commences and (b) the Pay Out
Commencement Date.
"Scheduled Payment Date" shall mean the June 2002
Distribution Date.
"Series 1997-F" shall mean the Series of the MBNA Master
Credit Card Trust II represented by the Investor Certificates.
"Series 1997-F Certificateholders" shall mean the holder of
record of a Series 1997-F Certificate.
"Series 1997-F Certificates" shall mean the Class A
Certificates and the Class B Certificates.
"Series 1997-F Pay Out Event" shall have the meaning
specified in Section 9 hereof.
"Series 1997-F Termination Date" shall mean the earliest to
occur of (a) the Distribution Date on which the Investor Interest is
paid in full, (b) the November 2004 Distribution Date and (c) the Trust
Termination Date.
"Series Principal Shortfall" shall mean with respect to any
Transfer Date, the excess, if any, of (a) (i) with respect to any
Transfer Date relating to the Controlled Accumulation Period, the sum of
(A) the Controlled Deposit Amount for such Transfer Date, and (B) the
excess, if any, of the Collateral Interest for such Transfer Date over
the Required Collateral Interest for such Transfer Date and (ii) with
respect to any Transfer Date relating to the Rapid Accumulation Period
or the Rapid Amortization Period, the Adjusted Investor Interest over
(b) the Investor Principal Collections minus the Reallocated Principal
Collections for such Transfer Date.
"Series Servicing Fee Percentage" shall mean 2.0%.
"Servicer Interchange" shall mean, for any Transfer Date,
the portion of Collections of Finance Charge Receivables allocated to
the Investor Certificates and deposited in the Finance Charge Account
with respect to the related Monthly Period that is attributable to
Interchange; provided, however, that Servicer Interchange for any
Transfer Date shall not exceed one-twelfth of the product of (i) the
Adjusted Investor Interest as of the last day of the related Monthly
Period and (ii) 0.75%; provided further, however, with respect to the
first Transfer Date, the Servicer Interchange may equal but shall not
exceed $632,458.33.
"Shared Principal Collections" shall mean, with respect to
any Transfer Date, either (a) the amount allocated to the Investor
Certificates which may be applied to the Series Principal Shortfall with
respect to other outstanding Series in Group One or (b) the amounts
allocated to the investor certificates of other Series in Group One
which the applicable Supplements for such Series specify are to be
treated as "Shared Principal Collections" and which may be applied to
cover the Series Principal Shortfall with respect to the Investor
Certificates.
"Supplemental Swap Letter" shall mean that certain letter
agreement designated as the Supplemental Swap Letter, dated as of June
18, 1997, between the Seller, the Trustee and the Swap Counterparty.
"Swap Counterparty" shall have the meaning specified in the
Interest Rate Swap.
"Swap Fixed Rate" shall mean for any applicable Interest
Period, the fixed rate specified in the Interest Rate Swap.
"Swap Floating Rate" shall mean for any applicable Interest
Period, the floating rate specified in the Interest Rate Swap.
"Swap Reserve Draw Amount" shall have the meaning specified
in subsection 4.16(c).
"Swap Reserve Fund" shall have the meaning specified in
subsection 4.16(a).
"Swap Reserve Fund Surplus" shall mean, as of any Transfer
Date, the amount, if any, by which the amount on deposit in the Swap
Reserve Fund exceeds the Required Swap Reserve Fund Amount.
"Telerate Page 3750" shall mean the display page currently
so designated on the Dow Jones Telerate Service (or such other page as
may replace that page on that service for the purpose of displaying
comparable rates or prices).
"Unallocated Principal Collections" shall have the meaning
specified in subsection 4.05(e).
(2) The share of the Servicing Fee allocable to Series 1997-F
with respect to any Transfer Date (the "Investor Servicing Fee") shall
be equal to one-twelfth of the product of (i) the Series Servicing Fee
Percentage and (ii) the Adjusted Investor Interest as of the last day
of the Monthly Period preceding such Transfer Date; provided, however,
that with respect to the first Transfer Date, the Investor Servicing Fee
shall be equal to $1,686,555.56. On each Transfer Date for which the
Seller or The Bank of New York is the Servicer, the Servicer
Interchange with respect to the related Monthly Period that is on
deposit in the Finance Charge Account shall be withdrawn from the
Finance Charge Account and paid to the Servicer in payment of a portion
of the Investor Servicing Fee with respect to such Monthly Period.
Should the Servicer Interchange on deposit in the Finance Charge Account
on any Transfer Date with respect to the related Monthly Period be less
than one-twelfth of 0.75% of the Adjusted Investor Interest as of the
last day of such Monthly Period, the Investor Servicing Fee with respect
to such Monthly Period will not be paid to the extent of such
insufficiency of Servicer Interchange on deposit in the Finance Charge
Account. The Servicer Interchange with respect to the first Transfer
Date may equal but shall not exceed $632,458.33. The share of the
Investor Servicing Fee allocable to the Class A Investor Interest with
respect to any Transfer Date (the "Class A Servicing Fee") shall be
equal to one-twelfth of the product of (i) the Class A Floating
Allocation, (ii) the Net Servicing Fee Rate and (iii) the Adjusted
Investor Interest as of the last day of the Monthly Period preceding
such Transfer Date; provided, however, that with respect to the first
Transfer Date, the Class A Servicing Fee shall be equal to $895,833.33.
The share of the Investor Servicing Fee allocable to the Class B
Investor Interest with respect to any Transfer Date (the "Class B
Servicing Fee") shall be equal to one-twelfth of the product of (i) the
Class B Floating Allocation, (ii) the Net Servicing Fee Rate and (iii)
the Adjusted Investor Interest as of the last day of the Monthly Period
preceding such Transfer Date; provided, however, that with respect to
the first Transfer Date, the Class B Servicing Fee shall be equal to
$79,131.95. The share of the Investor Servicing Fee allocable to the
Collateral Interest with respect to any Transfer Date (the "Collateral
Interest Servicing Fee," and together with the Class A Servicing Fee and
the Class B Servicing Fee, the "Certificateholder Servicing Fee") shall
be equal to one-twelfth of the product of (i) the Collateral Floating
Allocation, (ii) the Net Servicing Fee Rate and (iii) the Adjusted
Investor Interest as of the last day of the Monthly Period preceding
such Transfer Date; provided, however, that with respect to the first
Transfer Date, the Collateral Interest Servicing Fee shall be equal to
$79,131.95. Except as specifically provided above, the Servicing Fee
shall be paid by the cash flows from the Trust allocated to the Seller
or the certificateholders of other Series (as provided in the related
Supplements) and in no event shall the Trust, the Trustee or the
Investor Certificateholders be liable therefor. The Class A Servicing
Fee shall be payable to the Servicer solely to the extent amounts are
available for distribution in respect thereof pursuant to subsections
4.09(a)(iii) and 4.11(a). The Class B Servicing Fee shall be payable
solely to the extent amounts are available for distribution in respect
thereof pursuant to subsections 4.09(b)(ii) and 4.11(c). The Collateral
Interest Servicing Fee shall be payable solely to the extent amounts are
available for distribution in respect thereof pursuant to subsection
4.11(f) or, if applicable, subsection 4.09(c)(i).
(3) On or before each Transfer Date, the Seller shall
notify the Servicer of the amount of Interchange to be included as
Collections of Finance Charge Receivables and allocable to the Investor
Certificateholders with respect to the preceding Monthly Period as
determined pursuant to this subsection 3(b). Such amount of Interchange
shall be equal to the product of (i) the total amount of Interchange
paid or payable to the Seller with respect to such Monthly Period, (ii)
a fraction the numerator of which is the aggregate amount of cardholder
charges for goods and services in the Accounts with respect to such
Monthly Period and the denominator of which is the aggregate amount of
cardholder charges for goods and services in all MasterCard and VISA
consumer revolving credit card accounts owned by the Seller with respect
to such Monthly Period and (iii) the Investor Percentage with regard to
Finance Charge Receivables. On each Transfer Date, the Seller shall pay
to the Servicer, and the Servicer shall deposit into the Finance Charge
Account, in immediately available funds, the amount of Interchange to be
so included as Collections of Finance Charge Receivables allocable to
the Investor Certificates with respect to the preceding Monthly Period.
The Seller hereby assigns, sets-over, conveys, pledges and grants a
security interest and lien to the Trustee for the benefit of the
Investor Certificateholders in Interchange and the proceeds of
Interchange, as set forth in this subsection 3(b). In connection with
the foregoing grant of a security interest, this Series Supplement shall
constitute a security agreement under applicable law. To the extent
that a Supplement for a related Series, other than Series 1997-F,
assigns, sets-over, conveys, pledges or grants a security interest in
Interchange allocable to the Trust, all Investor Certificates of any
such Series (except as otherwise specified in any such Supplement) and
the Investor Certificates shall rank pari passu and be equally and
ratably entitled as provided herein to the benefits of such Interchange
without preference or priority on account of the actual time or times of
authentication and delivery, all in accordance with the terms and
provisions of this Series Supplement and other related Supplements.
SECTION 4. Reassignment and Transfer Terms. The Investor
Certificates shall be subject to retransfer to the Seller at its option,
in accordance with the terms specified in subsection 12.02(a), on any
Distribution Date on or after the Distribution Date on which the
Investor Interest is reduced to an amount less than or equal to 5% of
the Initial Investor Interest. The deposit required in connection with
any such repurchase shall include the amount, if any, on deposit in the
Principal Funding Account and will be equal to the sum of (a) the
Investor Interest and (b) accrued and unpaid interest on the Investor
Certificates through the day preceding the Distribution Date on which
the repurchase occurs.
SECTION 5. Delivery and Payment for the Certificates. The
Seller shall execute and deliver the Series 1997-F Certificates to the
Trustee for authentication in accordance with Section 6.01 of the
Agreement. The Trustee shall deliver such Certificates when
authenticated in accordance with Section 6.02 of the Agreement.
SECTION 6. Depository; Form of Delivery of Investor
Certificates.
(a) The Class A Certificates and the Class B Certificates
shall be delivered as Book-Entry Certificates as provided in Sections
6.01 and 6.10 of the Agreement.
(b) The Depository for Series 1997-F shall be The
Depository Trust Company, and the Class A Certificates and Class B
Certificates shall be initially registered in the name of Cede & Co.,
its nominee.
SECTION 7. Article IV of Agreement. Sections 4.01, 4.02
and 4.03 shall be read in their entirety as provided in the Agreement.
Article IV (except for Sections 4.01, 4.02 and 4.03 thereof) shall be
read in its entirety as follows and shall be applicable only to the
Investor Certificates:
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.04 Rights of Certificateholders and the
Collateral Interest Holder. The Investor Certificates shall represent
undivided interests in the Trust, consisting of the right to receive, to
the extent necessary to make the required payments with respect to such
Investor Certificates at the times and in the amounts specified in this
Agreement, (a) the Floating Investor Percentage and Fixed Investor
Percentage (as applicable from time to time) of Collections received
with respect to the Receivables and (b) funds on deposit in the
Collection Account, the Finance Charge Account, the Principal Account,
the Principal Funding Account, the Reserve Account, the Interest Reserve
Account and the Distribution Account. The Collateral Interest shall be
subordinate to the Class A Certificates and the Class B Certificates.
The Class B Certificates shall be subordinate to the Class A
Certificates. The Seller Certificate shall not represent any interest
in the Collection Account, the Finance Charge Account, the Principal
Account, the Principal Funding Account, the Reserve Account, the
Interest Reserve Account or the Distribution Account, except as
specifically provided in this Article IV.
SECTION 4.05 Allocations.
(c) Allocations During the Revolving Period. During the
Revolving Period, the Servicer shall, prior to the close of business on
the day any Collections are deposited in the Collection Account,
allocate to the Investor Certificateholders or the Holder of the Seller
Certificate and pay or deposit from the Collection Account the following
amounts as set forth below:
(i) Allocate to the Investor Certificateholders the product
of (y) the Investor Percentage on the Date of Processing of such
Collections and (z) the aggregate amount of Collections of Finance
Charge Receivables on such Date of Processing, and of that
allocation, deposit in the Finance Charge Account an amount equal
to either (I) (A) prior to the date on which the amount of Monthly
Interest with respect to the related Interest Period is determined
by the Servicer, an amount equal to the product of (1) the
Investor Percentage on the Date of Processing of such Collections
and (2) the aggregate amount of Collections of Finance Charge
Receivables on such Date of Processing, and (B) at all other
times, the difference between (1) the Monthly Interest with
respect to the immediately following Transfer Date (plus, if the
Seller is not the Servicer, the Certificateholder Servicing Fee
for such Transfer Date plus the amount of any Certificateholder
Servicing Fee due but not paid to the Servicer on any prior
Transfer Date) and (2) the amounts previously deposited in the
Finance Charge Account with respect to the current Monthly Period
pursuant to this subsection 4.05(a)(i) or (II) the amount of
Collections of Finance Charge Receivables allocated to the
Investor Certificateholders on such Date of Processing pursuant to
this subsection 4.05(a)(i); provided, that if a deposit pursuant
to subsection 4.05(a)(i)(I) is made on any Date of Processing, on
the related Transfer Date, the Servicer shall withdraw from the
Collection Account and deposit into the Finance Charge Account an
amount equal to the amount of Collections of Finance Charge
Receivables that have been allocated to the Investor
Certificateholders during the related Monthly Period but not
previously deposited in the Finance Charge Account. Funds
deposited into the Finance Charge Account pursuant to this
subsection 4.05(a)(i) shall be applied in accordance with Section
4.09.
(ii) Deposit into the Principal Account an amount equal to
the product of (A) the Collateral Allocation on the Date of
Processing of such Collections, (B) the Investor Percentage on the
Date of Processing of such Collections and (C) the aggregate
amount of Collections processed in respect of Principal
Receivables on such Date of Processing to be applied first in
accordance with Section 4.12 and then in accordance with
subsection 4.09(d).
(iii) Deposit into the Principal Account an amount equal to
the product of (A) the Class B Investor Allocation on the Date of
Processing of such Collections, (B) the Investor Percentage on the
Date of Processing of such Collections and (C) the aggregate
amount of Collections processed in respect of Principal
Receivables on such Date of Processing to be applied first in
accordance with Section 4.12 and then in accordance with
subsection 4.09(d).
(iv) (A) Deposit into the Principal Account an amount equal
to the product of (1) the Class A Investor Allocation on the Date
of Processing of such Collections, (2) the Investor Percentage on
the Date of Processing of such Collections and (3) the aggregate
amount of Collections processed in respect of Principal
Receivables on such Date of Processing; provided, however, that
the amount deposited into the Principal Account pursuant to this
subsection 4.05(a)(iv)(A) shall not exceed the Daily Principal
Shortfall, and (B) pay to the Holder of the Seller Certificate an
amount equal to the excess, if any, identified in the proviso to
clause (A) above; provided, however, that the amount to be paid to
the Holder of the Seller Certificate pursuant to this subsection
4.05(a)(iv)(B) with respect to any Date of Processing shall be
paid to the Holder of the Seller Certificate only if the Seller
Interest on such Date of Processing is greater than zero (after
giving effect to the inclusion in the Trust of all Receivables
created on or prior to such Date of Processing and the application
of payments referred to in subsection 4.03(b)) and otherwise shall
be considered as Unallocated Principal Collections and deposited
into the Principal Account in accordance with subsection 4.05(e);
provided further, that in no event shall the amount payable to the
Holder of the Seller Certificate pursuant to this subsection
4.05(a)(iv)(B) be greater than the Seller Interest on such Date of
Processing.
(d) Allocations During the Controlled Accumulation Period.
During the Controlled Accumulation Period, the Servicer shall, prior to
the close of business on the day any Collections are deposited in the
Collection Account, allocate to the Investor Certificateholders or the
Holder of the Seller Certificate and pay or deposit from the Collection
Account the following amounts as set forth below:
(i) Deposit into the Finance Charge Account an amount equal
to the product of (A) the Investor Percentage on the Date of
Processing of such Collections and (B) the aggregate amount of
Collections processed in respect of Finance Charge Receivables on
such Date of Processing to be applied in accordance with Section
4.09.
(ii) Deposit into the Principal Account an amount equal to
the product of (A) the Collateral Allocation on the Date of
Processing of such Collections, (B) the Investor Percentage on the
Date of Processing of such Collections and (C) the aggregate
amount of Collections processed in respect of Principal
Receivables on such Date of Processing to be applied first in
accordance with Section 4.12 and then in accordance with
subsection 4.09(e).
(iii) Deposit into the Principal Account an amount equal to
the product of (A) the Class B Investor Allocation on the Date of
Processing of such Collections, (B) the Investor Percentage on the
Date of Processing of such Collections and (C) the aggregate
amount of Collections processed in respect of Principal
Receivables on such Date of Processing to be applied first in
accordance with Section 4.12 and then in accordance with
subsection 4.09(e).
(iv) (A) Deposit into the Principal Account an amount equal
to the product of (1) the Class A Investor Allocation on the Date
of Processing of such Collections, (2) the Investor Percentage on
the Date of Processing of such Collections and (3) the aggregate
amount of Collections processed in respect of Principal
Receivables on such Date of Processing; provided, however, that
the amount deposited into the Principal Account pursuant to this
subsection 4.05(b)(iv)(A) shall not exceed the Daily Principal
Shortfall, and (B) pay to the Holder of the Seller Certificate an
amount equal to the excess identified in the proviso to clause (A)
above, if any; provided, however, that the amount to be paid to
the Holder of the Seller Certificate pursuant to this subsection
4.05(b)(iv)(B) with respect to any Date of Processing shall be
paid to the Holder of the Seller Certificate only if the Seller
Interest on such Date of Processing is greater than zero (after
giving effect to the inclusion in the Trust of all Receivables
created on or prior to such Date of Processing and the application
of payments referred to in subsection 4.03(b)) and otherwise shall
be considered as Unallocated Principal Collections and deposited
into the Principal Account in accordance with subsection 4.05(e);
provided further, that in no event shall the amount payable to the
Holder of the Seller Certificate pursuant to this subsection
4.05(b)(iv)(B) be greater than the Seller Interest on such Date of
Processing.
(e) Allocations During the Rapid Accumulation Period.
During the Rapid Accumulation Period, the Servicer shall, prior to the
close of business on the day any Collections are deposited in the
Collection Account, allocate to the Investor Certificateholders and pay
or deposit from the Collection Account the following amounts as set
forth below:
(i) Deposit into the Finance Charge Account an amount equal
to the product of (A) the Investor Percentage on the Date of
Processing of such Collections and (B) the aggregate amount of
Collections processed in respect of Finance Charge Receivables on
such Date of Processing to be applied in accordance with Section
4.09.
(ii) (A) Deposit into the Principal Account an amount equal
to the product of (1) the Investor Percentage on the Date of
Processing of such Collections and (2) the aggregate amount of
Collections processed in respect of Principal Receivables on such
Date of Processing; provided, however, that the amount deposited
into the Principal Account pursuant to this subsection
4.05(c)(ii)(A) shall not exceed the sum of the Adjusted Investor
Interest as of the close of business on the last day of the prior
Monthly Period (after taking into account any payments to be made
on the Distribution Date relating to such prior Monthly Period and
deposits and any adjustments to be made to the Investor Interest
to be made on the Transfer Date relating to such Monthly Period)
and any Reallocated Principal Collections relating to the Monthly
Period in which such deposit is made and (B) pay to the Holder of
the Seller Certificate an amount equal to the excess, if any,
identified in the proviso to clause (A) above; provided, however,
that the amount to be paid to the Holder of the Seller Certificate
pursuant to this subsection 4.05(c)(ii)(B) with respect to any
Date of Processing shall be paid to the Holder of the Seller
Certificate only if the Seller Interest on such Date of Processing
is greater than zero (after giving effect to the inclusion in the
Trust of all Receivables created on or prior to such Date of
Processing and the application of payments referred to in
subsection 4.03(b)) and otherwise shall be considered as
Unallocated Principal Collections and deposited into the Principal
Account in accordance with subsection 4.05(e); provided further,
that in no event shall the amount payable to the Holder of the
Seller Certificate pursuant to this subsection 4.05(c)(ii)(B) be
greater than the Seller Interest on such Date of Processing.
(f) Allocations During the Rapid Amortization Period.
During the Rapid Amortization Period, the Servicer shall, prior to the
close of business on the day any Collections are deposited in the
Collection Account, allocate to the Investor Certificateholders and pay
or deposit from the Collection Account the following amounts as set
forth below:
(i) Deposit into the Finance Charge Account an amount equal
to the product of (A) the Investor Percentage on the Date of
Processing of such Collections and (B) the aggregate amount of
Collections processed in respect of Finance Charge Receivables on
such Date of Processing to be applied in accordance with Section
4.09.
(ii) (A) Deposit into the Principal Account an amount equal
to the product of (1) the Investor Percentage on the Date of
Processing of such Collections and (2) the aggregate amount of
Collections processed in respect of Principal Receivables on such
Date of Processing; provided, however, that the amount deposited
into the Principal Account pursuant to this subsection
4.05(d)(ii)(A) shall not exceed the sum of the Adjusted Investor
Interest as of the close of business on the last day of the prior
Monthly Period (after taking into account any payments to be made
on the Distribution Date relating to such prior Monthly Period and
deposits and any adjustments to be made to the Investor Interest
to be made on the Transfer Date relating to such Monthly Period)
and any Reallocated Principal Collections relating to the Monthly
Period in which such deposit is made and (B) pay to the Holder of
the Seller Certificate an amount equal to the excess, if any,
identified in the proviso to clause (A) above; provided, however,
that the amount to be paid to the Holder of the Seller Certificate
pursuant to this subsection 4.05(d)(ii)(B) with respect to any
Date of Processing shall be paid to the Holder of the Seller
Certificate only if the Seller Interest on such Date of Processing
is greater than zero (after giving effect to the inclusion in the
Trust of all Receivables created on or prior to such Date of
Processing and the application of payments referred to in
subsection 4.03(b)) and otherwise shall be considered as
Unallocated Principal Collections and deposited into the Principal
Account in accordance with subsection 4.05(e); provided further,
that in no event shall the amount payable to the Holder of the
Seller Certificate pursuant to this subsection 4.05(d)(ii)(B) be
greater than the Seller Interest on such Date of Processing.
(g) Unallocated Principal Collections. Any Collections in
respect of Principal Receivables or Finance Charge Receivables not
allocated and paid to the Holder of the Seller Certificate because of
the limitations contained in subsections 4.05(a)(iv)(B), 4.05(b)(iv)(B),
4.05(c)(ii)(B) and 4.05(d)(ii)(B) and any amounts allocable to the
Investor Certificates deposited in the Principal Account pursuant to
subsections 2.04(d)(iii) and 4.03(c) ("Unallocated Principal
Collections") shall be held in the Principal Account and, prior to the
commencement of the Controlled Accumulation Period, the Rapid
Accumulation Period or the Rapid Amortization Period shall be paid to
the Holder of the Seller Certificate when, and only to the extent that,
the Seller Interest is greater than zero. For each Transfer Date with
respect to the Controlled Accumulation Period, the Rapid Accumulation
Period or the Rapid Amortization Period, any such Unallocated Principal
Collections held in the Principal Account on such Transfer Date shall be
included in the Investor Principal Collections which to the extent
available shall be distributed as Available Investor Principal
Collections to be applied pursuant to Section 4.09 on such Transfer
Date.
With respect to the Investor Certificates, and
notwithstanding anything in the Agreement or this Series Supplement to
the contrary, whether or not the Servicer is required to make monthly or
daily deposits from the Collection Account into the Finance Charge
Account or the Principal Account pursuant to subsections 4.05(a),
4.05(b), 4.05(c) and 4.05(d), with respect to any Monthly Period (i) the
Servicer will only be required to deposit Collections from the
Collection Account into the Finance Charge Account or the Principal
Account up to the required amount to be deposited into any such deposit
account or, without duplication, distributed on or prior to the related
Distribution Date to the Investor Certificateholders and (ii) if at any
time prior to such Distribution Date the amount of Collections deposited
in the Collection Account exceeds the amount required to be deposited
pursuant to clause (i) above, the Servicer will be permitted to withdraw
the excess from the Collection Account.
SECTION 4.06 Determination of Monthly Interest.
(h) The amount of monthly interest distributable to the
Class A Certificates shall be an amount equal to one-twelfth of the
product of (i) the Class A Certificate Rate, times (ii) the outstanding
principal balance of the Class A Certificates determined as of the
Record Date preceding the related Transfer Date (the "Class A Monthly
Interest"); provided, however, that with respect to the first
Distribution Date, Class A Monthly Interest will be equal to interest
accrued on the initial outstanding principal balance of the Class A
Certificates at the Class A Certificate Rate from the Closing Date
through August 14, 1997; provided further, that in addition to Class A
Monthly Interest an amount equal to the amount of any unpaid Class A
Deficiency Amounts, as defined below, plus an amount equal to one-
twelfth of the product of (A) the sum of the Class A Certificate Rate,
plus 2% per annum, and (B) any Class A Deficiency Amount from the prior
Transfer Date, as defined below (or the portion thereof which has not
theretofore been paid to Class A Certificateholders) (the "Class A
Additional Interest") shall also be distributable to the Class A
Certificates, and on such Transfer Date the Trustee shall deposit such
funds, to the extent available, into the Distribution Account; provided
further, that the "Class A Deficiency Amount" for any Transfer Date
shall be equal to the excess, if any, of the aggregate amount accrued
pursuant to this subsection 4.06(a) as of the prior Interest Period over
the amount actually transferred to the Distribution Account for payment
of such amount. Class A Monthly Interest shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
(i) The amount of monthly interest distributable to the
Class B Certificates shall be an amount equal to the product of (i)(A) a
fraction, the numerator of which is the actual number of days in the
related Interest Period and the denominator of which is 360, times
(B) the Class B Certificate Rate in effect with respect to the related
Interest Period, times (ii) the outstanding principal balance of the
Class B Certificates determined as of the Record Date preceding the
related Transfer Date (the "Class B Monthly Interest"); provided,
however, that in addition to the Class B Monthly Interest an amount
equal to the amount of any unpaid Class B Deficiency Amounts, as defined
below, plus an amount equal to the product of (A)(1) a fraction, the
numerator of which is the actual number of days in the related Interest
Period and the denominator of which is 360, times (2) the sum of the
Class B Certificate Rate in effect with respect to the related Interest
Period, plus 2% per annum, and (B) any Class B Deficiency Amount from
the prior Transfer Date, as defined below (or the portion thereof which
has not theretofore been paid to Class B Certificateholders) (the "Class
B Additional Interest") shall also be distributable to the Class B
Certificates, and on such Transfer Date the Trustee shall deposit such
funds, to the extent available, into the Distribution Account; provided
further, that the "Class B Deficiency Amount" for any Transfer Date
shall be equal to the excess, if any, of the aggregate amount accrued
pursuant to this subsection 4.06(b) as of the prior Interest Period over
the amount actually transferred to the Distribution Account for payment
of such amount.
(j) The amount of monthly interest distributable to the
Collateral Interest shall be an amount equal to the product of (i)(A) a
fraction, the numerator of which is the actual number of days in the
related Interest Period and the denominator of which is 360, times (B)
the Collateral Rate in effect with respect to the related Interest
Period, times (ii) the Collateral Interest determined as of the Record
Date preceding such Transfer Date (the "Collateral Monthly Interest");
provided, however, that for the purposes of determining Collateral
Monthly Interest only, the Collateral Rate shall not exceed a per annum
rate of 1% in excess of the London interbank offered rate for one-month
United States dollar deposits determined by the Trustee on the second
London Business Day prior to the Transfer Date on which the related
Interest Period commences.
SECTION 4.07 Determination of Monthly Principal.
(k) The amount of monthly principal distributable from the
Principal Account with respect to the Class A Certificates on each
Transfer Date ("Class A Monthly Principal"), beginning with the Transfer
Date in the month following the month in which the Controlled
Accumulation Period or, if earlier, the Rapid Accumulation Period or the
Rapid Amortization Period, begins, shall be equal to the least of
(i) the Available Investor Principal Collections on deposit in the
Principal Account with respect to such Transfer Date, (ii) for each
Transfer Date with respect to the Controlled Accumulation Period, the
Controlled Deposit Amount for such Transfer Date and (iii) the Class A
Adjusted Investor Interest (after taking into account any adjustments to
be made on such Transfer Date pursuant to Section 4.10) prior to any
deposit into the Principal Funding Account on such Transfer Date.
(l) The amount of monthly principal distributable from the
Principal Account with respect to the Class B Certificates on each
Transfer Date (the "Class B Monthly Principal"), with respect to the
Controlled Accumulation Period or the Rapid Accumulation Period,
beginning with the Transfer Date on which an amount equal to the Class A
Investor Interest has been deposited in the Principal Funding Account
(after taking into account any deposits to be made on such Transfer
Date), or during the Rapid Amortization Period, beginning with the
Transfer Date immediately preceding the Distribution Date on which the
Class A Investor Interest will be paid in full (after taking into
account payments to be made on the related Distribution Date), shall be
an amount equal to the least of (i) the Available Investor Principal
Collections on deposit in the Principal Account with respect to such
Transfer Date (minus the portion of such Available Investor Principal
Collections applied to Class A Monthly Principal on such Transfer Date),
(ii) for each Transfer Date with respect to the Controlled Accumulation
Period, the Controlled Deposit Amount for such Transfer Date (minus the
Class A Monthly Principal with respect to such Transfer Date) and
(iii) the Class B Adjusted Investor Interest (after taking into account
any adjustments to be made on such Transfer Date pursuant to Sections
4.10 and 4.12) prior to any deposit into the Principal Funding Account
on such Transfer Date.
(m) The amount of monthly principal (the "Collateral Monthly
Principal") distributable from the Principal Account with respect to the
Collateral Interest on each Transfer Date shall be (A) during the
Revolving Period following any reduction of the Required Collateral
Interest pursuant to clause (z) of the proviso in the definition
thereof, an amount equal to the lesser of (1) the excess, if any, of the
Collateral Interest (after taking into account any adjustments to be
made on such Transfer Date pursuant to Sections 4.10 and 4.12) over the
Required Collateral Interest on such Transfer Date, and (2) the
Available Investor Principal Collections on such Transfer Date or (B)
during the Controlled Accumulation Period, the Rapid Accumulation Period
or the Rapid Amortization Period, an amount equal to the lesser of (1)
the excess, if any, of the Collateral Interest (after taking into
account any adjustments to be made on such Transfer Date pursuant to
Sections 4.10 and 4.12) over the Required Collateral Interest on such
Transfer Date, and (2) the excess, if any, of (i) the Available Investor
Principal Collections on such Transfer Date over (ii) the sum of the
Class A Monthly Principal and the Class B Monthly Principal for such
Transfer Date.
(n) On or before each Transfer Date, the Servicer shall
determine the amount (the "Class A Required Amount"), if any, by which
the sum of (i) the Class A Monthly Interest for such Transfer Date, plus
(ii) the Class A Deficiency Amount, if any, for such Transfer Date, plus
(iii) the Class A Additional Interest, if any, for such Transfer Date,
plus (iv) the Class A Servicing Fee for the prior Monthly Period, plus
(v) the Class A Servicing Fee, if any, due but not paid on any prior
Transfer Date, plus (vi) the Class A Investor Default Amount, if any,
for the prior Monthly Period, plus (vii) the Net Swap Payment, if any,
for such Transfer Date, plus (viii) the Net Swap Payments, if any, due
but not paid on any prior Transfer Date exceeds the Class A Available
Funds for the related Monthly Period.
(o) On or before each Transfer Date, the Servicer shall
also determine the amount (the "Class B Required Amount"), if any, equal
to the sum of (i) the amount, if any, by which the sum of (A) the Class
B Monthly Interest for such Transfer Date, plus (B) the Class B
Deficiency Amount, if any, for such Transfer Date, plus (C) the Class B
Additional Interest, if any, for such Transfer Date, plus (D) the Class
B Servicing Fee for the prior Monthly Period, plus (E) the Class B
Servicing Fee, if any, due but not paid on any prior Transfer Date,
exceeds the Class B Available Funds for the related Monthly Period, plus
(ii) the Class B Investor Default Amount, if any, for the prior Monthly
Period.
(p) In the event that the sum of the Class A Required
Amount and the Class B Required Amount for such Transfer Date is greater
than zero, the Servicer shall give written notice to the Trustee of such
positive Class A Required Amount or Class B Required Amount on or before
such Transfer Date. In the event that the Class A Required Amount for
such Transfer Date is greater than zero, all or a portion of the Excess
Spread with respect to such Transfer Date in an amount equal to the
Class A Required Amount, to the extent available, for such Transfer Date
shall be distributed from the Finance Charge Account on such Transfer
Date pursuant to subsection 4.11(a). In the event that the Class A
Required Amount for such Transfer Date exceeds the amount of Excess
Spread with respect to such Transfer Date, the Collections of Principal
Receivables allocable to the Collateral Interest and the Collections of
Principal Receivables allocable to the Class B Certificates with respect
to the prior Monthly Period shall be applied as specified in Section
4.12. In the event that the Class B Required Amount for such Transfer
Date exceeds the amount of Excess Spread available to fund the Class B
Required Amount pursuant to subsection 4.11(c), the Collections of
Principal Receivables allocable to the Collateral Interest (after
application to the Class A Required Amount) shall be applied as
specified in Section 4.12; provided, however, that the sum of any
payments pursuant to this paragraph shall not exceed the sum of the
Class A Required Amount and the Class B Required Amount.
SECTION 4.09 Monthly Payments. On or before each Transfer
Date, the Servicer shall instruct the Trustee in writing (which writing
shall be substantially in the form of Exhibit B hereto) to withdraw and
the Trustee, acting in accordance with such instructions, shall withdraw
on such Transfer Date or the related Distribution Date, as applicable,
to the extent of available funds, the amounts required to be withdrawn
from the Finance Charge Account, the Principal Account, the Principal
Funding Account and the Distribution Account as follows:
(q) An amount equal to the Class A Available Funds
deposited into the Finance Charge Account for the related Monthly Period
will be distributed on each Transfer Date in the following priority:
(i) an amount equal to Class A Monthly Interest for such
Transfer Date, plus the amount of any Class A Deficiency Amount
for such Transfer Date, plus the amount of any Class A Additional
Interest for such Transfer Date, shall be deposited by the
Servicer or the Trustee into the Distribution Account;
(ii) an amount equal to the Net Swap Payment, if any, for
such Transfer Date, plus the amount of any Net Swap Payments
previously due but not paid to the Swap Counterparty shall be
distributed to the Swap Counterparty;
(iii) an amount equal to the Class A Servicing Fee for such
Transfer Date, plus the amount of any Class A Servicing Fee due
but not paid to the Servicer on any prior Transfer Date shall be
distributed to the Servicer;
(iv) an amount equal to the Class A Investor Default
Amount, if any, for the preceding Monthly Period shall be treated
as a portion of Investor Principal Collections and deposited into
the Principal Account on such Transfer Date; and
(v) the balance, if any, shall constitute Excess Spread and
shall be allocated and distributed as set forth in Section 4.11.
(r) An amount equal to the Class B Available Funds
deposited into the Finance Charge Account for the related Monthly Period
will be distributed on each Transfer Date in the following priority:
(i) an amount equal to the Class B Monthly Interest for
such Transfer Date, plus the amount of any Class B Deficiency
Amount for such Transfer Date, plus the amount of any Class B
Additional Interest for such Transfer Date, shall be deposited by
the Servicer or the Trustee into the Distribution Account;
(ii) an amount equal to the Class B Servicing Fee for such
Transfer Date, plus the amount of any Class B Servicing Fee due
but not paid to the Servicer on any prior Transfer Date for such
Transfer Date shall be distributed to the Servicer; and
(iii) the balance, if any, shall constitute Excess Spread
and shall be allocated and distributed as set forth in Section
4.11.
(s) An amount equal to the Collateral Available Funds
deposited into the Finance Charge Account for the related Monthly Period
will be distributed on each Transfer Date in the following priority:
(i) if the Seller or The Bank of New York is no longer the
Servicer, an amount equal to the Collateral Interest Servicing Fee
for such Transfer Date plus the amount of any Collateral Interest
Servicing Fee due but not paid to the Servicer on any prior
Transfer Date shall be distributed to the Servicer; and
(ii) the balance, if any, shall constitute Excess Spread
and shall be allocated and distributed as set forth in Section
4.11.
(t) During the Revolving Period, an amount equal to the
Available Investor Principal Collections deposited into the Principal
Account for the related Monthly Period will be distributed on each
Transfer Date in the following priority:
(i) an amount equal to the Collateral Monthly Principal for
such Transfer Date shall be distributed to the Collateral Interest
Holder in accordance with the Loan Agreement;
(ii) an amount equal to the lesser of (A) the product of
(1) a fraction, the numerator of which is equal to the Available
Investor Principal Collections remaining after the application
specified in subsection 4.09(d)(i) above and the denominator of
which is equal to the sum of the Available Investor Principal
Collections available for sharing as specified in the related
Series Supplement for each Series in Group One and (2) the
Cumulative Series Principal Shortfall and (B) Available Investor
Principal Collections shall remain in the Principal Account to be
treated as Shared Principal Collections and applied to Series in
Group One other than this Series 1997-F; and
(iii) an amount equal to the excess, if any, of (A) the
Available Investor Principal Collections for such Transfer Date
over (B) the applications specified in subsections 4.09(d)(i) and
(ii) above shall be paid to the Holder of the Seller Certificate;
provided, however, that the amount to be paid to the Holder of the
Seller Certificate pursuant to this subsection 4.09(d)(iii) with
respect to such Transfer Date shall be paid to the Holder of the
Seller Certificate only if the Seller Interest on such Date of
Processing is greater than zero (after giving effect to the
inclusion in the Trust of all Receivables created on or prior to
such Transfer Date and the application of payments referred to in
subsection 4.03(b)) and otherwise shall be considered as
Unallocated Principal Collections and deposited into the Principal
Account in accordance with subsection 4.05(e); provided further,
that in no event shall the amount payable to the Holder of the
Seller Certificate pursuant to this subsection 4.09(d)(iii) be
greater than the Seller Interest on such Transfer Date.
(u) During the Controlled Accumulation Period, the Rapid
Accumulation Period or the Rapid Amortization Period, an amount equal to
the Available Investor Principal Collections deposited into the
Principal Account for the related Monthly Period will be distributed on
each Transfer Date in the following priority:
(i) an amount equal to the Class A Monthly Principal for
such Transfer Date, shall be (A) during the Controlled
Accumulation Period and the Rapid Accumulation Period, deposited
into the Principal Funding Account, and (B) during the Rapid
Amortization Period, deposited into the Distribution Account;
(ii) after giving effect to the distribution referred to in
clause (i) above, an amount equal to the Class B Monthly
Principal, shall be (A) during the Controlled Accumulation Period,
deposited into the Principal Funding Account, and (B) during Rapid
Accumulation Period and the Rapid Amortization Period, deposited
into the Distribution Account;
(iii) for each Transfer Date (other than the Transfer Date
immediately preceding the Series 1997-F Termination Date) and on
the Series 1997-F Termination Date, after giving effect to the
distributions referred to in clauses (i) and (ii) above, an amount
equal to Collateral Monthly Principal shall be distributed to the
Collateral Interest Holder in accordance with the Loan Agreement;
(iv) an amount equal to the lesser of (A) the product of
(1) a fraction, the numerator of which is equal to the Available
Investor Principal Collections remaining after the application
specified in subsections 4.09(e)(i), (ii) and (iii) above and the
denominator of which is equal to the sum of the Available Investor
Principal Collections available for sharing as specified in the
related Series Supplement for each Series in Group One and (2) the
Cumulative Series Principal Shortfall and (B) the Available
Investor Principal Collections remaining after the application
specified in subsections 4.09(e)(i), (ii) and (iii) above, shall
remain in the Principal Account to be treated as Shared Principal
Collections and applied to Series in Group One other than this
Series 1997-F; and
(v) an amount equal to the excess, if any, of (A) the
Available Investor Principal Collections over (B) the applications
specified in subsections 4.09(e)(i) through (iv) above shall be
paid to the Holder of the Seller Certificate; provided, however,
that the amount to be paid to the Holder of the Seller Certificate
pursuant to this subsection 4.09(e)(v) with respect to such
Transfer Date shall be paid to the Holder of the Seller
Certificate only if the Seller Interest on such Date of Processing
is greater than zero (after giving effect to the inclusion in the
Trust of all Receivables created on or prior to such Transfer Date
and the application of payments referred to in subsection 4.03(b))
and otherwise shall be considered as Unallocated Principal
Collections and deposited into the Principal Account in accordance
with subsection 4.05(e); provided further, that in no event shall
the amount payable to the Holder of the Seller Certificate
pursuant to this subsection 4.09(e)(v) be greater than the Seller
Interest on such Transfer Date.
(v) On the first Transfer Date with respect to the Rapid
Accumulation Period, the Trustee, acting in accordance with instructions
from the Servicer, shall withdraw from the Principal Funding Account and
deposit in the Distribution Account an amount equal to the excess, if
any, of the Principal Funding Account Balance over the Class A Investor
Interest (the amount of such excess not to exceed the Class B Investor
Interest).
(w) On the earlier to occur of (i) the first Transfer Date
with respect to the Rapid Amortization Period and (ii) the Transfer Date
immediately preceding the Scheduled Payment Date, the Trustee, acting in
accordance with instructions from the Servicer, shall withdraw from the
Principal Funding Account and deposit in the Distribution Account the
amount on deposit in the Principal Funding Account.
(x) On each Distribution Date, the Trustee shall pay in
accordance with subsection 5.01 (i) to the Class A Certificateholders
from the Distribution Account, the amount deposited into the
Distribution Account pursuant to subsection 4.09(a)(i) on the preceding
Transfer Date, and (ii) to the Class B Certificateholders from the
Distribution Account, the amount deposited into the Distribution Account
pursuant to subsection 4.09(b)(i) on the preceding Transfer Date.
(y) On the earliest to occur of (i) the first Distribution
Date with respect to the Rapid Amortization Period, (ii) the Scheduled
Payment Date and (iii) the first Distribution Date with respect to the
Rapid Accumulation Period on which the amount on deposit in the
Principal Funding Account is equal to the Class A Investor Interest, and
on each Distribution Date thereafter, the Trustee, acting in accordance
with instructions from the Servicer, shall pay in accordance with
Section 5.01 from the Distribution Account the amount so deposited into
the Distribution Account pursuant to subsections 4.09(e), (f) and (g) on
the related Transfer Date in the following priority:
(i) for each Distribution Date with respect to the Rapid
Amortization Period, if any, and with respect to the Scheduled
Payment Date, an amount equal to the lesser of such amount on
deposit in the Distribution Account and the Class A Investor
Interest shall be paid to the Class A Certificateholders; and
(ii) for each Distribution Date with respect to (A) the
Rapid Accumulation Period after the date on which the amount on
deposit in the Principal Funding Account is equal to the Class A
Investor Interest, if any, and (B) the Rapid Amortization Period,
if any, and on the Scheduled Payment Date, after giving effect to
the distributions referred to in clause (i) above, if any, an
amount equal to the lesser of such amount on deposit in the
Distribution Account and the Class B Investor Interest shall be
paid to the Class B Certificateholders.
(z) The Controlled Accumulation Period is scheduled to
commence at the close of business on May 31, 2001; provided, however,
that, if the Accumulation Period Length (determined as described below)
is less than 12 months, the date on which the Controlled Accumulation
Period actually commences will be delayed to the first Business Day of
the month that is the number of whole months prior to the Scheduled
Payment Date at least equal to the Accumulation Period Length and, as a
result, the number of Monthly Periods in the Controlled Accumulation
Period will at least equal the Accumulation Period Length. On the
Determination Date immediately preceding the May 2001 Distribution Date,
and each Determination Date thereafter until the Controlled Accumulation
Period begins, the Servicer will determine the "Accumulation Period
Length" which will equal the number of whole months such that the sum of
the Accumulation Period Factors for each month during such period will
be equal to or greater than the Required Accumulation Factor Number;
provided, however, that the Accumulation Period Length will not be
determined to be less than one month; provided further, however, that
the determination of the Accumulation Period Length may be changed at
any time if the Rating Agency Condition is satisfied.
SECTION 4.10 Investor Charge-Offs.
(aa) On or before each Transfer Date, the Servicer shall
calculate the Class A Investor Default Amount. If on any Transfer Date,
the Class A Investor Default Amount for the prior Monthly Period exceeds
the sum of the amount allocated with respect thereto pursuant to
subsection 4.09(a)(iv), subsection 4.11(a) and Section 4.12 with respect
to such Monthly Period, the Collateral Interest (after giving effect to
reductions for any Collateral Charge-Offs and any Reallocated Principal
Collections on such Transfer Date) will be reduced by the amount of such
excess, but not by more than the lesser of the Class A Investor Default
Amount and the Collateral Interest (after giving effect to reductions
for any Collateral Charge-Offs and any Reallocated Principal Collections
on such Transfer Date) for such Transfer Date. In the event that such
reduction would cause the Collateral Interest to be a negative number,
the Collateral Interest will be reduced to zero, and the Class B
Investor Interest (after giving effect to reductions for any Class B
Investor Charge-Offs and any Reallocated Class B Principal Collections
on such Transfer Date) will be reduced by the amount by which the
Collateral Interest would have been reduced below zero. In the event
that such reduction would cause the Class B Investor Interest to be a
negative number, the Class B Investor Interest will be reduced to zero,
and the Class A Investor Interest will be reduced by the amount by which
the Class B Investor Interest would have been reduced below zero, but
not by more than the Class A Investor Default Amount for such Transfer
Date (a "Class A Investor Charge-Off"). If the Class A Investor
Interest has been reduced by the amount of any Class A Investor Charge-
Offs, it will be reimbursed on any Transfer Date (but not by an amount
in excess of the aggregate Class A Investor Charge-Offs) by the amount
of Excess Spread allocated and available for such purpose pursuant to
subsection 4.11(b).
(bb) On or before each Transfer Date, the Servicer shall
calculate the Class B Investor Default Amount. If on any Transfer Date,
the Class B Investor Default Amount for the prior Monthly Period exceeds
the amount of Excess Spread and Reallocated Collateral Principal
Collections which are allocated and available to fund such amount
pursuant to subsection 4.11(c) and Section 4.12, the Collateral Interest
(after giving effect to reductions for any Collateral Charge-Offs and
any Reallocated Principal Collections on such Transfer Date and any
adjustments with respect thereto as described in subsection 4.10(a)
above) will be reduced by the amount of such excess but not by more than
the lesser of the Class B Investor Default Amount and the Collateral
Interest (after giving effect to reductions for any Collateral Charge-
Offs and any Reallocated Principal Collections on such Transfer Date and
any adjustments with respect thereto as described in subsection 4.10(a)
above) for such Transfer Date. In the event that such reduction would
cause the Collateral Interest to be a negative number, the Collateral
Interest will be reduced to zero and the Class B Investor Interest will
be reduced by the amount by which the Collateral Interest would have
been reduced below zero, but not by more than the Class B Investor
Default Amount for such Transfer Date (a "Class B Investor Charge-Off").
The Class B Investor Interest will also be reduced by the amount of
Reallocated Class B Principal Collections in excess of the Collateral
Interest pursuant to Section 4.12 and the amount of any portion of the
Class B Investor Interest allocated to the Class A Certificates to avoid
a reduction in the Class A Investor Interest pursuant to subsection
4.10(a) above. The Class B Investor Interest will thereafter be
reimbursed (but not to an amount in excess of the unpaid principal
balance of the Class B Certificates) on any Transfer Date by the amount
of Excess Spread allocated and available for that purpose as described
under subsection 4.11(d).
(cc) On or before each Transfer Date, the Servicer shall
calculate the Collateral Default Amount. If on any Transfer Date, the
Collateral Default Amount for the prior Monthly Period exceeds the
amount of Excess Spread which is allocated and available to fund such
amount pursuant to subsection 4.11(g), the Collateral Interest will be
reduced by the amount of such excess but not by more than the lesser of
the Collateral Default Amount and the Collateral Interest for such
Transfer Date (a "Collateral Charge-Off"). The Collateral Interest will
also be reduced by the amount of Reallocated Principal Collections
pursuant to Section 4.12 and the amount of any portion of the Collateral
Interest allocated to the Class A Certificates or the Class B
Certificates to avoid a reduction in the Class A Investor Interest,
pursuant to subsection 4.10(a), or the Class B Investor Interest,
pursuant to subsection 4.10(b), respectively. The Collateral Interest
will thereafter be reimbursed on any Transfer Date by the amount of the
Excess Spread allocated and available for that purpose as described
under subsection 4.11(h).
SECTION 4.11 Excess Spread. On or before each Transfer
Date, the Servicer shall instruct the Trustee in writing (which writing
shall be substantially in the form of Exhibit B hereto) to apply Excess
Spread with respect to the related Monthly Period to make the following
distributions on each Transfer Date in the following priority:
(dd) an amount equal to the Class A Required Amount, if
any, with respect to such Transfer Date will be used to fund the Class A
Required Amount and be applied in accordance with, and in the priority
set forth in, subsection 4.09(a);
(ee) an amount equal to the aggregate amount of Class A
Investor Charge-Offs which have not been previously reimbursed will be
treated as a portion of Investor Principal Collections and deposited
into the Principal Account on such Transfer Date;
(ff) an amount equal to the Class B Required Amount, if
any, with respect to such Transfer Date will be used to fund the Class B
Required Amount and be applied first in accordance with, and in the
priority set forth in, subsection 4.09(b) and then any remaining amount
available to pay the Class B Investor Default Amount shall be treated as
a portion of Investor Principal Collections and deposited into the
Principal Account on such Transfer Date;
(gg) an amount equal to the aggregate amount by which the
Class B Investor Interest has been reduced below the initial Class B
Investor Interest for reasons other than the payment of principal to the
Class B Certificateholders (but not in excess of the aggregate amount of
such reductions which have not been previously reimbursed) will be
treated as a portion of Investor Principal Collections and deposited
into the Principal Account on such Transfer Date;
(hh) an amount equal to the Collateral Monthly Interest plus
the amount of any past due Collateral Monthly Interest for such Transfer
Date will be paid to the Collateral Interest Holder in accordance with
the Loan Agreement;
(ii) if the Seller or The Bank of New York is the Servicer,
an amount equal to the aggregate amount of accrued but unpaid Collateral
Interest Servicing Fees will be paid to the Servicer;
(jj) an amount equal to the Collateral Default Amount, if
any, for the prior Monthly Period will be treated as a portion of
Investor Principal Collections and deposited into the Principal Account
on such Transfer Date;
(kk) an amount equal to the aggregate amount by which the
Collateral Interest has been reduced below the Required Collateral
Interest for reasons other than the payment of principal to the
Collateral Interest Holder (but not in excess of the aggregate amount of
such reductions which have not been previously reimbursed) will be
treated as a portion of Investor Principal Collections and deposited
into the Principal Account on such Transfer Date;
(ll) on each Transfer Date from and after the Reserve
Account Funding Date, but prior to the date on which the Reserve Account
terminates as described in Section 4.15(f), an amount up to the excess,
if any, of the Required Reserve Account Amount over the Available
Reserve Account Amount shall be deposited into the Reserve Account;
(mm) the balance, if any, after giving effect to payments
made pursuant to subparagraphs (a) through (i) above, shall be
distributed, to the extent required, in accordance with the Loan
Agreement;
(nn) on each Transfer Date prior to the date on which the
Swap Reserve Fund terminates as described in subsection 4.16(f), the
balance, if any, after giving effect to the payments made pursuant to
subparagraphs (a) through (j) above, in an amount not to exceed the
excess, if any, of the Required Swap Reserve Fund Amount over the
Available Swap Reserve Fund Amount shall be deposited into the Swap
Reserve Fund;
(oo) after giving effect to payments made pursuant to
subparagraphs (a) through (k) above, an amount equal to the sum of (i)
the Payment Carryforward Amount, if any, for such Transfer Date plus the
amount of any previously due but not paid Payment Carryforward Amounts
and (ii) the amount, if any, owed to the Swap Counterparty by the Trust
due to either (x) an early termination of the Interest Rate Swap
pursuant to the terms thereof or (y) the commencement of the Rapid
Amortization Period due to the occurrence of a Trust Pay Out Event,
shall be paid to the Swap Counterparty; and
(pp) the balance, if any, after giving effect to the
payments made pursuant to subparagraphs (a) through (l) above, shall be
paid to the Holder of the Seller Certificate.
SECTION 4.12 Reallocated Principal Collections. On or
before each Transfer Date, the Servicer shall instruct the Trustee in
writing (which writing shall be substantially in the form of Exhibit B
hereto) to withdraw from the Principal Account and apply Reallocated
Principal Collections (applying all Reallocated Collateral Principal
Collections in accordance with subsections 4.12(a) and (b) prior to
applying any Reallocated Class B Principal Collections in accordance
with subsection 4.12(a) for any amounts still owing after the
application of Reallocated Collateral Principal Collections) with
respect to such Transfer Date, to make the following distributions on
each Transfer Date in the following priority:
(qq) an amount equal to the excess, if any, of (i) the
Class A Required Amount, if any, with respect to such Transfer Date over
(ii) the amount of Excess Spread with respect to the related Monthly
Period, shall be applied pursuant to subsections 4.09(a)(i), (ii), (iii)
and (iv); and
(rr) an amount equal to the excess, if any, of (i) the
Class B Required Amount, if any, with respect to such Transfer Date over
(ii) the amount of Excess Spread allocated and available to the Class B
Certificates pursuant to subsection 4.11(c) on such Transfer Date shall
be applied first pursuant to subsections 4.09(b)(i) and (ii) and then
pursuant to subsection 4.11(c).
(ss) On each Transfer Date, the Collateral Interest shall
be reduced by the amount of Reallocated Collateral Principal Collections
and by the amount of Reallocated Class B Principal Collections for such
Transfer Date. In the event that such reduction would cause the
Collateral Interest (after giving effect to any Collateral Charge-Offs
for such Transfer Date) to be a negative number, the Collateral Interest
(after giving effect to any Collateral Charge-Offs for such Transfer
Date) shall be reduced to zero and the Class B Investor Interest shall
be reduced by the amount by which the Collateral Interest would have
been reduced below zero. In the event that the reallocation of
Reallocated Principal Collections would cause the Class B Investor
Interest (after giving effect to any Class B Investor Charge-Offs for
such Transfer Date) to be a negative number on any Transfer Date,
Reallocated Principal Collections shall be reallocated on such Transfer
Date in an aggregate amount not to exceed the amount which would cause
the Class B Investor Interest (after giving effect to any Class B
Investor Charge-Offs for such Transfer Date) to be reduced to zero.
SECTION 4.13 Shared Principal Collections.
(tt) The portion of Shared Principal Collections on deposit
in the Principal Account equal to the amount of Shared Principal
Collections allocable to Series 1997-F on any Transfer Date shall be
applied as an Available Investor Principal Collection pursuant to
Section 4.09 and pursuant to such Section 4.09 shall be deposited in the
Distribution Account or distributed in accordance with the Loan
Agreement.
(uu) Shared Principal Collections allocable to Series
1997-F with respect to any Transfer Date shall mean an amount equal to
the Series Principal Shortfall, if any, with respect to Series 1997-F
for such Transfer Date; provided, however, that if the aggregate amount
of Shared Principal Collections for all Series for such Transfer Date is
less than the Cumulative Series Principal Shortfall for such Transfer
Date, then Shared Principal Collections allocable to Series 1997-F on
such Transfer Date shall equal the product of (i) Shared Principal
Collections for all Series for such Transfer Date and (ii) a fraction,
the numerator of which is the Series Principal Shortfall with respect to
Series 1997-F for such Transfer Date and the denominator of which is the
aggregate amount of Cumulative Series Principal Shortfall for all Series
for such Transfer Date.
(vv) Solely for the purpose of determining the amount of
Available Investor Principal Collections to be treated as Shared
Principal Collections on any Transfer Date allocable to other Series in
Group One, on each Determination Date, the Servicer shall determine the
Class A Required Amount, Class B Required Amount, Excess Spread and
Reallocated Principal Collections as of such Determination Date for the
following Transfer Date.
SECTION 4.14 Principal Funding Account.
(ww) The Trustee shall establish and maintain with a
Qualified Institution, which may be the Trustee, in the name of the
Trust, on behalf of the Trust, for the benefit of the Investor
Certificateholders, a segregated trust account with the corporate trust
department of such Qualified Institution (the "Principal Funding
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Investor
Certificateholders. The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Principal
Funding Account and in all proceeds thereof. The Principal Funding
Account shall be under the sole dominion and control of the Trustee for
the benefit of the Investor Certificateholders. If at any time the
institution holding the Principal Funding Account ceases to be a
Qualified Institution, the Seller shall notify the Trustee, and the
Trustee upon being notified (or the Servicer on its behalf) shall,
within 10 Business Days, establish a new Principal Funding Account
meeting the conditions specified above with a Qualified Institution, and
shall transfer any cash or any investments to such new Principal Funding
Account. The Trustee, at the direction of the Servicer, shall (i) make
withdrawals from the Principal Funding Account from time to time, in the
amounts and for the purposes set forth in this Series Supplement and
(ii) on each Transfer Date (from and after the commencement of the
Controlled Accumulation Period or the Rapid Accumulation Period) prior
to the termination of the Principal Funding Account make deposits into
the Principal Funding Account in the amounts specified in, and otherwise
in accordance with, subsection 4.09(e).
(xx) Funds on deposit in the Principal Funding Account
shall be invested at the direction of the Servicer by the Trustee in
Permitted Investments. Funds on deposit in the Principal Funding
Account on any Transfer Date, after giving effect to any withdrawals
from the Principal Funding Account on such Transfer Date, shall be
invested in such investments that will mature so that such funds will be
available for withdrawal on or prior to the following Transfer Date.
The Trustee shall maintain for the benefit of the Investor
Certificateholders possession of the negotiable instruments or
securities, if any, evidencing such Permitted Investments. No Permitted
Investment shall be disposed of prior to its maturity.
On each Transfer Date with respect to the Controlled
Accumulation Period or the Rapid Accumulation Period and on the first
Transfer Date with respect to the Rapid Amortization Period, the
Trustee, acting at the Servicer's direction given on or before such
Transfer Date, shall transfer from the Principal Funding Account to the
Finance Charge Account the Principal Funding Investment Proceeds on
deposit in the Principal Funding Account, but not in excess of the
Covered Amount, for application in the following priority:
(i) an amount up to that portion of the Covered Amount
computed pursuant to clause (a) of the definition of Covered
Amount shall be treated as Class A Available Funds to be applied
pursuant to subsections 4.09(a)(i) and (ii); and
(ii) an amount up to that portion of the Covered Amount
computed pursuant to clause (b) of the definition of Covered
Amount shall be treated as Class B Available Funds to be applied
pursuant to subsection 4.09(b)(i).
Any Excess Principal Funding Investment Proceeds shall be
paid to the Seller on each Transfer Date. An amount equal to any
Principal Funding Investment Shortfall will be deposited into the
Finance Charge Account on (i) each Transfer Date with respect to the
Controlled Accumulation Period, from the Reserve Account to the extent
funds are available pursuant to subsection 4.15(d), (ii) the first
Transfer Date with respect to the Rapid Accumulation Period, from the
Reserve Account to the extent funds are available pursuant to subsection
4.15(d) and from the Swap Reserve Fund to the extent funds are available
pursuant to subsection 4.16(d), as applicable, and on each Transfer Date
thereafter with respect to the Rapid Accumulation Period, from the Swap
Reserve Fund to the extent funds are available pursuant to subsection
4.16(d) and (iii) the first Transfer Date with respect to the Rapid
Amortization Period, (x) if such Rapid Amortization Period commences
prior to the commencement of the Rapid Accumulation Period, from the
Reserve Account to the extent funds are available pursuant to subsection
4.15(d) or (y) if such Rapid Amortization Period commences after the
commencement of the Rapid Accumulation Period, from the Swap Reserve
Fund to the extent funds are available pursuant to subsection 4.16(d).
Principal Funding Investment Proceeds (including reinvested interest)
shall not be considered part of the amounts on deposit in the Principal
Funding Account for purposes of this Series Supplement.
SECTION 4.15 Reserve Account.
(yy) The Trustee shall establish and maintain with a
Qualified Institution, which may be the Trustee in the name of the
Trust, on behalf of the Trust, for the benefit of the Investor
Certificateholders, a segregated trust account with the corporate trust
department of such Qualified Institution (the "Reserve Account"),
bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Investor Certificateholders.
The Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Reserve Account and in all proceeds
thereof. The Reserve Account shall be under the sole dominion and
control of the Trustee for the benefit of the Investor
Certificateholders. If at any time the institution holding the Reserve
Account ceases to be a Qualified Institution, the Seller shall notify
the Trustee, and the Trustee upon being notified (or the Servicer on its
behalf) shall, within 10 Business Days, establish a new Reserve Account
meeting the conditions specified above with a Qualified Institution, and
shall transfer any cash or any investments to such new Reserve Account.
The Trustee, at the direction of the Servicer, shall (i) make
withdrawals from the Reserve Account from time to time in an amount up
to the Available Reserve Account Amount at such time, for the purposes
set forth in this Series Supplement, and (ii) on each Transfer Date
(from and after the Reserve Account Funding Date) prior to termination
of the Reserve Account make a deposit into the Reserve Account in the
amount specified in, and otherwise in accordance with, subsection
4.11(i).
(zz) Funds on deposit in the Reserve Account shall be
invested at the direction of the Servicer by the Trustee in Permitted
Investments. Funds on deposit in the Reserve Account on any Transfer
Date, after giving effect to any withdrawals from the Reserve Account on
such Transfer Date, shall be invested in such investments that will
mature so that such funds will be available for withdrawal on or prior
to the following Transfer Date. The Trustee shall maintain for the
benefit of the Investor Certificateholders possession of the negotiable
instruments or securities, if any, evidencing such Permitted
Investments. No Permitted Investment shall be disposed of prior to its
maturity. On each Transfer Date, all interest and earnings (net of
losses and investment expenses) accrued since the preceding Transfer
Date on funds on deposit in the Reserve Account shall be retained in the
Reserve Account (to the extent that the Available Reserve Account Amount
is less than the Required Reserve Account Amount) and the balance, if
any, shall be deposited into the Finance Charge Account and included in
Class A Available Funds for such Transfer Date. For purposes of
determining the availability of funds or the balance in the Reserve
Account for any reason under this Series Supplement, except as otherwise
provided in the preceding sentence, investment earnings on such funds
shall be deemed not to be available or on deposit.
(aaa) On or before each Transfer Date with respect to the
Controlled Accumulation Period, on or before the first Transfer Date
with respect to the Rapid Accumulation Period and on or before the first
Transfer Date with respect to the Rapid Amortization Period if such
Rapid Amortization Period commences prior to the commencement of the
Rapid Accumulation Period, the Servicer shall calculate the "Reserve
Draw Amount" which shall be equal to the Principal Funding Investment
Shortfall with respect to the related Transfer Date; provided, however,
that such amount will be reduced to the extent that funds otherwise
would be available for deposit in the Reserve Account under Section
4.11(i) with respect to such Transfer Date.
(bbb) In the event that for any Transfer Date the Reserve
Draw Amount is greater than zero, the Reserve Draw Amount, up to the
Available Reserve Account Amount, shall be withdrawn from the Reserve
Account on such Transfer Date by the Trustee (acting in accordance with
the instructions of the Servicer), and deposited into the Finance Charge
Account for application in the following priority:
(i) an amount, up to the excess, if any, of (x) an amount
equal to that portion of the Covered Amount computed pursuant to
clause (a) of the definition of Covered Amount over (y) the amount
treated as Class A Available Funds pursuant to subsection
4.14(b)(i), shall be treated as Class A Available Funds to be
applied pursuant to subsections 4.09(a)(i) and (ii); and
(ii) an amount up to the excess, if any, of (x) an amount
equal to that portion of the Covered Amount computed pursuant to
clause (b) of the definition of Covered Amount over (y) the amount
treated as Class B Available Funds pursuant to subsection
4.14(b)(ii), shall be treated as Class B Available Funds to be
applied pursuant to subsection 4.09(b)(i).
(ccc) In the event that the Reserve Account Surplus on any
Transfer Date, after giving effect to all deposits to and withdrawals
from the Reserve Account with respect to such Transfer Date, is greater
than zero, the Trustee, acting in accordance with the instructions of
the Servicer, shall withdraw from the Reserve Account, and treat as
Excess Spread to be applied in accordance with the priority set forth in
subsections 4.11(j) through (m), an amount equal to such Reserve Account
Surplus.
(ddd) Upon the earliest to occur of (i) the termination of
the Trust pursuant to Article XII of the Agreement, (ii) the first
Transfer Date with respect to the Rapid Accumulation Period, (iii) the
first Transfer Date with respect to the Rapid Amortization Period, and
(iv) the Transfer Date immediately preceding the Scheduled Payment Date,
the Trustee, acting in accordance with the instructions of the Servicer,
after the prior payment of all amounts owing to the Series 1997-F
Certificateholders that are payable from the Reserve Account as provided
herein, shall withdraw from the Reserve Account and treat as Excess
Spread to be applied in accordance with the priority set forth in
subsections 4.11(j) through (m), all amounts, if any, on deposit in the
Reserve Account and the Reserve Account shall be deemed to have
terminated for purposes of this Series Supplement.
SECTION 4.16 Swap Reserve Fund.
(eee) The Trustee shall establish and maintain, at and upon
the direction of the Servicer, with a Qualified Institution, which may
be the Trustee, in the name of the Trust, on behalf of the Trust, for
the benefit of the Class A Certificateholders, the Swap Counterparty and
the Seller, as their interests appear herein, a segregated trust account
with the corporate trust department of such Qualified Institution (the
"Swap Reserve Fund"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Class A
Certificateholders, the Swap Counterparty and the Seller. The Trustee
shall possess all right, title and interest in all funds on deposit from
time to time in the Swap Reserve Fund and in all proceeds thereof. The
Swap Reserve Fund shall be under the sole dominion and control of the
Trustee for the benefit of the Class A Certificateholders, the Swap
Counterparty and the Seller. If at any time the institution holding the
Swap Reserve Fund ceases to be a Qualified Institution, the Seller shall
notify the Trustee, and the Trustee upon being notified (or the Servicer
on its behalf) shall, within 10 Business Days, establish a new Swap
Reserve Fund meeting the conditions specified above with a Qualified
Institution, and shall transfer any cash or any investments to such new
Swap Reserve Fund. The Trustee, at the direction of the Servicer, shall
(i) make withdrawals from the Swap Reserve Fund from time to time in an
amount up to the Available Swap Reserve Fund Amount in the amounts and
at the times set forth in subsection 4.14(b) and this Section 4.16, and
(ii) on each Transfer Date prior to termination of the Swap Reserve Fund
make a deposit into the Swap Reserve Fund in the amount specified in,
and otherwise in accordance with, subsection 4.11(k).
(fff) On the Closing Date, the Trustee shall deposit the
Initial Swap Reserve Fund Deposit received by it from the Seller in
immediately available funds into the Swap Reserve Fund. Funds on
deposit in the Swap Reserve Fund shall be invested at the direction of
the Servicer by the Trustee in Permitted Investments; provided, however,
that, for purposes of the investment of funds on deposit in the Swap
Reserve Fund, references in the definition of "Permitted Investments" to
a rating of "A-1+" by Standard & Poor's shall be modified to require a
rating of not lower than "A-1" by such Rating Agency. Funds on deposit
in the Swap Reserve Fund on any Transfer Date, after giving effect to
any withdrawals from the Swap Reserve Fund on such Transfer Date, shall
be invested in such investments that will mature so that such funds will
be available for withdrawal on or prior to the following Transfer Date.
The Trustee shall maintain for the benefit of the Class A
Certificateholders, the Swap Counterparty and the Seller possession of
the negotiable instruments or securities, if any, evidencing such
Permitted Investments. No Permitted Investment shall be disposed of
prior to its maturity. On each Transfer Date, all interest and earnings
(net of losses and investment expenses) accrued since the preceding
Transfer Date on funds on deposit in the Swap Reserve Fund shall be
retained in the Swap Reserve Fund (to the extent that the Available Swap
Reserve Fund Amount (prior to taking into account any such interest and
earnings) is less than the Required Swap Reserve Fund Amount) and the
balance, if any, shall be paid to the Seller on such Transfer Date. For
purposes of determining the availability of funds or the balance in the
Swap Reserve Fund for any reason under this Series Supplement, except as
otherwise provided in the preceding sentence, investment earnings on
such funds shall be deemed not to be available or on deposit.
(ggg) On or before each Transfer Date with respect to the
Rapid Accumulation Period and on or before the first Transfer Date with
respect to the Rapid Amortization Period if such Rapid Amortization
Period commences after the commencement of the Rapid Accumulation
Period, the Servicer shall calculate the "Swap Reserve Draw Amount"
which shall be equal to the Principal Funding Investment Shortfall with
respect to the related Transfer Date; provided, however, that on the
first Transfer Date with respect to the Rapid Accumulation Period, the
"Swap Reserve Draw Amount" shall equal the amount, if any, by which the
sum of (i) the Principal Funding Investment Proceeds for such Transfer
Date and (ii) the amount withdrawn from the Reserve Account on such
Transfer Date pursuant to subsection 4.15(d)(i) are less than the amount
computed pursuant to clause (a) of the definition of Covered Amount for
such Transfer Date; provided, further, however, that the "Swap Reserve
Draw Amount" will be reduced to the extent that funds otherwise would be
required to be deposited and available for deposit in the Swap Reserve
Fund under subsection 4.11(k) with respect to such Transfer Date.
(hhh) In the event that for any Transfer Date the Swap
Reserve Draw Amount is greater than zero, the Swap Reserve Draw Amount,
up to the Available Swap Reserve Fund Amount, shall be withdrawn from
the Swap Reserve Fund on such Transfer Date by the Trustee (acting in
accordance with the instructions of the Servicer), and deposited into
the Finance Charge Account and treated as Class A Available Funds for
such Transfer Date to be applied pursuant to subsection 4.09(a).
(iii) In the event that the Swap Reserve Fund Surplus on
any Transfer Date, after giving effect to all deposits to and
withdrawals from the Swap Reserve Fund with respect to such Transfer
Date, is greater than zero, the Trustee, acting in accordance with the
instructions of the Servicer, shall withdraw from the Swap Reserve Fund,
and treat as Excess Spread to be applied in accordance with the priority
set forth in subsections 4.11(l) and (m) an amount equal to such Swap
Reserve Fund Surplus.
(jjj) Upon the earliest to occur of (i) the Transfer Date
immediately preceding the Scheduled Payment Date, (ii) the termination
of the Trust pursuant to Article XII of the Agreement, (iii) if the
Rapid Amortization Period commences pursuant to clause (a) of the
definition thereof, the Transfer Date immediately preceding the date on
which the Notional Amount is reduced to zero pursuant to the terms of
the Interest Rate Swap and (iv) if the Rapid Amortization Period
commences pursuant to clause (b) of the definition thereof, the first
Transfer Date with respect to the Rapid Amortization Period (after
taking into account all payments to be made on such date), the Trustee,
acting in accordance with the instructions of the Servicer, after
withdrawing all amounts owing from the Swap Reserve Fund as provided
herein, shall withdraw from the Swap Reserve Fund and treat as Excess
Spread to be applied in accordance with the priority set forth in
subsections 4.11(l) and (m) amounts, if any, on deposit in the Swap
Reserve Fund, and the Swap Reserve Fund shall be deemed to have
terminated for purposes of this Series Supplement.
SECTION 4.17 Determination of LIBOR.
(kkk) On each LIBOR Determination Date, the Trustee will
determine LIBOR on the basis of the rate for deposits in United States
dollars for a one-month period which appears on Telerate Page 3750 as of
11:00 a.m., London time, on such date. If such rate does not appear on
Telerate Page 3750, the rate for that LIBOR Determination Date will be
determined on the basis of the rates at which deposits in United States
dollars are offered by the Reference Banks at approximately 11:00 a.m.,
London time, on that day to prime banks in the London interbank market
for a one-month period. The Trustee will request the principal London
office of each of the Reference Banks to provide a quotation of its
rate. If at least two such quotations are provided, the rate for that
LIBOR Determination Date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the rate for
that LIBOR Determination Date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Servicer, at
approximately 11:00 a.m., New York City time, on that day for loans in
United States dollars to leading European banks for a one-month period.
(lll) The Class B Certificate Rate applicable to the then
current and the immediately preceding Interest Periods may be obtained
by any Investor Certificateholder by telephoning the Trustee at its
Corporate Trust Office at (212) 815-5368.
(mmm) On each LIBOR Determination Date prior to 12:00 noon
New York City time, the Trustee shall send to the Servicer by facsimile,
notification of LIBOR for the following Interest Period.
SECTION 4.18 Seller's or Servicer's Failure to Make a
Deposit or Payment.
If the Servicer or the Seller fails to make, or give
instructions to make, any payment or deposit (other than as required by
subsections 2.04(d) and (e) and 12.02(a) or Sections 10.02 and 12.01)
required to be made or given by the Servicer or Seller, respectively, at
the time specified in the Agreement (including applicable grace
periods), the Trustee shall make such payment or deposit from the
applicable Investor Account without instruction from the Servicer or
Seller. The Trustee shall be required to make any such payment, deposit
or withdrawal hereunder only to the extent that the Trustee has
sufficient information to allow it to determine the amount thereof;
provided, however, that the Trustee shall in all cases be deemed to have
sufficient information to determine the amount of interest payable to
the Series 1997-F Certificateholders on each Distribution Date. The
Servicer shall, upon request of the Trustee, promptly provide the
Trustee with all information necessary to allow the Trustee to make such
payment, deposit or withdrawal. Such funds or the proceeds of such
withdrawal shall be applied by the Trustee in the manner in which such
payment or deposit should have been made by the Seller or the Servicer,
as the case may be.
SECTION 4.19 Interest Rate Swap.
(nnn) The Trustee shall enter into the Interest Rate Swap,
certain terms of which are set forth herein for the convenience of the
parties thereto for incorporation therein by reference, with the Swap
Counterparty on the Closing Date. Pursuant to the terms of the Interest
Rate Swap, the Swap Counterparty shall pay to the Trustee on each
Transfer Date the Net Swap Receipt, if any, plus the amount of any Net
Swap Receipt due but not paid with respect to any previous Transfer
Date. The Trustee shall deposit such Net Swap Receipts, if any, into
the Finance Charge Account and shall apply such amounts as Class A
Available Funds pursuant to subsection 4.09(a). In addition, in
accordance with the terms of the Interest Rate Swap, the Trustee shall
pay to the Swap Counterparty the Net Swap Payment, if any, for such
Transfer Date, plus the amount of any Net Swap Payment due but not paid
on any previous Transfer Date, from amounts applied pursuant to
subsections 4.09(a)(ii). If the Interest Rate Swap has not been
terminated and the Trustee has not received any Net Swap Receipt due
with respect to the related Distribution Date prior to 10:00 a.m. on the
date such payment is due, (i) the Trustee shall notify the Swap
Counterparty, the Seller and the Servicer of such fact prior to 12:00
p.m. on such date, (ii) the Trustee, if directed by the Servicer, shall
designate an Early Termination Date (as such term is defined in the
Interest Rate Swap) pursuant to the Interest Rate Swap and shall, if the
Seller so directs, terminate the Interest Rate Swap pursuant to its
terms, and (iii) the Servicer shall provide the Trustee, prior to 4:30
p.m. on the related Transfer Date, with new statements substantially in
the forms of Exhibit B and Exhibit C to this Series Supplement revised,
if necessary, to reflect that the Net Swap Receipt (or any portion
thereof) was not received by the Trustee for such Transfer Date.
(ooo) Following the termination of the Interest Rate Swap
pursuant to the terms thereof, the Swap Counterparty shall pay to the
Trustee the amount of the termination payment, if any, to be made by the
Swap Counterparty pursuant to Section 6 of the Interest Rate Swap. The
Trustee shall, promptly upon receipt of such termination payment, if
any, and at the direction of the Servicer distribute the amount of such
termination payment to the Seller.
(ppp) The Trustee, at the direction of the Seller, shall
direct the Swap Counterparty to assign its rights and obligations under
the Interest Rate Swap to a replacement Swap Counterparty, in the event
that the long-term credit rating of the Swap Counterparty is reduced
below BBB- by Standard & Poor's or below Baa3 by Moody's or is withdrawn
by either Standard & Poor's or Moody's. The Seller shall give Standard
& Poor's and Moody's notice of the replacement of the Swap Counterparty
as soon as practicable thereafter.
(qqq) The parties hereto agree that all obligations of the
Trustee on behalf of the Trust under the Interest Rate Swap shall be
paid from, and limited to, funds specifically available therefor
pursuant to subsections 4.09(a)(ii) and 4.11(l) of this Series
Supplement and that the Trustee shall not be required to expend or risk
its own funds or otherwise incur any liability in connection with the
Interest Rate Swap.
(rrr) If the Trustee has actual knowledge of any event
specified in Section 5 of the Interest Rate Swap, the Trustee shall
provide written notice of such event to the Servicer, the Seller and the
Rating Agencies. The Seller, upon becoming aware of any event specified
in Section 5 of the Interest Rate Swap, whether pursuant to notice from
the Trustee or otherwise, shall immediately provide the Trustee with
written instructions as to the course of action to be taken under
Section 6 of the Interest Rate Swap, including without limitation any
notices to be provided and whether or not an Early Termination Date (as
defined in the Interest Rate Swap) should be designated and, if so, when
such Early Termination Date should be designated. Prior to receiving
such written instructions from the Seller, the Trustee shall not
designate an Early Termination Date and shall not terminate the Interest
Rate Swap.
(sss) At the request of the Trustee, the Seller shall
provide the Trustee with any document the Trustee is required to provide
the Swap Counterparty pursuant to Section 4(a) of the Interest Rate
Swap.
(ttt) In the event the long-term credit rating of the Swap
Counterparty is reduced below AA- by Standard & Poor's or below Aa3 by
Moody's or is withdrawn by either Standard & Poor's or Moody's, the Swap
Counterparty will be required within 30 days from the date of such
reduction or withdrawal to fund an account (the "Interest Reserve
Account") in an amount equal to one-twelfth of the product of (a) the
Swap Fixed Rate and (b) the Notional Amount as of the Record Date
preceding such reduction or withdrawal (the "Required Interest Reserve
Amount"). The Swap Counterparty's failure to adequately fund the
Interest Reserve Account within 30 days of such reduction or withdrawal
shall constitute an "Interest Reserve Account Event."
SECTION 4.20 Interest Reserve Account.
(uuu) The Trustee shall establish and maintain, at and upon
the direction of the Servicer, the Interest Reserve Account with a
Qualified Institution, which may be the Trustee in the name of the
Trust, on behalf of the Trust, for the benefit of the Class A
Certificateholders, a segregated trust account with the corporate trust
department of such Qualified Institution, bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Class A Certificateholders. The Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the
Interest Reserve Account and in all proceeds thereof. The Interest
Reserve Account shall be under the sole dominion and control of the
Trustee for the benefit of the Class A Certificateholders. If at any
time the institution holding the Interest Reserve Account ceases to be a
Qualified Institution, the Seller shall notify the Trustee, and the
Trustee upon being notified (or the Servicer on its behalf) shall,
within 10 Business Days, establish a new Interest Reserve Account
meeting the conditions specified above with a Qualified Institution, and
shall transfer any cash or any investments to such new Interest Reserve
Account.
(vvv) Funds on deposit in the Interest Reserve Account
shall be invested at the direction of the Swap Counterparty by the
Trustee in Permitted Investments. Funds on deposit in the Interest
Reserve Account on any Transfer Date shall be invested in such
investments that will mature so that such funds will be available for
withdrawal on or prior to the following Transfer Date. The Trustee
shall maintain for the benefit of the Class A Certificateholders
possession of the negotiable instruments or securities, if any,
evidencing such Permitted Investments. No Permitted Investment shall be
disposed of prior to its maturity. On each Transfer Date, all interest
and earnings (net of losses and investment expenses) accrued since the
preceding Transfer Date on funds on deposit in the Interest Reserve
Account shall be retained in the Interest Reserve Account to the extent
that the Required Interest Reserve Amount exceeds the amount on deposit
in the Interest Reserve Account. To the extent that the amount on
deposit in the Interest Reserve Account exceeds the Required Interest
Reserve Amount (after taking into effect any withdrawals required to be
made on such Transfer Date), the amount of such excess shall be
withdrawn from the Interest Reserve Account and distributed to the Swap
Counterparty on such Transfer Date. For purposes of determining the
availability of funds or the balance in the Interest Reserve Account for
any reason under this Series Supplement, except as otherwise provided in
the preceding sentence, investment earnings on such funds shall be
deemed not to be available or on deposit.
(www) In the event that the Interest Rate Swap terminates
due to a default by the Swap Counterparty, on the Transfer Date on or
immediately following such termination, the Trustee, at the direction of
the Servicer, shall withdraw an amount equal to the least of (i) the Net
Swap Receipt, if any, with respect to such Transfer Date plus the amount
of any Net Swap Receipt previously due but not paid to the Trust, (ii)
the amount on deposit in the Interest Reserve Account on such Transfer
Date and (iii) the Required Interest Reserve Amount, from the Interest
Reserve Account and shall deposit such amount in the Finance Charge
Account to be included in Class A Available Funds with respect to such
Transfer Date and give notice of such withdrawal to each Rating Agency.
(xxx) Upon the earliest to occur of (i) the Transfer Date
on or immediately following the termination of the Interest Rate Swap,
(ii) the Transfer Date immediately preceding the Scheduled Payment Date,
(iii) the termination of the Trust pursuant to Article XII of the
Agreement, (iv) the Series 1997-F Termination Date and (v) the first
Transfer Date relating to the Rapid Amortization Period (after taking
into account all payments to be made on such date), the Trustee, acting
in accordance with the instructions of the Servicer, after the prior
payment of all amounts owing to the Series 1997-F Certificateholders
that are payable from the Interest Reserve Account as provided herein,
shall withdraw from the Interest Reserve Account and pay to the Swap
Counterparty pursuant to the terms of the Interest Rate Swap, all
amounts, if any, on deposit in the Interest Reserve Account, and the
Interest Reserve Account shall be deemed to have terminated for purposes
of this Series Supplement.
SECTION 8. Article V of the Agreement. Article V of the
Agreement shall read in its entirety as follows and shall be applicable
only to the Investor Certificateholders:
ARTICLE V
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
SECTION 5.01 Distributions.
(yyy) On each Distribution Date, the Trustee shall
distribute (in accordance with the certificate delivered on or before
the related Transfer Date by the Servicer to the Trustee pursuant to
subsection 3.04(b)) to each Class A Certificateholder of record on the
immediately preceding Record Date (other than as provided in subsection
2.04(e) or Section 12.03 respecting a final distribution) such
Certificateholder's pro rata share (based on the aggregate Undivided
Interests represented by Class A Certificates held by such
Certificateholder) of amounts on deposit in the Distribution Account as
are payable to the Class A Certificateholders pursuant to Section 4.09
by check mailed to each Class A Certificateholder (at such
Certificateholder's address as it appears in the Certificate Register),
except that with respect to Class A Certificates registered in the name
of the nominee of a Clearing Agency, such distribution shall be made in
immediately available funds.
(zzz) On each Distribution Date, the Trustee shall
distribute (in accordance with the certificate delivered on or before
the related Transfer Date by the Servicer to the Trustee pursuant to
subsection 3.04(b)) to each Class B Certificateholder of record on the
immediately preceding Record Date (other than as provided in subsection
2.04(e) or Section 12.03 respecting a final distribution) such
Certificateholder's pro rata share (based on the aggregate Undivided
Interests represented by Class B Certificates held by such
Certificateholder) of amounts on deposit in the Distribution Account as
are payable to the Class B Certificateholders pursuant to Section 4.09
by check mailed to each Class B Certificateholder (at such
Certificateholder's address as it appears in the Certificate Register),
except that with respect to Class B Certificates registered in the name
of the nominee of a Clearing Agency, such distribution shall be made in
immediately available funds.
SECTION 5.02 Monthly Series 1997-F Certificateholders'
Statement.
(aaaa) On or before each Distribution Date, the Trustee
shall forward to each Series 1997-F Certificateholder, each Rating
Agency and the Collateral Interest Holder a statement substantially in
the form of Exhibit C to this Series Supplement prepared by the
Servicer, delivered to the Trustee and setting forth, among other
things, the following information (which, in the case of subclauses (i),
(ii) and (iii) below, shall be stated on the basis of an original
principal amount of $1,000 per Certificate and, in the case of
subclauses (ix) and (x) shall be stated on an aggregate basis and on the
basis of an original principal amount of $1,000 per Certificate, as
applicable):
(i) the amount of the current distribution;
(ii) the amount of the current distribution allocable to
Class A Monthly Principal, Class B Monthly Principal and
Collateral Monthly Principal, respectively;
(iii) the amount of the current distribution allocable to
Class A Monthly Interest, Class A Deficiency Amounts, Class A
Additional Interest, Class B Monthly Interest, Class B Deficiency
Amounts, Class B Additional Interest, Collateral Monthly Interest
and any past due Collateral Monthly Interest, respectively;
(iv) the amount of Collections of Principal Receivables
processed during the related Monthly Period and allocated in
respect of the Class A Certificates, the Class B Certificates and
the Collateral Interest, respectively;
(v) the amount of Collections of Finance Charge Receivables
processed during the related Monthly Period and allocated in
respect of the Class A Certificates, the Class B Certificates and
the Collateral Interest, respectively;
(vi) the aggregate amount of Principal Receivables, the
Investor Interest, the Adjusted Investor Interest, the Class A
Investor Interest, the Class A Adjusted Investor Interest, the
Class B Investor Interest, Class B Adjusted Investor Interest, the
Collateral Interest, the Floating Investor Percentage, the Class A
Floating Allocation, the Class B Floating Allocation, the
Collateral Floating Allocation and the Fixed Investor Percentage,
Class A Fixed Allocation, the Class B Fixed Allocation and the
Collateral Fixed Allocation with respect to the Principal
Receivables in the Trust as of the end of the day on the Record
Date;
(vii) the aggregate outstanding balance of Accounts which were
35 to 64, 65 to 94, 95 to 124, 125 to 154 and 155 or more days
delinquent as of the end of the day on the Record Date;
(viii) the Aggregate Investor Default Amount, the Class A
Investor Default Amount, the Class B Investor Default Amount and
the Collateral Default Amount for the related Monthly Period;
(ix) the aggregate amount of Class A Investor Charge-Offs,
Class B Investor Charge-Offs and Collateral Charge-Offs for the
related Monthly Period;
(x) the aggregate amount of Class A Investor Charge-Offs,
Class B Investor Charge-Offs and Collateral Charge-Offs reimbursed
on the Transfer Date immediately preceding such Distribution Date;
(xi) the amount of the Class A Servicing Fee, the Class B
Servicing Fee, the Collateral Interest Servicing Fee and the
Servicer Interchange for the related Monthly Period;
(xii) the Portfolio Yield for the preceding Monthly Period;
(xiii) the amount of Reallocated Collateral Principal
Collections and Reallocated Class B Principal Collections with
respect to such Distribution Date;
(xiv) the Class A Investor Interest, the Class A Adjusted
Investor Interest, the Class B Investor Interest, the Class B
Adjusted Investor Interest and the Collateral Interest as of the
close of business on such Distribution Date;
(xv) LIBOR for the Interest Period ending on such
Distribution Date;
(xvi) the Principal Funding Account Balance on the Transfer
Date;
(xvii) the Accumulation Shortfall;
(xviii) the Principal Funding Investment Proceeds transferred to
the Finance Charge Account to be treated as Class A Available
Funds and Class B Available Funds, respectively, on the related
Transfer Date;
(xix) the Principal Funding Investment Shortfall on the
related Transfer Date;
(xx) the amount of Class A Available Funds and Class B
Available Funds on deposit in the Finance Charge Account on the
related Transfer Date;
(xxi) such other items as are set forth in Exhibit C to this
Series Supplement.
(bbbb) Annual Certificateholders' Tax Statement. On or
before January 31 of each calendar year, beginning with calendar year
1998, the Trustee shall distribute to each Person who at any time during
the preceding calendar year was a Series 1997-F Certificateholder, a
statement prepared by the Servicer containing the information required
to be contained in the regular monthly report to Series 1997-F
Certificateholders, as set forth in subclauses (i), (ii) and (iii)
above, aggregated for such calendar year or the applicable portion
thereof during which such Person was a Series 1997-F Certificateholder,
together with such other customary information (consistent with the
treatment of the Certificates as debt) as the Servicer deems necessary
or desirable to enable the Series 1997-F Certificateholders to prepare
their tax returns. Such obligations of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any
requirements of the Internal Revenue Code as from time to time in
effect.
SECTION 9. Series 1997-F Pay Out Events. If any one of the
following events shall occur with respect to the Investor Certificates:
(cccc) failure on the part of the Seller (i) to make any
payment or deposit required by the terms of (A) the Agreement or (B)
this Series Supplement, on or before the date occurring five days after
the date such payment or deposit is required to be made herein or (ii)
duly to observe or perform in any material respect any covenants or
agreements of the Seller set forth in the Agreement or this Series
Supplement (including, without limitation, the covenant of the Seller
contained in Section 11 of this Series Supplement), which failure has a
material adverse effect on the Series 1997-F Certificateholders (which
determination shall be made without reference to whether any funds are
available under the Collateral Interest) and which continues unremedied
for a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Seller by the Trustee, or to the Seller and the Trustee by the Holders
of Investor Certificates evidencing Undivided Interests aggregating not
less than 50% of the Investor Interest of this Series 1997-F, and
continues to affect materially and adversely the interests of the Series
1997-F Certificateholders (which determination shall be made without
reference to whether any funds are available under the Collateral
Interest) for such period;
(dddd) any representation or warranty made by the Seller in
the Agreement or this Series Supplement, or any information contained in
a computer file or microfiche list required to be delivered by the
Seller pursuant to Section 2.01 or 2.06, (i) shall prove to have been
incorrect in any material respect when made or when delivered, which
continues to be incorrect in any material respect for a period of 60
days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Seller by the
Trustee, or to the Seller and the Trustee by the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than
50% of the Investor Interest of this Series 1997-F, and (ii) as a result
of which the interests of the Series 1997-F Certificateholders are
materially and adversely affected (which determination shall be made
without reference to whether any funds are available under the
Collateral Interest) and continue to be materially and adversely
affected for such period; provided, however, that a Series 1997-F Pay
Out Event pursuant to this subsection 9(b) hereof shall not be deemed to
have occurred hereunder if the Seller has accepted reassignment of the
related Receivable, or all of such Receivables, if applicable, during
such period in accordance with the provisions of the Agreement;
(eeee) the average of the Portfolio Yields for any three
consecutive Monthly Periods is less than the average of the Base Rates
for such period;
(ffff) the Seller shall fail to convey Receivables arising
under Additional Accounts, or Participations, to the Trust, as required
by subsection 2.06(a);
(gggg) any Servicer Default shall occur which would have a
material adverse effect on the Series 1997-F Certificateholders; or
(hhhh) the Class A Investor Interest and the Class B
Investor Interest shall not be paid in full on the Scheduled Payment
Date;
then, in the case of any event described in subsection 9(a), (b) or (e)
hereof, after the applicable grace period set forth in such
subparagraphs, if any, either the Trustee or Holders of Series 1997-F
Certificates and the Collateral Interest Holder evidencing Undivided
Interests aggregating not less than 50% of the Investor Interest of this
Series 1997-F by notice then given in writing to the Seller and the
Servicer (and to the Trustee if given by the Certificateholders) may
declare that a pay out event (a "Series 1997-F Pay Out Event") has
occurred as of the date of such notice, and in the case of any event
described in subsection 9(c), (d) or (f) hereof, a Series 1997-F Pay Out
Event shall occur without any notice or other action on the part of the
Trustee or the Investor Certificateholders immediately upon the
occurrence of such event.
SECTION 10. Series 1997-F Termination. The right of the
Investor Certificateholders to receive payments from the Trust will
terminate on the first Business Day following the Series 1997-F
Termination Date.
SECTION 11. Periodic Finance Charges and Other Fees. The
Seller hereby agrees that, except as otherwise required by any
Requirement of Law, or as is deemed by the Seller to be necessary in
order for the Seller to maintain its credit card business, based upon a
good faith assessment by the Seller, in its sole discretion, of the
nature of the competition in the credit card business, it shall not at
any time reduce the Periodic Finance Charges assessed on any Receivable
or other fees on any Account if, as a result of such reduction, the
Seller's reasonable expectation of the Portfolio Yield as of such date
would be less than the then Base Rate.
SECTION 12. Limitations on Addition of Accounts.
The Seller agrees that it shall not designate any Additional
Accounts pursuant to subsection 2.06(b) unless on or prior to the
related Addition Date, the Seller shall have provided the Collateral
Interest Holder with an Officer's Certificate certifying that such
designation of such Additional Accounts will not, as of the related
Addition Date, (a) be reasonably expected by the Seller to result in a
reduction or withdrawal by the Rating Agency of its rating for the
Investor Certificates or (b) cause a Series 1997-F Pay Out Event.
SECTION 13. Counterparts. This Series Supplement may be
executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all of such counterparts shall together
constitute but one and the same instrument.
SECTION 14. Governing Law. THIS SERIES SUPPLEMENT SHALL
BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE
WITH SUCH LAWS; PROVIDED, HOWEVER, THAT THE IMMUNITIES AND
STANDARD OF
CARE OF THE TRUSTEE IN THE ADMINISTRATION OF THE TRUST
HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Additional Notices.
(a) For so long as the Investor Certificates shall be
outstanding, the Seller agrees to provide Fitch with the notice provided
to each Rating Agency in subsection 2.06(c)(i) and agrees to provide to
Fitch and Standard and Poor's the Opinion of Counsel provided to Moody's
pursuant to subsection 2.06(c)(vi), in each case in the times and the
manner provided for in such subsections.
(b) The Seller shall notify the Collateral Interest Holder
promptly after becoming aware of any Lien on any Receivable other than
the conveyances under the Agreement. The Seller will notify the
Collateral Interest Holder of any merger, consolidation, assumption or
transfer referred to in Section 7.02.
SECTION 16. Additional Representations and Warranties of
the Servicer. MBNA America Bank, National Association, as initial
Servicer, hereby makes, and any Successor Servicer by its appointment
under the Agreement shall make the following representations and
warranties:
(iiii) All Consents. All authorizations, consents, orders
or approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Servicer in
connection with the execution and delivery of this Series Supplement by
the Servicer and the performance of the transactions contemplated by
this Series Supplement by the Servicer, have been duly obtained,
effected or given and are in full force and effect.
(jjjj) Rescission or Cancellation. The Servicer shall not
permit any rescission or cancellation of any Receivable except as
ordered by a court of competent jurisdiction or other Governmental
Authority or in accordance with the normal operating procedures of the
Servicer.
(kkkk) Receivables Not To Be Evidenced by Promissory Notes.
Except in connection with its enforcement or collection of an Account,
the Servicer will take no action to cause any Receivable to be evidenced
by an instrument (as defined in the UCC as in effect in the State of
Delaware).
SECTION 17. No Petition. The Seller, the Servicer and the
Trustee, by entering into this Series Supplement and each
Certificateholder, by accepting a Series 1997-F Certificate hereby
covenant and agree that they will not at any time institute against the
Trust, or join in any institution against the Trust of, any bankruptcy
proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Investor
Certificateholders, the Agreement or this Series Supplement.
SECTION 18. Certain Tax Related Amendments. In addition to
being subject to amendment pursuant to any other provisions relating to
amendments in either the Agreement or this Series Supplement, this
Series Supplement may be amended by the Seller without the consent of
the Servicer, Trustee or any Investor Certificateholder if the Seller
provides the Trustee with (i) an Opinion of Counsel to the effect that
such amendment or modification would reduce the risk the Trust would be
treated as taxable as a publicly traded partnership pursuant to Code
section 7704 and (ii) a certificate that such amendment or modification
would not materially and adversely affect any Investor
Certificateholder; provided, that no such amendment shall be deemed
effective without the Trustee's consent, if the Trustee's rights, duties
and obligations hereunder are thereby modified. Promptly after the
effectiveness of any amendment pursuant to this Section 18, the Seller
shall deliver a copy of such amendment to each of the Servicer, the
Trustee and each Rating Agency.
SECTION 19. Tax Representation and Covenant. Any holder of
an interest in the Trust acquired pursuant to Section 12.01(b) in
respect of the Series 1997-F Certificates shall be required to represent
and covenant in connection with such acquisition that (x) it has neither
acquired, nor will it sell, trade or transfer any interest in the Trust
or cause any interest in the Trust to be marketed on or through either
(i) an "established securities market" within the meaning of Code
section 7704(b)(1), including without limitation an interdealer
quotation system that regularly disseminates firm buy or sell quotations
by identified brokers or dealers by electronic means or otherwise or
(ii) a "secondary market (or the substantial equivalent thereof)" within
the meaning of Code section 7704(b)(2), including a market wherein
interests in the Trust are regularly quoted by any person making a
market in such interests and a market wherein any person regularly makes
available bid or offer quotes with respect to interests in the Trust and
stands ready to effect buy or sell transactions at the quoted prices for
itself or on behalf of others, (y) unless the Seller consents otherwise,
such holder (i) is properly classified as, and will remain classified
as, a "corporation" as described in Code section 7701(a)(3) and (ii) is
not, and will not become, an S corporation as described in Code section
1361, and (z) it will (i) cause any participant with respect to such
interest otherwise permitted hereunder to make similar representations
and covenants for the benefit of the Seller and the Trust and (ii)
forward a copy of such representations and covenants to the Trustee.
Each such holder shall further agree in connection with its acquisition
of such interest that, in the event of any breach of its (or its
participant's) representation and covenant that it (or its participant)
is and shall remain classified as a corporation other than an S
corporation, the Seller shall have the right to procure a replacement
investor to replace such holder (or its participant), and further that
such holder shall take all actions necessary to permit such replacement
investor to succeed to its rights and obligations as a holder (or to the
rights of its participant).
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee
have caused this Series 1997-F Supplement to be duly executed by their
respective officers as of the day and year first above written.
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
Seller and Servicer
By:____________________________
Name: Jerry M. Hamstead
Title: Vice President
THE BANK OF NEW YORK,
Trustee
By:_______________________________
Name: Joseph G. Ernst
Title: Assistant Vice President
EXHIBIT A-1
FORM OF CERTIFICATE
CLASS A
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to MBNA America Bank, National
Association or its agent for registration of transfer,
exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name
as requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
No. __ $__________
CUSIP No. __________
MBNA MASTER CREDIT CARD TRUST II
CLASS A 6.60%
ASSET BACKED CERTIFICATE, SERIES 1997-F
Evidencing an Undivided Interest in a trust, the corpus of which
consists of a portfolio of MasterCard registered trademark and VISA
registered trademark credit card receivables generated or acquired by
MBNA America Bank, National Association and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement
described below.
(Not an interest in or obligation of
MBNA America Bank, National Association
or any Affiliate thereof.)
This certifies that CEDE & CO. (the "Class A
Certificateholder") is the registered owner of an Undivided Interest in
a trust (the "Trust"), the corpus of which consists of a portfolio of
receivables (the "Receivables") now existing or hereafter created and
arising in connection with selected MasterCard and VISA credit card
accounts (the "Accounts") of MBNA America Bank, National Association, a
national banking association organized under the laws of the United
States, all monies due or to become due in payment of the Receivables
(including all Finance Charge Receivables but excluding recoveries on
any charged-off Receivables), the right to certain amounts received as
Interchange with respect to the Accounts, the benefits of the Collateral
Interest and the other assets and interests constituting the Trust
pursuant to a Pooling and Servicing Agreement dated as of August 4,
1994, as amended as of March 11, 1996, as supplemented by the Series
1997-F Supplement dated as of June 18, 1997 (collectively, the "Pooling
and Servicing Agreement"), by and between MBNA America Bank, National
Association, as Seller (the "Seller") and as Servicer (the "Servicer"),
and The Bank of New York, as Trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereinbelow.
The Series 1997-F Certificates are issued in two classes, the Class A
Certificates (of which this certificate is one) and the Class B
Certificates, which are subordinated to the Class A Certificates in
certain rights of payment as described herein and in the Pooling and
Servicing Agreement.
The Seller has structured the Pooling and Servicing
Agreement and the Series 1997-F Certificates with the intention that the
Series 1997-F Certificates will qualify under applicable tax law as
indebtedness, and each of the Seller, the Holder of the Seller
Certificate, the Servicer and each Series 1997-F Certificateholder (or
Series 1997-F Certificate Owner) by acceptance of its Series 1997-F
Certificate (or in the case of a Series 1997-F Certificate Owner, by
virtue of such Series 1997-F Certificate Owner's acquisition of a
beneficial interest therein), agrees to treat and to take no action
inconsistent with the treatment of the Series 1997-F Certificates (or
any beneficial interest therein) as indebtedness for purposes of
federal, state, local and foreign income or franchise taxes and any
other tax imposed on or measured by income. Each Series 1997-F
Certificateholder agrees that it will cause any Series 1997-F
Certificate Owner acquiring an interest in a Series 1997-F Certificate
through it to comply with the Pooling and Servicing Agreement as to
treatment of the Series 1997-F Certificates as indebtedness for certain
tax purposes.
To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Class A Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Class A Certificateholder by virtue of
the acceptance hereof assents and by which the Class A Certificateholder
is bound.
Although a summary of certain provisions of the Pooling and
Servicing Agreement is set forth below, this Class A Certificate is
qualified in its entirety by the terms and provisions of the Pooling and
Servicing Agreement and reference is made to that Pooling and Servicing
Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the
rights, duties and obligations of the Trustee.
Interest will accrue on the Class A Certificates at the rate
of 6.60% per annum from the Closing Date (the "Class A Certificate
Rate"), as more specifically set forth in the Pooling and Servicing
Agreement, and will be distributed on August 15, 1997 and on the 15th
day of each calendar month thereafter, or if such day is not a Business
Day, on the next succeeding Business Day (a "Distribution Date"), to the
Class A Certificateholders of record as of the last Business Day of the
calendar month preceding such Distribution Date. During the Rapid
Amortization Period, in addition to Class A Monthly Interest, Class A
Monthly Principal will be distributed to the Class A Certificateholders
on the Distribution Date of each calendar month commencing in the month
following the commencement of the Rapid Amortization Period until the
Class A Certificates have been paid in full. During the Controlled
Accumulation Period and the Rapid Accumulation Period, in addition to
monthly payments of Class A Monthly Interest, the amount on deposit in
the Principal Funding Account will be distributed as principal to the
Class A Certificateholders on the June 2002 Distribution Date, unless
distributed earlier as a result of the commencement of the Rapid
Amortization Period in accordance with the Pooling and Servicing
Agreement.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Class A Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, MBNA America Bank, National Association
has caused this Series 1997-F Class A Certificate to be duly executed
under its official seal.
By:_______________________________
Authorized Officer
[Seal]
Attested to:
By:________________________
Cashier
Date: June 18, 1997
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
This is one of the Series 1997-F Class A Certificates
referred to in the within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK,
Trustee
By:________________________
Authorized Signatory
Date: June 18, 1997
EXHIBIT A-2
FORM OF CERTIFICATE
CLASS B
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to MBNA America Bank, National
Association or its agent for registration of transfer,
exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name
as requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
No. __ $__________
CUSIP No. __________
MBNA MASTER CREDIT CARD TRUST II
CLASS B FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1997-F
Evidencing an Undivided Interest in a trust, the corpus of which
consists of a portfolio of MasterCard registered trademark and VISA
registered trademark credit card receivables generated or acquired by
MBNA America Bank, National Association and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement
described below.
(Not an interest in or obligation of
MBNA America Bank, National Association
or any Affiliate thereof.)
This certifies that CEDE & CO. (the "Class B
Certificateholder") is the registered owner of an Undivided Interest in
a trust (the "Trust"), the corpus of which consists of a portfolio of
receivables (the "Receivables") now existing or hereafter created and
arising in connection with selected MasterCard and VISA credit card
accounts (the "Accounts") of MBNA America Bank, National Association, a
national banking association organized under the laws of the United
States, all monies due or to become due in payment of the Receivables
(including all Finance Charge Receivables but excluding recoveries on
any charged-off Receivables), the right to certain amounts received as
Interchange with respect to the Accounts, the benefits of the Collateral
Interest and the other assets and interests constituting the Trust
pursuant to a Pooling and Servicing Agreement dated as of August 4,
1994, as amended as of March 11, 1996, as supplemented by the Series
1997-F Supplement dated as of June 18, 1997 (collectively, the "Pooling
and Servicing Agreement"), by and between MBNA America Bank, National
Association, as Seller (the "Seller") and as Servicer (the "Servicer"),
and The Bank of New York, as Trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereinbelow.
The Series 1997-F Certificates are issued in two classes, the Class A
Certificates and the Class B Certificates (of which this certificate is
one), which are subordinated to the Class A Certificates in certain
rights of payment as described herein and in the Pooling and Servicing
Agreement.
The Seller has structured the Pooling and Servicing
Agreement and the Series 1997-F Certificates with the intention that the
Series 1997-F Certificates will qualify under applicable tax law as
indebtedness, and each of the Seller, the Holder of the Seller
Certificate, the Servicer and each Series 1997-F Certificateholder (or
Series 1997-F Certificate Owner) by acceptance of its Series 1997-F
Certificate (or in the case of a Series 1997-F Certificate Owner, by
virtue of such Series 1997-F Certificate Owner's acquisition of a
beneficial interest therein), agrees to treat and to take no action
inconsistent with the treatment of the Series 1997-F Certificates (or
any beneficial interest therein) as indebtedness for purposes of
federal, state, local and foreign income or franchise taxes and any
other tax imposed on or measured by income. Each Series 1997-F
Certificateholder agrees that it will cause any Series 1997-F
Certificate Owner acquiring an interest in a Series 1997-F Certificate
through it to comply with the Pooling and Servicing Agreement as to
treatment of the Series 1997-F Certificates as indebtedness for certain
tax purposes.
To the extent not defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Class B Certificate is issued under and is
subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Class B Certificateholder by virtue of
the acceptance hereof assents and by which the Class B Certificateholder
is bound.
Although a summary of certain provisions of the Pooling and
Servicing Agreement is set forth below, this Class B Certificate is
qualified in its entirety by the terms and provisions of the Pooling and
Servicing Agreement and reference is made to that Pooling and Servicing
Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the
rights, duties and obligations of the Trustee.
Interest will accrue on the Class B Certificates from the
Closing Date through July 14, 1997 and from July 15, 1997 through August
14, 1997 and with respect to each Interest Period thereafter, at the
rate of 0.29% per annum above LIBOR, as more specifically set forth in
the Pooling and Servicing Agreement, and will be distributed on August
15, 1997 and on the 15th day of each calendar month thereafter, or if
such day is not a Business Day, on the next succeeding Business Day (a
"Distribution Date"), to the Class B Certificateholders of record as of
the last Business Day of the calendar month preceding such Distribution
Date. During the Rapid Amortization Period, in addition to Class B
Monthly Interest, Class B Monthly Principal will be distributed to the
Class B Certificateholders on each Distribution Date commencing in the
month on which the Class A Investor Interest is paid in full. During
the Rapid Accumulation Period after the Principal Funding Account
Balance equals the Class A Investor Interest, in addition to monthly
payments of Class B Monthly Interest, the amount on deposit in the
Principal Funding Account in excess of the Class A Investor Interest and
in an amount not to exceed the Class B Investor Interest and Available
Investor Principal Collections not required to be deposited into the
Principal Funding Account in respect of the Class A Investor Interest
will be distributed as principal to the Class B Certificateholders.
During the Controlled Accumulation Period following the payment in full
of the Class A Investor Interest, the amount on deposit in the Principal
Funding Account in excess of the Class A Investor Interest and in an
amount not to exceed the Class B Investor Interest will be distributed
as principal to the Class B Certificateholders on the June 2002
Distribution Date, unless distributed earlier as a result of the
occurrence of a Pay Out Event.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Class B Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, MBNA America Bank, National Association
has caused this Series 1997-F Class B Certificate to be duly executed
under its official seal.
By:_______________________________
Authorized Officer
[Seal]
Attested to:
By:________________________
Cashier
Date: June 18, 1997
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
This is one of the Series 1997-F Class B Certificates
referred to in the within-mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK
Trustee
By:________________________
Authorized Signatory
Date: June 18, 1997
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND NOTIFICATION
TO THE TRUSTEE
MBNA AMERICA BANK, NATIONAL ASSOCIATION
MBNA MASTER CREDIT CARD TRUST II SERIES 1997-F
MONTHLY PERIOD ENDING _________ ____, ____
Capitalized terms used in this notice have their respective meanings set
forth in the Pooling and Servicing Agreement. References herein to
certain sections and subsections are references to the respective
sections and subsections of the Pooling and Servicing Agreement as
supplemented by the Series 1997-F Supplement. This notice is delivered
pursuant to Section 4.09.
A) MBNA is the Servicer under the Pooling and Servicing
Agreement.
B) The undersigned is a Servicing Officer.
C) The date of this notice is on or before the related Transfer
Date under the Pooling and Servicing Agreement.
II. INSTRUCTION TO MAKE A WITHDRAWAL
Pursuant to Section 4.09, the Servicer does hereby instruct the Trustee
(i) to make withdrawals from the Finance Charge Account, the Principal
Account, and the Principal Funding Account on _________ ____, ____,
which date is a Transfer Date under the Pooling and Servicing Agreement,
in aggregate amounts set forth below in respect of the following amounts
and (ii) to apply the proceeds of such withdrawals in accordance with
subsection 3(a) of the Series 1997-F Supplement and Section 4.09 of the
Pooling and Servicing Agreement:
A.Pursuant to subsection 3(a) of the Series 1997-F Supplement:-----
- ---1.-Servicer Interchange-$___________
B.Pursuant to subsection 4.09(a)(i):-----
- ---1.-Class A Monthly Interest at the Class A Certificate Rate on the
Class A Investor Interest-$___________
- ---2.-Class A Deficiency Amount-$___________
- ---3.-Class A Additional Interest-$___________
C.Pursuant to Subsection 4.09(a) (ii):-----
- ---1.-Net Swap Payment, if any,-$___________
- ---2.-Net Swap Payments due but not paid on any prior Transfer Date-
$___________
D.Pursuant to subsection 4.09(a)(iii):-----
- ---1.-Class A Servicing Fee-$___________
- ---2.-Accrued and unpaid Class A Servicing Fee-$___________
E.Pursuant to subsection 4.09(a)(iv):-----
- ---1.-Class A Investor Default Amount-$___________
F.Pursuant to subsection 4.09(a)(v):-----
- ---1.-Portion of Excess Spread from Class A Available Funds to be
allocated and distributed as provided in Section 4.11-$___________
G.Pursuant to subsection 4.09(b)(i):-----
- ---1.-Class B Monthly Interest at the Class B Certificate Rate on the
Class B Investor Interest-$___________
- ---2.-Class B Deficiency Amount-$___________
- ---3.-Class B Additional Interest-$___________
H.Pursuant to subsection 4.09(b)(ii):-----
- ---1.-Class B Servicing Fee-$___________
- ---2.-Accrued and unpaid Class B Servicing Fee-$___________
I.Pursuant to subsection 4.09(b)(iii):-----
- ---1.-Portion of Excess Spread from Class B Available Funds to be
allocated and distributed as provided in Section 4.11-$___________
J.Pursuant to subsection 4.09(c)(i):-----
- ---1.-Collateral Interest Servicing Fee, if applicable-$___________
- ---2.-Accrued and unpaid Collateral Interest Servicing Fee, if
applicable-$___________
K.Pursuant to subsection 4.09(c)(ii):-----
- ---1.-Portion of Excess Spread from Collateral Available Funds to be
allocated and distributed as provided in Section 4.11-$___________
- ----Total-$
L.Pursuant to subsection 4.09(d)(i):-----
- ---1.-Collateral Monthly Principal, if any, applied in accordance with
the Loan Agreement-$___________
M.Pursuant to subsection 4.09(d)(ii):-----
- ---1.-Amount to be treated as Shared Principal Collections-$___________
N.Pursuant to subsection 4.09(d)(iii):-----
- ---1.-Amount to be paid to the Holder of the Seller Certificate-
$___________
- ---2.-Unallocated Principal Collections-$___________
O.Pursuant to subsection 4.09(e)(i):-----
- ---1.-Class A Monthly Principal-$___________
P.Pursuant to subsection 4.09(e)(ii):-----
- ---1.-Class B Monthly Principal-$___________
Q.Pursuant to subsection 4.09(e)(iii)-----
- ---1.-Collateral Monthly Principal -$___________
R.Pursuant to subsection 4.09(e)(iv):-----
- ---1.-Amount to be treated as Shared Principal Collections-$___________
S.Pursuant to subsection 4.09(e)(v):-----
- ---1.-Amount to be paid to the Holder of the Seller Certificate-
$___________
- ---2.-Unallocated Principal Collections-$___________
- ----Total-$
T.Pursuant to subsection 4.09(f):-----
- ---1.-Amount to be withdrawn from the Principal Funding Account and
deposited into the Distribution Account-$___________
II.---INSTRUCTION TO MAKE CERTAIN PAYMENTS--
Pursuant to Section 4.09, the Servicer does hereby instruct the Trustee
to pay in accordance with Section 5.01 from the Distribution Account on
_________ ____, ____, which date is a Distribution Date under the
Pooling and Servicing Agreement, amounts so deposited in the
Distribution Account pursuant to Section 4.09 as set forth below:
A.Pursuant to subsection 4.09(g);
- -----
- ---1.-Amount to be distributed to Class A Certificateholders-
$___________
- ---2.-Amount to be distributed to Class B Certificateholders-
$___________
B.Pursuant to subsection 4.09(h)(i):-----
- ---1.-Amount to be distributed to the Class A Certificateholders-
$___________
C.Pursuant to subsection 4.09(h)(ii):-----
- ---1.-Amount to be distributed to the Class B Certificateholders-
$___________
- -----
III.---APPLICATION OF EXCESS SPREAD--
Pursuant to Section 4.11, the Servicer does hereby instruct the Trustee
to apply the Excess Spread with respect to the related Monthly Period
and to make the following distributions in the following priority:-----
A.---The amount equal to the Class A Required Amount, if any, which will
be used to fund the Class A Required Amount and be applied in accordance
with, and in the priority set forth in, subsection 4.09(a)--$___________
B.
- ---The amount equal to the aggregate amount of Class A Investor Charge-
Offs which have not been previously reimbursed (after giving effect to
the allocation on such Transfer Date of certain other amounts applied
for that purpose) which will be treated as a portion of Investor
Principal Collections and deposited into the Principal Account on such
Transfer Date--$___________
C.---The amount equal to the Class B Required Amount, if any, which will
be used to fund the Class B Required Amount and be applied first in
accordance with, and in the priority set forth in, subsection 4.09(b)
and then any amount available to pay the Class B Investor Default Amount
shall be treated as a portion of Investor Principal Collections and
deposited into the Principal Account--$___________
D.---The amount equal to the aggregate amount by which the Class B
Investor Interest has been reduced below the initial Class B Investor
Interest for reasons other than the payment of principal to the Class B
Certificateholders (but not in excess of the aggregate amount of such
reductions which have not been previously reimbursed) which will be
treated as a portion of Investor Principal Collections and deposited
into the Principal Account--$___________
E.---The amount equal to the Collateral Monthly Interest plus the amount
of any past due Collateral Monthly Interest which will be paid to the
Collateral Interest Holder for application in accordance with the Loan
Agreement--$___________
F.---The amount equal to the aggregate amount of accrued but unpaid
Collateral Interest Servicing Fees which will be paid to the Servicer if
the Seller or The Bank of New York is the Servicer,--$___________
G.---The amount equal to the Collateral Default Amount, if any, for the
prior Monthly Period which will be treated as a portion of Investor
Principal Collections and deposited into the Principal Account--
$___________
H.---The amount equal to the aggregate amount by which the Collateral
Interest has been reduced below the Required Collateral Interest for
reasons other than the payment of principal to the Collateral Interest
Holder (but not in excess of the aggregate amount of such reductions
which have not been previously reimbursed) which will be treated as a
portion of Investor Principal Collections and deposited into the
Principal Account--$___________
I.---On each Transfer Date from and after the Reserve Account Funding
Date, but prior to the date on which the Reserve Account terminates as
described in subsection 4.15(f), the amount up to the excess, if any, of
the Required Reserve Account Amount over the Available Reserve Account
Amount which shall be deposited into the Reserve Account--$___________
J.---The balance, if any, after giving effect to the payments made
pursuant to subparagraphs (a) through (i) above which shall be deposited
into the Distribution Account and applied, to the extent required, in
accordance with the Loan Agreement.--$___________
- -----
IV.---REALLOCATED PRINCIPAL COLLECTIONS--
Pursuant to Section 4.12, the Servicer does hereby instruct the Trustee
to withdraw from the Principal Account and apply Reallocated Principal
Collections pursuant to Section 4.12 with respect to the related Monthly
Period in the following amounts:-----
A.Reallocated Collateral Principal Receivables-----$___________
B.Reallocated Class B Principal Receivables-----$___________
V.---ACCRUED AND UNPAID AMOUNTS--
After giving effect to the withdrawals and transfers to be made in
accordance with this notice, the following amounts will be accrued and
unpaid with respect to all Monthly Periods preceding the current
calendar month-----
A. Subsections 4.09(a)(i) and (b)(i):---
- -(1)-The aggregate amount of the Class A Deficiency Amount-$___________
- -(2)-The aggregate amount of the Class B Deficiency Amount-$___________
B. Subsections 4.09(a)(iii) and (b)(ii):---
- -(1)-The aggregate amount of all accrued and unpaid Investor Monthly
Servicing Fees-$___________
C. Section 4.10:---
- -(1)-The aggregate amount of all unreimbursed Investor Charge Offs-
$___________
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate this __ day of __________, ____.
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
Servicer
By:_________________________
Name:
Title:
EXHIBIT C
FORM OF MONTHLY SERIES 1997-F CERTIFICATEHOLDERS'
STATEMENT
Series 1997-F
MBNA AMERICA BANK, NATIONAL ASSOCIATION
_____________________________________________
MBNA MASTER CREDIT CARD TRUST II
_____________________________________________
The information which is required to be prepared with respect to
the distribution date of ________ ____, ____ and with respect to the
performance of the Trust during the related Monthly Period.
Capitalized terms used in this Statement have their respective
meanings set forth in the Pooling and Servicing Agreement.
A.-Information Regarding the Current Monthly Distribution (Stated on the
Basis of $1,000 Original Certificate Principal Amount)---
- -1.-The amount of the current monthly distribution in respect of Class A
Monthly Principal--$__________
- -2.-The amount of the current monthly distribution in respect of Class B
Monthly Principal--$__________
- -3.-The amount of the current monthly distribution in respect of
Collateral Monthly Principal--$__________
- -4.-The amount of the current monthly distribution in respect of Class A
Monthly Interest --$__________
- -5.-The amount of the current monthly distribution in respect of Class A
Deficiency Amounts--$__________
- -6.-The amount of the current monthly distribution in respect of Class A
Additional Interest--$__________
- -7.-The amount of the current monthly distribution in respect of Class B
Monthly Interest--$__________
- -8.-The amount of the current monthly distribution in respect of Class B
Deficiency Amounts--$__________
- -9.-The amount of the current monthly distribution in respect of Class B
Additional Interest--$__________
- -10.-The amount of the current monthly distribution in respect of
Collateral Monthly Interest--$__________
- -11.-The amount of the current monthly distribution in respect of any
accrued and unpaid Collateral Monthly Interest--$__________
B.-Information Regarding the Performance of the Trust---
- -1.Collection of Principal Receivables---
- --(a)-The aggregate amount of Collections of Principal Receivables
processed during the related Monthly Period which were allocated in
respect of the Class A Certificates-$__________
- --(b)-The aggregate amount of Collections of Principal Receivables
processed during the related Monthly Period which were allocated in
respect of the Class B Certificates-$__________
- --(c)-The aggregate amount of Collections of Principal Receivables
processed during the related Monthly Period which were allocated in
respect of the Collateral Interest-$__________
- -2.-Principal Receivables in the Trust--
- --(a)-The aggregate amount of Principal Receivables in the Trust as of
the end of the day on the last day of the related Monthly Period-
$__________
- --(b)-The amount of Principal Receivables in the Trust represented by
the Investor Interest of Series 1997-F as of the end of the day on the
last day of the related Monthly Period-$__________
- --(c)-The amount of Principal Receivables in the Trust represented by
the Series 1997-F Adjusted Investor Interest as of the end of the day on
the last day of the related Monthly Period-$__________
- --(d)-The amount of Principal Receivables in the Trust represented by
the Class A Investor Interest as of the end of the day on the last day
of the related Monthly Period-$__________
- --(e)-The amount of Principal Receivables in the Trust represented by
the Class A Adjusted Investor Interest as of the end of day on the last
day of the related Monthly Period -$__________
- --(f)-The amount of Principal Receivables in the Trust represented by
the Class B Investor Interest as of the end of the day on the last day
of the related Monthly Period -$__________
- --(g)-The amount of Principal Receivables in the Trust represented by
the Class B Adjusted Investor Interest as of the end of the day on the
last day of the related Monthly Period-$__________
- --(h)-The amount of Principal Receivables in the Trust represented by
the Collateral Interest as of the end of the day on the last day of the
related Monthly Period -$__________
- --(i)-The Floating Investor Percentage with respect to the related
Monthly Period -____%
- --(j)-The Class A Floating Allocation with respect to the related
Monthly Period-____%
- --(k)-The Class B Floating Allocation with respect to the related
Monthly Period-____%
- --(l)-The Collateral Floating Allocation with respect to the related
Monthly Period-____%
- --(m)-The Fixed Investor Percentage with respect to the related Monthly
Period-____%
- --(n)-The Class A Fixed Allocation with respect to the related Monthly
Period-____%
- --(o)-The Class B Fixed Allocation with respect to the related Monthly
Period -____%
- --(p)-The Collateral Fixed Allocation with respect to the related
Monthly Period-____%
- -3.-Delinquent Balances--
- --The aggregate amount of outstanding balances in the Accounts which
were delinquent as of the end of the day on the last day of the related
Monthly Period:--
- --Aggregate
Account
Balance --Percentage
of Total
Receivables
- ----
- -(a)- 35 - 64 days:-$__________-____%
- -(b)- 65 - 94 days:-$__________-____%
- -(c)- 95 - 124 days:-$__________-____%
- -(d)-125 - 154 days:-$__________-____%
- -(e)-155 - or more days:-$__________-____%
- --Total: -$__________-____%
- -4.-Investor Default Amount--
- --(f)-The Aggregate Investor Default Amount for the related Monthly
Period-$__________
- --(g)-The Class A Investor Default Amount for the related Monthly
Period-$__________
- --(h)-The Class B Investor Default Amount for the related Monthly
Period-$__________
- --(i)-The Collateral Default
Amount for the related Monthly Period-$__________
- -5.-Investor Charge Offs--
- --(a)-The aggregate amount of Class A Investor Charge Offs for the
related Monthly Period-$__________
- --(b)-The aggregate amount of Class A Investor Charge Offs set forth in
5(a) above per $1,000 of original certificate principal amount-
$__________
- --(c)-The aggregate amount of Class B Investor Charge Offs for the
related Monthly Period-$__________
- --(d)-The aggregate amount of Class B Investor Charge Offset forth in
5(c) above per $1,000 of original certificate principal amount-
$__________
- --(e)-The aggregate amount of Collateral Charge Offs for the related
Monthly Period-$__________
- --(f)-The aggregate amount of Collateral Charge Offs set forth in 5(e)
above per $1,000 of original certificate principal amount-$__________
- --(g)-The aggregate amount of Class A Investor Charge Offs reimbursed on
the Transfer Date immediately preceding this Distribution Date-
$__________
- --(h)-The aggregate amount of Class A Investor Charge Offs set forth in
5(g) above per $1,000 original certificate principal amount reimbursed
on the Transfer Date immediately preceding this Distribution Date-
$__________
- --(i)-The aggregate amount of Class B Investor Charge Offs reimbursed on
the Transfer Date immediately preceding this Distribution Date-
$__________
- --(j)-The aggregate amount of Class B Investor Charge Offs set forth in
5(i) above per $1,000 original certificate principal amount reimbursed
on the Transfer Date immediately preceding this Distribution Date-
$__________
- --(k)-The aggregate amount of Collateral Charge Offs reimbursed on the
Transfer Date immediately preceding this Distribution Date-$__________
- --(l)-The aggregate amount of Collateral Charge Offs set forth in 5(k)
above per $1,000 original certificate principal amount reimbursed on the
Transfer Date immediately preceding Distribution Date-$__________
- -6.-Investor Servicing Fee--
- --(a)-The amount of the Class A Servicing Fee payable by the Trust to
the Servicer for the related Monthly Period-$__________
- --(b)-The amount of the Class B Servicing Fee payable by the Trust to
the Servicer for the related Monthly Period-$__________
- --(c)-The amount of the Collateral Interest Servicing Fee payable by the
Trust to the Servicer for the related Monthly Period-$__________
- --(d)-The amount of Servicer Interchange payable by the Trust to the
Servicer for the related Monthly Period-$__________
- -7.Reallocations---
- --(a)-The amount of Reallocated Collateral Principal Collections with
respect to this Distribution Date-$__________
- --(b)-The amount of Reallocated Class B Principal Collections with
respect to this Distribution Date-$__________
- --(c)-The Collateral Interest as of the close of business on this
Distribution Date-$__________
- --(d)-The Class B Investor Interest as of the close of business on this
Distribution Date-$__________
- --(e)-The Class B Adjusted Investor Interest as of the close of business
on this Distribution Date-$__________
- --(f)-The Class A Investor Interest as of the close of business on this
Distribution Date-$__________
- --(g)-The Class A Adjusted Investor Interest as of the close of business
on this Distribution Date-$__________
- -8.Collection of Finance Charge Receivables---
- --(a)-The aggregate amount of Collections of Finance Charge Receivables
and Annual Membership Fees processed during the related Monthly Period
which were allocated in respect of the Class A Certificates-$__________
- --(b)-The aggregate amount of Collections of Finance Charge Receivables
and Annual Membership Fees processed during the related Monthly Period
which were allocated in respect of the Class B Certificates-$_________
- --(c)-The aggregate amount of Collections of Finance Charge Receivables
and Annual Membership Fees processed during the related Monthly Period
which were allocated in respect of the Collateral Interest-$__________
- ----
- -9.Principal Funding Account---
- --(a)-The principal amount on deposit in the Principal Funding Account
on the related Transfer Date-$__________
- --(b)-The Accumulation Shortfall with respect to the related Monthly
Period-$__________
- --(c)-The Principal Funding Investment Proceeds deposited in the Finance
Charge Account on the related Transfer Date to be treated as Class A
Available Funds-$__________
- --(d)-The Principal Funding Investment Proceeds deposited in the Finance
Charge Account on the related Transfer Date to be treated as Class B
Available Funds-$__________
- -10.-Reserve Account--
- --(a)-The Reserve Draw Amount on the related Transfer Date-$__________
- --(b)-The amount of the Reserve Draw Amount deposited in the Finance
Charge Account on the related Transfer Date to be treated as Class A
Available Funds-$__________
- --(c)-The amount of the Reserve Draw Amount deposited in the Finance
Charge Account on the related Transfer Date to be treated as Class B
Available Funds-$__________
- -[11.-Swap Reserve Fund
(a)The Swap Reserve Draw Amount on the related Transfer Date--
$__________
- --(b)The amount of the Swap Reserve Draw Amount deposited in the Finance
Charge Account on the related Transfer Date to be treated as Class A
Available Funds--$__________]
- -12.-Swap Cash Flows--
- --(a)-The amount of the Net Swap Receipt for the related Transfer Date-
$__________
- --(b)-The amount of the Net Swap Payment for the related Transfer Date-
$__________
- -13.-Available Funds--
- --(a)-The amount of Class A Available Funds on deposit in the Finance
Charge Account on the related Transfer Date-$__________
- --(b)-The amount of Class B Available Funds on deposit in the Finance
Charge Account on the related Transfer Date-$__________
- -14.-Portfolio Yield--
- --(a)-The Portfolio Yield for the related Monthly Period-____%
- --(b)
- -The Portfolio Adjusted Yield for the related Monthly
Period-____%
C.Floating Rate Determinations----
- -1.-LIBOR for the Interest Period ending on this Distribution Date--
____%
D.Information Regarding the Status of the
Interest Rate Swap and the Swap Counterparty----
- -1.-Has the Interest Reserve Account been established?--_____
- -2.-Has the Interest Reserve Account been funded?--_____
- -3.-The aggregate amount of funds withdrawn from the Interest Reserve
Account, if any--$__________
- -4.-How any funds withdrawn from the Interest Reserve Account were
utilized--
____
- -5.-Has the Interest Rate Swap been terminated?--____
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
Servicer
By:_________________________
Name:
Title:
SCHEDULE TO EXHIBIT C
SCHEDULE TO MONTHLY SERVICER'S CERTIFICATE
MONTHLY PERIOD ENDING _________ ____, ____
MBNA AMERICA BANK, NATIONAL ASSOCIATION
MBNA MASTER CREDIT CARD TRUST II SERIES 1997-F
1.--The aggregate amount of the Investor Percentage of Collections of
Principal Receivables--$__________
2.--The aggregate amount of the Investor Percentage of Collections of
Finance Charge Receivables (excluding Interchange and amounts with
respect to Annual Membership Fees)--$__________
3.--The aggregate amount of the Investor Percentage of amounts with
respect to Annual Membership Fees--$__________
4.--The aggregate amount of the Investor Percentage of Interchange--
$__________
5.--The aggregate amount of Servicer Interchange--$__________
6.--The aggregate amount of funds on deposit in Finance Charge Account
allocable to the Series 1997-F Certificates--$__________
7.--The aggregate amount of funds on deposit in the Principal Account
allocable to the Series 1997-F Certificates--$__________
8.--The aggregate amount of funds on deposit in the Principal Funding
Account allocable to the Series 1997-F Certificates--$___________
9.--The aggregate amount to be withdrawn from the Finance Charge Account
and paid in accordance with the Loan Agreement pursuant to Section 4.11-
- -$__________
10.--The excess, if any, of the Required Collateral Interest over the
Collateral Interest--$__________
11.--The Collateral Interest on the Transfer Date of the current
calendar month, after giving effect to the deposits and withdrawals
specified above, is equal to--$__________
12.--The amount of Monthly Interest, Deficiency Amounts and Additional
Interest payable to the
(i) Class A Certificateholders--$__________
- --(ii) Class B Certificateholders--$__________
13.--The amount of principal payable to the (i) Class A
Certificateholders --$___________
- --(ii) Class B Certificateholders --$___________
- --(iii) Collateral Interest Holder --$___________
14.--The sum of all amounts payable to the (i) Class A
Certificateholders --$___________
- --(ii) Class B Certificateholders --$___________
- --(iii) Collateral Interest Holder--$___________
15.--To the knowledge of the undersigned, no Series 1997-F Pay Out Event
or Trust Pay Out Event has occurred except as described below: --
- ---None-
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Certificate this __ day of __________, ____.
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
By:_________________________
Name:
Title:
(..continued)
DC1-22971.11
(Multicurrency-Cross Border)
ISDA registered trademark
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of June 18, 1997
Deutsche Bank AG, New York Branch and MBNA Master Credit Card Trust II
have entered and/or anticipate entering into one or more transactions
(each a "Transaction") that are or will be governed by this Master
Agreement, which includes the schedule (the "Schedule"), and the
documents and other confirming evidence (each a "Confirmation")
exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as follows:-
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule
will have the meanings therein specified for the purpose of this Master
Agreement.
(b) Inconsistency. In the event of any inconsistency between the
provisions of the Schedule and the other provisions of this Master
Agreement, the Schedule will prevail. In the event of any inconsistency
between the provisions of any Confirmation and this Master Agreement
(including the Schedule), such Confirmation will prevail for the purpose
of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance
on the fact that this Master Agreement and all Confirmations form a
single agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in
each Confirmation to be made by the subject to the other
provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due date
for value on that date in the place of the account specified in
the relevant Confirmation or otherwise pursuant to this Agreement,
in freely transferable funds and in the manner customary for
payments in the required currency. Where settlement is by
delivery (that is, other than by payment), such delivery will be
made for receipt on the due date in the manner customary for the
relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(1) is
subject to (1) the condition precedent that no Event of Default or
Potential Event of Default with respect to the other party has
occurred and is continuing, (2) the condition precedent that no
Early Termination Date in respect of the relevant Transaction has
occurred or been effectively designated and (3) each other
applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for
receiving a payment or delivery by giving notice to the other
party at least five Local Business Days prior to the scheduled
date for the payment or delivery to which such change applies
unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise
have been payable by the other party, replaced by an obligation upon
the party by whom the larger aggregate amount would have been payable
to pay to the other party the excess of the larger aggregate amount
over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless
of whether such amounts are payable in respect of the same Transaction.
The election may be made in the Schedule or a Confirmation by
specifying that subparagraph (ii) above will not apply to the
Transactions identified as being subject to the election, together with
the starting date (in which case subparagraph (ii) above will not, or
will cease to, apply to such Transactions from such date). This
election may be made separately for different groups of Transactions
and will apply separately to each pairing of Offices through which the
parties make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made
without any deduction or withholding for or on account of any Tax
unless such deduction or withholding is required by any applicable
law, as modified by the practice of any relevant governmental
revenue authority, then in effect. If a party is so required to
deduct or withhold, then that party ("X") will:-
(1) promptly notify the other party ("Y") of such requirements;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving notice
that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure that
the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal
the full amount Y would have received had no such deduction or
withholding been required. However, X will not be required to pay
any additional amount to Y to the extent that it would not be
required to be paid but for:-
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d);
or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
(ii) Liability. If:-
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party that defaults in the performance of any
payment obligation will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest (before as well as after
judgment) on the overdue amount to the other party on demand in the same
currency as such overdue amounts, for the period from (and including)
the original due date for payment to (but excluding) the date of actual
payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If,
prior to the occurrence or effective designation of an Early Termination
Date in respect of the relevant Transaction, a party defaults in the
performance of any obligation required to be settled by delivery, it
will compensate the other party on demand if and to the extent provided
for in the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction
is entered into and, in the case of the representations in Section 3(f),
at all times until the termination of this Agreement) that:-
(a) Basic Representations.
(i) Status. It is duly organized and validly existing under the
laws of the jurisdiction of its organisation or incorporation and,
if relevant under such laws, in good standing:
(ii) Powers. It has the power to execute this Agreement and any
other documentation relating to this Agreement to which it is a
party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and
any obligations it has under any Credit Support Document to which
it is a party and has taken all necessary action to authorize such
execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to
it, any provision of its constitutional documents, any order or
judgment of any court or other agency of government applicable to
it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are
required to have been obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party
have been obtained and are in full force and effect and all
conditions of any such consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement
and any Credit Support Document to which it is a party constitute
its legal, valid and binding obligations, enforceable in
accordance with their respective terms (subject to applicable
bankruptcy, reorganisation, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in
equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event
of Default or, to its knowledge, Termination Event with respect to it
has occurred and is continuing and no such event or circumstances would
occur as a result of its entering into or performing its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support Document to which it is a party or its
ability to perform its obligations under this Agreement or such Credit
Support Document.
(d) Accuracy of Specified Information. All applicable information
that is furnished in writing by or on behalf of it to the other party
and is identified for the purpose of this Section 3(d) in the Schedule
is, as of the date of the information, true, accurate and complete in
every material aspect.
(e) Payer Tax Representation. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(e) is
accurate and true.
(f) Payee Tax Representations. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is
accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or
may have any obligations under this Agreement or under any Credit
Support Document to which it is a party:-
(a) Furnish Specified Information. It will deliver to the other party
or, in certain cases under subparagraph (iii) below, to such government
or taxing authority as the other party reasonably directs:-
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(iii) upon reasonable demand by such other party, any form or
document that may be required or reasonably requested in writing
in order to allow such other party or its Credit Support Provider
to make a payment under this Agreement or any applicable Credit
Support Document without any deduction or withholding for or on
account of any Tax or with such deduction or withholding at a
reduced rate (so long as the completion, execution or submission
of such form or document would not materially prejudice the legal
or commercial position of the party in receipt of such demand),
with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be
executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation
or, if none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to
maintain in full force and effect all consents of any governmental or
other authority that are required to be obtained by it with respect to
this Agreement or any Credit Support Document to which it is a party and
will use all reasonable efforts to obtain any that may become necessary
in the future.
(c) Comply with Laws. It will comply in all material aspects with all
applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(d) Tax Agreement. It will give notice of any failure of a
representation made by it under Section 3(f) to be accurate and true
promptly upon learning of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any
Stamp Tax levied or imposed upon it or in respect of its execution or
performance of this Agreement by a jurisdiction in which it is
incorporated, organised, managed and controlled, or considered to have
its seat, or in which a branch or office through which it is acting for
the purpose of this Agreement is located ("Stamp Tax Jurisdiction") and
will indemnify the other party against any Stamp Tax levied or imposed
upon the other party or in respect of the other party's execution or
performance of this Agreement by any such Stamp Tax Jurisdiction which
is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a
party or, if applicable, any Credit Support Provider of such party or
any Specified Entity of such party of any of the following events
constitutes an event of default (an "Event of Default") with respect to
such party:-
(i) Failure to Pay or Deliver. Failure by the party to make,
when due, any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) required to be made by it if such failure
is not remedied on or before the third Local Business Day after
notice of such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to
make any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) or to give notice of a Termination Event or any
agreement or obligation under Section 4(a)(i), 4(a)(iii) or 4(d))
to be complied with or performed by the party in accordance with
this Agreement if such failure is not remedied on or before the
thirtieth day after notice of such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of
such party to comply with or perform any agreement or
obligation to be complied with or performed by it in
accordance with any Credit Support Document if such failure
is continuing after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of
this Agreement (in either case other than in accordance with
its terms) prior to the satisfaction of all obligations of
such party under each Transaction to which such Credit
Support Document relates without the written consent of the
other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a
representation under Section 3(e) or (f) made or repeated or
deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit
Support Document proves to have been incorrect or misleading in
any material respect when made or repeated or deemed to have been
made or repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified Entity
of such party (1) defaults under a Specified Transaction and,
after giving effect to any applicable notice requirement or grace
period, there occurs a liquidation of, an acceleration of
obligations under, or an early termination of, that Specified
Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or
delivery due on the last payment, delivery or exchange date of, or
any payment on early termination of, a Specified Transaction (or
such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in part,
a Specified Transaction (or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the
Schedule as applying to the party, the occurrence or existence of
(1) a default, event of default or other similar condition or
event (however described) in respect of such party, any Credit
Support Provider of such party or any applicable Specified Entity
of such party under one or more agreements or instruments relating
to Specified Indebtedness of any of them (individually or
collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under such
agreements or instruments, before it would otherwise have been due
and payable or (2) a default by such party, such Credit Support
Provider or such Specified Entity (individually or collectively)
in making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold Amount
under such agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party:-
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable
to pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due; (3) makes a
general assignment, arrangement or composition with or for
the benefit of its creditors; (4) institutes or has
instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such
proceeding or petition instituted or presented against it,
such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief
or the making of an order for its winding-up or liquidation
or (B) is not dismissed, discharged, stayed or restrained in
each case within 30 days of the institution or presentation
thereof; (5) has a resolution passed for its winding-up,
official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or
other similar official for it or for all or substantially
all its assets; (7) has a secured party take possession of
all or substantially all its assets or has a distress,
execution, attachment, sequestration or other legal process
levied, enforced or sued on or against all or substantially
all its assets and such secured party maintains possession,
or any such process is not dismissed, discharged, stayed or
restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses
(1) to (7) (inclusive); or (9) takes any action in
furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit
Support Provider of such party consolidates or amalgamates with,
or merges with or into, or transfers all or substantially all its
assets to, another entity and, at the time of such consolidation,
amalgamation, merger or transfer:-
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit
Support Provider under this Agreement or any Credit Support
Document to which it or its predecessor was a party by
operation of law or pursuant to an agreement reasonably
satisfactory to the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to
extend (without the consent of the other party) to the
performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a
party or, if applicable, any Credit Support Provider of such party or
any Specified Entity of such party of any event specified below
constitutes an Illegality if the event is specified in (i) below, a Tax
Event if the event is specified in (ii) below or a Tax Event Upon
Merger if the event is specified in (iii) below, and, if specified to
be applicable, a Credit Event Upon Merger if the event is specified
pursuant to (iv) below or an Additional Termination Event if the event
is specified pursuant to (v) below:-
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered
into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority with
competent jurisdiction of any applicable law after such date, it
becomes unlawful (other than as a result of a breach by the party
of Section 4(b)) for such party (which will be the Affected
Party):-
(1) to perform any absolute or contingent obligation to
make a payment or delivery or to receive a payment or
delivery in respect of such Transaction or to comply with
any other material provision of this Agreement relating to
such Transaction; or
(2) to perform,, or for any Credit Support Provider of
such party to perform, any contingent or other obligation
which the party (or such Credit Support Provider) has under
any Credit Support Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on or
after the date on which a Transaction is entered into (regardless
of whether such action is taken or brought with respect to a party
to this Agreement) or (y) a Change in Tax Law, the party (which
will be the Affected Party) will, or there is a substantial
likelihood that it will, on the next succeeding Scheduled Payment
Date (1) be required to pay to the other party an additional
amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to
be deducted or withheld for or on account of a Tax (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) and no
additional amount is required to be paid in respect of such Tax
under Section 2(d)(i)(4) (other than by reason of Section
2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on
the next succeeding Scheduled Payment Date will either (1) be
required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount has been deducted or withheld for or
on account of any Indemnifiable Tax in respect of which the other
party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with, or merging
with or into, or transferring all or substantially all its assets
to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section
5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party
("X"), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets to,
another entity and such action does not constitute an event
described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker
than that of X, such Credit Support Provider or such Specified
Entity, as the case may be, immediately prior to such action (and,
in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional
Termination Event" is specified in the Schedule or any
Confirmation as applying, the occurrence of such event (and, in
such event, the Affected Party or Affected Parties shall be as
specified for such Additional Termination Event in the Schedule or
such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance
which would otherwise constitute or give rise to an Event of
Default also constitutes an Illegality, it will be treated as an
Illegality and will not constitute an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an
Event of Default with respect to a party (the "Defaulting Party") has
occurred and is then continuing, the other party (the "Non-defaulting
Party") may, by not ore than 20 days notice to the Defaulting Party
specifying the relevant Event of Default, designate a day not earlier
than the day such notice is effective as an Early Termination Date in
respect of all outstanding Transactions. If, however, "Automatic Early
Termination" is specified in the Schedule as applying to a party, then
an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party
of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6)
or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4)
or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party
will, promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected
Transaction and will also give such other information about that
Termination Event as the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an
Illegality under Section 5(b)(i)(2) or a Tax Event occurs and
there is only one Affected Party, or if a Tax Event Upon Merger
occurs and the Burdened Party is the Affected Party, the Affected
Party will, as a condition to its right to designate an Early
Termination Date under Section 6(b)(iv), use all reasonable
efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20
days after it gives notice under Section 6(b)(i) all its rights
and obligations under this Agreement in respect of the Affected
Transactions to another of its Offices or Affiliates so that such
Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will
give notice to the other party to that effect within such 20 day
period, whereupon the other party may effect such a transfer
within 30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the
other party, which consent will not be withheld if such other
party's policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section
5(b)(i)(1) or a Tax Event occurs and there are two Affected
Parties, each party will use all reasonable efforts to reach
agreement within 30 days after notice thereof is given under
Section 6(b)(i) on action to avoid that Termination Event.
(iv) Right to Terminate. If:-
(1) a transfer under Section 6(b)(ii) or an agreement
under Section 6(b)(iii), as the case may be, has not been
effected with respect to all Affected Transactions within 30
days after an Affected Party gives notice under Section
6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event
Upon Merger or an Additional Termination Event occurs, or a Tax
Event Upon Merger occurs and the Burdened Party is not the
Affected Party,
either party in the case of an Illegality, the Burdened Party in
the case of a Tax Event Upon Merger, any Affected Party in the
case of a Tax Event or an Additional Termination Event if there is
more than one Affected Party, or the party which is not the
Affected Party in the case of a Credit Event Upon Merger or an
Additional Termination Event if there is only one Affected Party
may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is effective
as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given
under Section 6(a) or (b), the Early Termination Date will occur
on the date so designated, whether or not the relevant Event of
Default or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions
of this Agreement. The amount, if any, payable in respect of an
Early Termination Date shall be determined pursuant to Section
6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable
following the occurrence of an Early Termination Date, each party
will make the calculations on its part, if any, contemplated by
Section 6(e) and will provide to the other party a statement (1)
showing, in reasonable detail, such calculations (including all
relevant quotations and specifying any amount payable under
Section 6(e)) and (2) giving details of the relevant account to
which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining
such quotation will be conclusive evidence of the existence and
accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect
of any Early Termination Date under Section 6(e) will be payable
on the day that notice of the amount payable is effective (in the
case of an Early Termination Date which is designated or occurs as
a result of an Events of Default) and on the day which is two
Local Business Days after the day on which notice of the amount
payable is effective (in the case of an Early Termination Date
which is designated as a result of a Termination Event). Such
amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after
judgment) in the Termination Currency, from (and including) the
relevant Early Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest will be
calculated on the basis of daily compounding and the actual number
of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date
occurs, the following provisions shall apply based on the parties'
election in the Schedule of a payment measure, either "Market
Quotation" or "Loss", and a payment method, either the "First Method"
or the "Second Method". If the parties fail to designate a payment
measure or payment method in the Schedule, it will be deemed that
"Market Quotation" or the "Second Method", as the case may be, shall
apply. The amount, if any, payable in respect of an Early Termination
Date and determined pursuant to this Section will be subject to any
Set-off.
(i) Events of Default. If the Early Termination Date results
from an Event of Default:-
(1) First Method and Market Quotation. If the First
Method and Market Quotation apply, the Defaulting Party will
pay to the Non-defaulting Party the excess, if a positive
number, of (A) the sum of the Settlement Amount (determined
by the Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party over (B)
the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss
apply, the Defaulting Party will pay to the Non-defaulting
Party, if a positive number, the Non-defaulting Party's Loss
in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second
Method and Market Quotation apply, an amount will be payable
equal to (A) the sum of the Settlement Amount (determined by
the Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less (B)
the Termination Currency Equivalent of the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive
number, the Defaulting Party will pay it to the Non-
defaulting Party; if it is a negative number, the Non-
defaulting Party will pay the absolute value of that amount
to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss
apply, an amount will be payable equal to the Non-defaulting
Party's Loss in respect of this Agreement. If that amount
is a positive number, the Defaulting Party will pay it to
the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results
from a Termination Event:-
(1) One Affected Party. If there is one Affected Party,
the amount payable will be determined in accordance with
Section 6(e)(i)(3), if Market Quotation applies, or Section
6(e)(i)(4), if Loss applies, except that, in either case,
references to the Defaulting Party and to the Non-defaulting
Party will be deemed to be references to the Affected Party
and the party which is not the Affected Party, respectively,
and, if Loss applies and fewer than all the Transactions are
being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) Two Affected Parties. If there are two Affected
Parties:-
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be payable
equal to (I) the sum of (a) one-half of the difference
between the Settlement Amount of the party with the
higher Settlement Amount ("X") and the Settlement
Amount of the party with the lower Settlement Amount
("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid Amounts
owing to Y; and
(B) if Loss applies, each party will determine its
Loss in respect of this Agreement (or, if fewer than
all the Transactions are being terminated, in respect
of all Terminated Transactions) and an amount will be
payable equal to one-half of the difference between
the Loss of the party with the higher Loss ("X") and
the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of
that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are
appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement
(and retained by such other party) during the period from the
relevant Early Termination Date to the date for payment
determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation
applies an amount recoverable under this Section 6(e) is a
reasonable pre-estimate of loss and not a penalty. Such amount
is payable for the loss of bargain and the loss of protection
against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest
or obligation in or under this Agreement may be transferred (whether
by way of security or otherwise) by either party without the prior
written consent of the other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or
transfer of all or substantially all its assets to, another
entity (but without prejudice to any other right or remedy under
this Agreement); and
(b) a party may make such a transfer of all or any part of its
interest in any amount payable to it from a Defaulting Party
under Section 6(e).
Any purported transfer that is not in compliance with this Section
will be void.
(a) Payment in the Contractual Currency. Each payment under
this Agreement will be made in the relevant currency specified in
this Agreement for that payment (the "Contractual Currency"). To the
extent permitted by applicable law, any obligation to make payments
under this Agreement in the Contractual Currency will not be
discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the
actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so
tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this
Agreement. If for any reason the amount in the Contractual Currency
so received falls sort of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the
payment will, to the extent permitted by applicable law, immediately
pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall. If for any reason the
amount in the Contractual Currency so received exceeds the amount in
the Contractual Currency payable in respect of this Agreement, the
party receiving the payment will refund promptly the amount of such
excess.
(b) Judgments. To the extent permitted by applicable law, if
any judgment or order expressed in a currency other than the
Contractual Currency is rendered (i) for the payment of any amount
owing in respect of this Agreement, (ii) for the payment of any
amount relating to any early termination in respect of this Agreement
or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party
seeking recovery, after recovery in full of the aggregate amount to
which such party is entitled pursuant to the judgment or order, will
be entitled to receive immediately from the other party the amount of
any shortfall of the Contractual Currency received by such party as a
consequence of sums paid in such other currency and will refund
promptly to the other party any excess of the Contractual Currency
received by such party as a consequence of sums paid in such other
currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual
Currency is converted into the currency of the judgment or order for
the purposes of such judgment or order and the rate of exchange at
which such party is able, acting in a reasonable manner and in good
faith in converting the currency received into the Contractual
Currency, to purchase the Contractual Currency with the amount of the
currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the
purchase of or conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable
law, these indemnities constitute separate and independent
obligations from the other obligations in this Agreement, will be
enforceable as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any
payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it
will be sufficient for a party to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to its
subject matter and supersedes all oral communication and prior
writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect
of this Agreement will be effective unless in writing (including a
writing evidenced by a facsimile transmission) and executed by each
of the parties or confirmed by an exchange of telexes or electronic
messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections
2(a)(iii) and 6(c)(ii), the obligations of the parties under this
Agreement will survive the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement,
the rights, powers, remedies and privileges provided in this
Agreement are cumulative and not exclusive of any rights, powers,
remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver
in respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be
deemed an original.
(ii) The parties intend that they are legally bound by the terms
of each Transaction from the moment they agree to those terms
(whether orally or otherwise). A Confirmation shall be entered
into as soon as practicable and may be executed and delivered in
counterparts (including by facsimile transmission) or be created
by an exchange of telexes or by an exchange of electronic messages
on an electronic messaging system, which in each case will be
sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through
another effective means that any such counterpart, telex or
electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any
right, power or privilege in respect of this Agreement will not be
presumed to operate as a waiver, and a single or partial exercise of
any right, power or privilege will not be presumed to preclude any
subsequent or further exercise, of that right, power or privilege or
the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for
convenience of reference only and are not to affect the construction
of or to be taken into consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying,
each party that enters into a Transaction through an Office other
than its head or home office represents to the other party that,
notwithstanding the place of booking office or jurisdiction of
incorporation or organisation of such party, the obligations of such
party are the same as if it had entered into the Transaction through
its head or home office. This representation will be deemed to be
repeated by such party on each date on which a Transaction is entered
into.
(b) Neither party may change the Office through which it makes
and receives payments or deliveries for the purpose of a Transaction
without the prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the
Schedule, such Multibranch Party may make and receive payments or
deliveries under any Transaction through any Office listed in the
Schedule, and the Office through which it makes and receives payments
or deliveries with respect to a Transaction will be specified in the
relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the
other party for and against all reasonable out-of-pocket expenses,
including legal fees and Stamp Tax, incurred by such other party by
reason of the enforcement and protection of its rights under this
Agreement or any Credit Support Document to which the Defaulting
Party is a party or by reason of the early termination of any
Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect
of this Agreement may be given in any manner set forth below (except
that a notice or other communication under Section 5 or 6 may not be
given by facsimile transmission or electronic messaging system) to
the address or number or in accordance with the electronic messaging
system details provided (see the Schedule) and will be deemed
effective as indicated:-
(i) if in writing an delivered in person or by courier, on the
date it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that
transmission is received by a responsible employee of the
recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a
transmission report generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if
overseas) or the equivalent (return receipt requested), on the
date that mail is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is
delivered (or attempted) or received, as applicable, after the close of
business on a Local Business Day, in which case that communication
shall be deemed given and effective on the first following day that is
a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other
change the address, telex or facsimile number or electronic messaging
system details at which notices or other communications are to be given
to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed
in accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings
relating to this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York
and the United States District Court located in the Borough of
Manhattan in New York City, if this Agreement is expressed to be
governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the
laying of venue of any Proceedings brought in any such court,
waives any claim that such Proceedings have been brought in an
inconvenient forum and further waives the right to object, with
respect to such Proceedings, that such court does not have any
jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing
Proceedings in any other jurisdiction (outside, if this Agreement is
expressed to be governed by English law, the Contracting States, as
defined in Section 1(3) of the Civil Jurisdiction and Judgments Act of
1982 or any modification, extension or re-enactment thereof for the
time being in force) nor will the bringing of Proceedings in any one or
more jurisdictions preclude the bringing of Proceedings in any other
jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process
Agent (if any) specified opposite its name in the Schedule to receive,
for it and on its behalf, service of process in any Proceedings. If
for any reason any party's Process Agent is unable to act as such, such
party will promptly notify the other party and within 30 days appoint a
substitute process agent acceptable to the other party. The parties
irrevocably consent to service of process given in the manner provided
for notices in Section 12. Nothing in this Agreement will affect the
right of either party to serve process in any other manner permitted by
law.
(d) Waiver of Immunities. Each party irrevocably waives, to the
fullest extent permitted by applicable law, with respect to itself and
its revenues and assets (irrespective of their use or intended use),
all immunity on the grounds of sovereignty or other similar grounds
from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of
property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it
or its revenues or assets might otherwise be entitled in any
Proceedings in the courts of any jurisdiction and irrevocably agrees,
to the extent permitted by applicable law, that it will not claim any
such immunity in any Proceedings.
14. Definitions
As used in this Agreement:-
"Additional Termination Event" has the meaning specified in Section
5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and
(b) with respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person,
any entity controlled, directly or indirectly, by the person, any
entity that controls, directly or indirectly, the person or any entity
directly or indirectly under common control with the person. For this
purpose, "control" of any entity or person means ownership of a
majority of the voting power of the entity or person.
"Applicable Rate" means:-
(a) in respect of obligations payable or deliverable (or which would
have been but for Section 2(a)(iii) by a Defaulting Party, the Default
Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with
Section 6(d)(ii) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or
which would have been but for Section 2(a)(iii) by a Non-defaulting
Party, the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or
after the date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation,
exemption, notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is
specified as such in this Agreement.
"Credit Support Document" means any agreement or instrument that is
specified as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof
or evidence of any actual cost) to the relevant payee (as certified by
it) if it were to fund or of funding the relevant amount plus 1% per
annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be
imposed in respect of a payment under this Agreement but for a present
or former connection between the jurisdiction of the government or
taxation authority imposing such Tax and the recipient of such payment
or a person related to such recipient (including, without limitation, a
connection arising from such recipient or related person being or having
been a citizen or resident of such jurisdiction, or being or having been
organised, present or engaged in a trade or business in such
jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection
arising solely from such recipient or related person having executed,
delivered, performed its obligations or received a payment under, or
enforced, this Agreement or a Credit Support Document.
"law" includes any treaty, law, rule or regulation (as modified, in the
case of tax matters, by the practice of any relevant governmental
revenue authority) and "lawful" and "unlawful" will be construed
accordingly.
"Local Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any
obligation under Section 2(a)(i), in the place(s) specified in the
relevant Confirmation or, if not so specified, as otherwise agreed by
the parties in writing or determined pursuant to provisions contained or
incorporated by reference, in this Agreement, (b) in relation to any
other payment, in the place where the relevant account is located and,
if different, in the principal financial centre, if any, of the currency
of such payment, (c) in relation to any notice or other communication,
including notice contemplated under Section 5(a)(i), in the city
specified in the address for notice provided by the recipient and, in
the case of a notice contemplated by Section 2(b), in the place where
the relevant new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to
such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith
to be its total losses and costs (or gain, in which case expressed as a
negative number) in connection with this Agreement or that Terminated
Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of
such party but without duplication, loss or cost incurred as a result of
its terminating, liquidating, obtaining or reestablishing any hedge or
related trading position (or any gain resulting from any of them). Loss
includes losses and costs (or gains) in respect of any payment or
delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early
Termination Date and not made, except, so as to avoid duplication, if
Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not
include a party's legal fees and out-of-pocket expenses referred to
under Section 11. A party will determine its Loss as of the relevant
Early Termination Date, or, if that is not reasonably practicable, as of
the earliest date thereafter as is reasonably practicable. A party may
(but need not) determine its Loss by reference to quotations of relevant
rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount determined
on the basis of quotations from Reference Market-makers. Each quotation
will be for an amount, if any, that would be paid to such party
(expressed as a negative number) or by such party (expressed as a
positive number) in consideration of an agreement between such party
(taking into account any existing Credit Support Document with respect
to the obligations of such party) and the quoting Reference Market-maker
to enter into a transaction (the "Replacement Transaction") that would
have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute
or contingent and assuming the satisfaction of each applicable condition
precedent) by the parties under Section 2(a)(i) in respect of such
Terminated Transaction or group of Terminated Transactions that would,
but for the occurrence of the relevant Early Termination Date, have been
required after that date. For this purpose, Unpaid Amounts in respect
of the Terminated Transaction or group of Terminated Transactions are to
be excluded but, without limitation, any payment or delivery that would,
but for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement
Transaction would be subject to such documentation as such party and the
Reference Market-maker may, in good faith, agree. The party making the
determination (or its agent) will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as of the
same day and time (without regard to different time zones) on or as soon
as reasonably practicable after the relevant Early Termination Date.
The day and time as of which those quotations are to be obtained will be
selected in good faith by the party obligated to make a determination
under Section 6(e), and, if each party is so obliged, after consultation
with the other. If more than three quotations are provided, the Market
Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly
three such quotations are provided, the Market Quotation will be the
quotation remaining after disregarding the highest and lowest
quotations. For this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, it will be
deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without
proof or evidence of any actual cost) to the Non-defaulting party (as
certified by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's
head or home office.
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of
Default.
"Reference Market-makers" means four leading dealers in the relevant
market selected by the party determining a Market Quotation in good
faith (a) from among dealers of the highest credit standing which
satisfy all the criteria that such party applies generally at the time
in deciding whether to offer or to make an extension of credit and (b)
to the extent practicable, from among such dealers having an office in
the same city.
"Relevant Jurisdiction" means, with respect to a party, the
jurisdictions (a) in which the party is incorporated, organised, managed
and controlled or considered to have its seat, (b) where an Office
through which the party is acting for purposes of this Agreement is
located, (c) in which the party executes this Agreement and (d) in
relation to any payment, from or through which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is
to be made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the
payer of an amount under Section 6 is entitled or subject (whether
arising under this Agreement, another contract, applicable law or
otherwise) that is exercised by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early
Termination Date, the sum of:-
(a) the Termination Currency Equivalent of the Market Quotations
(whether positive or negative) for each Terminated Transaction or group
of Terminated Transactions for which a Market Quotation is determined;
and
(b) such party's Loss (whether positive or negative and without
reference to any Unpaid Amounts) for each Terminated Transaction or
group of Terminated Transactions for which a Market Quotation cannot be
determined or would not (in the reasonable belief of the party making
the determination) produce a commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or
surety or otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule , (a) any
transaction (including an agreement with respect thereto) now existing
or hereafter entered into between one party to this Agreement (or any
Credit Support Provider of such party or any applicable Specified Entity
of such party) and the other party to this Agreement (or any Credit
Support Provider of such other party or any applicable Specified Entity
of such other party) which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest
rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-
currency rate swap transaction, currency option or nay other similar
transaction (including any option with respect to any of these
transactions), (b) any combination of these transactions and (c) any
other transaction identified as a Specified Transaction in this
Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and
additions thereto) that is imposed by any government or other taxing
authority in respect of any payment under this Agreement other than a
stamp, registration, documentation or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination
Date (a) if resulting from a Termination Event, all Affected
Transactions and (b) if resulting from an Event of Default, all
Transactions (in either case) in effect immediately before the
effectiveness of the notice designating that Early Termination Date (or,
if "Automatic Early Termination" applies, immediately before that Early
Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount
denominated in the Termination Currency, such Termination Currency
amount and, in respect of any amount denominated in a currency other
than the Termination Currency (the "Other Currency"), the amount in the
Termination Currency determined by the party making the relevant
determination as being required to purchase such amount of such Other
Currency as at the relevant Early Termination Date, or, if the relevant
Market Quotation or Loss (as the case may be), is determined as of a
later date, that later date, with the Termination Currency at the rate
equal to the spot exchange rate of the foreign exchange agent (selected
as provided below) for the purchase of such Other Currency with the
Termination Currency at or about 11:00 a.m. (in the city in which such
foreign exchange agent is located) on such date as would be customary
for the determination of such a rate for the purchase of such Other
Currency for value on the relevant Early Termination Date or that later
date. The foreign exchange agent will, if only one party is obliged to
make a determination under Section 6(e), be selected in good faith by
that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or
an Additional Termination Event.
"Termination Rate means a rate per annum equal to the arithmetic mean of
the cost (without proof or evidence of any actual cost) to each party
(as certified by such party) if it were to fund or of funding such
amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i)
on or prior to such Early Termination Date and which remain unpaid as at
such Early Termination Date and (b) in respect of each Terminated
Transaction, for each obligation under Section 2(a)(i) which was (or
would have been but for Section 2(a)(iii) required to be settled by
delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an
amount equal to the fair market value of that which was (or would have
been) required to be delivered as of the originally scheduled date for
delivery, in each case together with (to the extent permitted under
applicable law) interest, in the currency of such amounts, from (and
including) the date such amounts or obligations were or would have been
required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will
be calculated on the basis of daily compounding and the actual number of
days elapsed. The fair market value of any obligation referred to in
clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so
obliged, it shall be the average of the Termination Currency Equivalents
of the fair market values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the
respective dates specified below with effect from the date specified on
the first page of this document.
Deutsche Bank AG, MBNA Master Credit Card Trust II
New York Branch The Bank of New York
(Name of Party) (Name of
Party)
solely in its capacity as trustee
and not in its individual capacity.
By /s/ Dale F. Oberst By /s/ Joseph G. Ernst
Name: Dale F. Oberst Name: Joseph G. Ernst
Title: Assistant Vice President Title: Assistant
Vice President
By. /s/ John S. McGill_________
Name: John S. McGill
Title: Vice President
EXECUTION COPY
SCHEDULE
to the
Master Agreement
dated as of June 18, 1997
between
DEUTSCHE BANK AG, NEW YORK BRANCH ("Party A"),
and
THE BANK OF NEW YORK (the "Trustee")
acting as trustee for
The MBNA MASTER CREDIT CARD TRUST II ("Party B"), a trust formed
pursuant to a pooling and servicing agreement dated as of August 4, 1994
(as amended and supplemented from time to time, the "Pooling and
Servicing Agreement"), as supplemented by the Series 1997-F Supplement
dated as of June 18, 1997, each between MBNA America Bank, National
Association, as Seller and Servicer, and the Trustee (the Pooling and
Servicing Agreement, as so supplemented, the "Trust Agreement").
Part 1. Termination Provisions
In this Agreement:
(a) "Specified Entity" shall not apply for purposes of this Agreement.
(b) "Specified Transaction" will have the meaning specified in Section
14 of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii), the
"Misrepresentation" provisions of Section 5(a)(iv), the "Default
under Specified Transaction" provisions of Section 5(a)(v), the
"Cross Default" provisions of Section 5(a)(vi), the "Merger
Without Assumption" provisions of Section 5(a)(viii), the "Tax
Event" provisions of Section 5(b)(ii), "Tax Event Upon Merger"
provisions of Section 5(b)(iii), and the "Credit Event Upon
Merger" provisions of Section 5(b)(iv), and, to the extent of any
Payment Carryforward Event set forth in the applicable
Confirmation, the "Failure to Pay or Deliver" provisions of
Section 5(a)(i) will not apply to Party A and will not apply to
Party B. Solely with respect to payments required to be made by
Party A relating to the Rapid Accumulation Period, the word
"third" in the final line of Section 5(a)(i) shall be replaced
with "12:00 noon of the first".
(d) The "Automatic Early Termination" provisions of Section 6(a) will
not apply to Party A and will not apply to Party B.
(e) Payments on Early Termination. For the purpose of Section 6(e) of
this Agreement, Market Quotation and the Second Method will apply;
provided, however, that in the case of an Event of Default with
respect to Party A as the Defaulting Party or a Termination Event
with respect to Party A as the Affected Party, the related
Settlement Amount, if negative, will be deemed to be zero if the
Market Quotation cannot be determined.
(f) Market Quotation. Notwithstanding anything to the contrary in the
definition of Market Quotation in Section 14, in the case of an
Event of Default with respect to Party A as the Defaulting Party
or a Termination Event with respect to Party A as the Affected
Party, the Market Quotation, if negative, will be deemed to be the
negative quotation, if any, with the highest absolute value
received from any Reference Market-maker, even if only one
quotation is provided, with which Party B is able, using its best
efforts, to enter into a Replacement Transaction even if Party B
reasonably believes such Market Quotation would not produce a
commercially reasonable result.
(g) "Reference Market-maker" will not have the meaning specified in
Section 14, but will instead mean the following:
"Reference Market-maker" means five leading dealers in the
relevant market selected by the party determining the Market
Quotation in good faith (a) from among dealers which are
rated not lower than investment grade by S&P and Moody's
which satisfy the criteria that such party applies generally
at that time in deciding whether to offer or make an
extension of credit and (b) to the extent practicable, from
among dealers having an office in the same city.
(h) "Termination Currency" means United States Dollars ("USD").
Part 2. Tax Representations.
(a) Payer Tax Representations. For the purpose of Section 3(e) of
this Agreement, Party A and Party B will each make the following
representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or
on account of any Tax from any payment (other than interest under
Sections 2(e), 6(d)(ii) and 6(e) of this Agreement) to be made by
it to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any
representation made by the other party pursuant to Section 3(f) of
this Agreement, (ii) the satisfaction of the agreement contained
in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy
and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) and 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement, provided that it
shall not be a breach of this representation where reliance is
placed on clause (ii) and the other party does not deliver a form
of document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A represents that either (i) it is wholly exempt
from deduction or withholding of Tax imposed by the United States
or any political subdivision or taxing authority thereof or
therein with respect to all amounts to be made in connection with
this Agreement because of an applicable tax treaty to which the
United States is a party, or (ii) each payment received or to be
received by it in connection with this Agreement will be
effectively connected with its conduct of a trade or business in
the United States.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 3(d), 4(a)(i) and (ii) of this
Agreement, each party agrees to deliver the following documents,
as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver document-
Form/Document/Certificate-
Date by which
to be delivered-Covered by Section 3(d) Representation
Party B-Any form or document that may be reasonably requested, and that
Party B is eligible to provide, in order to allow the requesting party
to make a payment without (or with reduced) withholding Tax.-Promptly
upon reasonable demand by the other party.-Yes
Party A-Two accurate and completed signed copies of Internal Revenue
Service Form 4224, and all other related forms (including any
certificate with respect thereto) as Party B may reasonably request.-
Within 30 days of the execution and delivery of this Agreement, but in
no event later than the date of the first payment made by Party B to
Party A in connection with the Agreement and additionally, prior to the
date on which the first payment is to be made by Party B, with respect
to each succeeding calendar year; and within the earlier of (i) 30 days
of a change in circumstances that renders the forms previously delivered
to Party B inaccurate or incomplete in any material respect or (ii) the
first Party B Floating Amount Payment Date which falls after a change in
circumstances that renders the forms previously delivered to Party B
inaccurate or incomplete in any material respect.-Yes
(b) Other documents to be delivered are:
Party required to deliver document-
Form/Document/Certificate-
Date by which to be delivered-Covered by Section 3(d)
Party A-Opinions of counsel for Party A substantially in the form of
Exhibit A and Exhibit B to this Schedule-Upon execution of this
Agreement-Yes
Party A-An incumbency certificate with respect to the signatories of
this Agreement-Upon execution of this Agreement-Yes
Party B-An opinion of counsel for Party B substantially in the form of
Exhibit C to this Schedule-Upon execution of this Agreement-Yes
Party B-An incumbency certificate with respect to the signatory of this
Agreement-Upon execution of this Agreement-Yes
Party B-Documentary evidence of authority of The Bank of New York, as
Trustee, to act on behalf of Party B-Upon execution of this Agree-ment-
Yes
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Address: Deutsche Bank AG,
New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Greg Williams
Telephone No.: (212) 469-7645
Facsimile No.: (212) 469-7875
For all purposes.
Address for notices or communications to Party B:
Address: MBNA Master Credit Card Trust II
c/o The Bank of New York, as Trustee
101 Barclay Street
New York, NY 10286
Attention: Joseph G. Ernst
Telephone No.: (212) 815-5732
Facsimile No.: (212) 815-5999
with a copy to:
MBNA Master Credit Card Trust II
MBNA America Bank, National Association,
as Servicer
Securitizations
Wilmington, DE 19884-0760
Attention: Michelle Dumont
Telephone No.: (302) 457-0146
Facsimile No.: (302) 457-0056
For all purposes.
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this
Agreement.
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is the Trustee, unless
otherwise specified in a Confirmation in relation to the relevant
Transaction.
(f) Credit Support Document. Details of any Credit Support Document:
In the case of Party A: Not applicable.
In the case of Party B: Not applicable.
(g) Credit Support Provider.
In relation to Party A: Not applicable
In relation to Party B: Not applicable
(h) Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York (without
reference to choice of law doctrine but without prejudice to the
provisions of Section 5-1401 of the General Obligations Law of the
State of New York).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to any of the Transactions, except that it
will not apply to payments by each Party to the other if Party B
so notifies Party A ten (10) days in advance of the date such
Payments are due.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement, except that with respect to Party B there shall be
deemed to be no Affiliates.
Part 5. Other Provisions.
(a) Confirmation. Each Confirmation supplements, forms part of, and
will be read and construed as one with, this Agreement. A form of
Confirmation is set forth as Exhibit D hereto.
(b) Waiver of Trial By Jury. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by
jury in respect of any suit, action or proceeding relating to this
Agreement. Each party (i) certifies that no representative, agent
or attorney of the other party has represented, expressly or
otherwise, that such other party would not, in the event of such a
suit, action or proceeding, seek to enforce the foregoing waiver
and (ii) acknowledges that it and the other party have been
induced to enter this Agreement by, among other things, the mutual
waivers and certifications in this Section.
(c) Non-Petition. Party A hereby agrees that it will not bring any
action (whether in bankruptcy or otherwise) against Party B in any
court prior to the date which is one year and one day after all
Investor Certificates (as such term is defined in the Pooling and
Servicing Agreement), including all collateral interests and class
C interests, of Party B have been paid in full.
(d) Assignment. In the event the long-term debt obligations of Party
A are lowered to below the category of BBB- by Standard & Poor's
Corporation ("S&P") or Baa3 by Moody's Investor Services
("Moody's") or such rating agencies' then equivalent ratings, or
such ratings are withdrawn by either S&P or Moody's, Party A shall
assign and delegate its rights and obligations under any
Transaction to a replacement counterparty, subject to the prior
written direction of Party B.
(e) Provision for Payments from Party B. Notwithstanding anything
contained in this Agreement to the contrary, any amount required
to be paid by Party B pursuant to this Agreement will be payable
only to the extent provided in subsections 4.09(a)(ii) and 4.11(l)
of the Trust Agreement (as each such term is defined in the
Confirmation). The Trustee shall not be required to expend or
risk its own funds or otherwise incur any liability in connection
with this Agreement, and Party A shall not bring any claim
whatsoever against the Trustee in its individual capacity or
against the assets of the Trustee (other than the assets of the
Trust).
(f) Definition of Trustee. For purposes of this Agreement the term
"Trustee" shall mean The Bank of New York as trustee for Party B.
(g) Relationship Between Parties. Each party will be deemed to
represent to the other party on the date on which it enters into
this Agreement that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the
contrary):
(i) Non-Reliance. It is acting for its own account, and it has
made its own independent decisions to enter into this Agreement
and as to whether this Agreement is appropriate or proper for it
based upon its own judgment and upon advice from such advisers as
it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into this Agreement; it being understood
that information and explanations related to the terms and
conditions of this Agreement shall not be considered investment
advice or a recommendation to enter into this Agreement. No
communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the expected
results of this Agreement.
(ii) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of this Agreement. It is also capable
of assuming, and assumes, the risks of this Agreement.
(iii) Status of Parties. The other party is not acting as a
fiduciary for or as adviser to it in respect of this Agreement.
(h) Additional Amounts Payable to Party A. In the event that the
Rapid Amortization Period commences as a result of a Trust Pay Out
Event, on each Floating Rate Payer Payment Date during the Rapid
Amortization Period, Party B shall pay to Party A, an amount equal
to the sum of the monthly Settlement Amounts for each of the
related Floating Rate Payer Payment Dates during the Rapid
Amortization Period plus accrued interest thereon, compounded
monthly, at a rate per annum equal to the Floating Rate Option
plus the Floating Rate Spread for each of the related Floating
Rate Payer Payment Dates. For purposes of determining the
Settlement Amount for each Floating Rate Payer Payment Date during
the Rapid Amortization Period, the Terminated Transaction will be
the amount by which the Floating Rate Notional Amount has been
reduced since the preceding Floating Rate Payer Payment Date.
The parties executing this Schedule have executed the Master
Agreement and have agreed as to the contents of this Schedule.
DEUTSCHE BANK AG,
NEW YORK BRANCH
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
MBNA CREDIT CARD MASTER TRUST II
THE BANK OF NEW YORK, solely in its
capacity as
trustee and not in its individual capacity
By: ____________________________________
Name: Joseph G. Ernst
Title: Assistant Vice President
EXHIBIT A to Schedule
[Form of Opinion of Counsel for
Party A.]
[date]
MBNA Credit Card Master Trust II
c/o The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Joseph G. Ernst
Gentlemen:
I have acted as counsel to Deutsche Bank AG, New York Branch
("Party A"), and am familiar with matters pertaining to the execution
and delivery of the Master Agreement (the "Master Agreement") dated as
of June 18, 1997 between Party A and The Bank of New York as Trustee for
the MBNA Master Credit Card Trust II ("Party B"). The Master Agreement
is to be supplemented by confirmations of swap transactions to be
entered into by Party A and Party B from time to time (each a
"Confirmation") and the Master Agreement, together with all such
Confirmation, shall constitute one agreement.
In connection with this opinion, I have examined or had examined
on my behalf an executed copy of the Master Agreement and the form of
Confirmation attached thereto, and certificates of public officials and
officers of Party A and such other documents as I have deemed necessary
or appropriate for the purposes of this opinion. In such opinion, I
have assumed the genuineness of all the signatures, the authenticity of
all documents submitted to me as originals and the conformity to
authentic original documents of all documents submitted to me as
certified, conformed or photostatic copies. I have also assumed that
each Confirmation will be in substantially the form of Exhibit D to the
Master Agreement.
Based upon the foregoing, I am of the opinion that:
1. Party A is a branch duly licensed under the laws of the
State of New York of Deutsche Bank AG, a corporation duly organized and
validly existing under the laws of the Federal Republic of Germany.
2. The execution, delivery and performance of the Master
Agreement and each Confirmation are within the corporate power of Party
A, have been duly authorized by all necessary corporate action and do
not, or, with respect to each Confirmation, will not, conflict with any
provision of its articles of incorporation or by-laws.
3. The Master Agreement has been duly executed and delivered by
Party A and constitutes, and with respect to each Confirmation, upon due
execution and delivery by Party A, will constitute, a legally valid and
binding obligation of Party A, enforceable against it in accordance with
its terms
(subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
4. To the best of my knowledge no consent, authorization,
license or approval of or registration or declaration with, any United
States of America federal or New York governmental authority is required
in connection with the execution, delivery and performance of the Master
Agreement and each Confirmation by Party A.
I am admitted to the bar of the State of New York. I express no
opinion as to the laws of any jurisdiction other than (a) the laws of
the State of New York, (b) United States federal laws and (c) the laws
of the Federal Republic of Germany solely to the extent set forth in
paragraphs (1) and (3) above and solely in reliance on consultations
with, opinions of and information from the Central Legal Department of
Deutsche Bank.
This opinion is furnished to you only in connection with the
transactions contemplated and is not to be used, circulated, quoted or
otherwise referred to for any other purpose, provided that it may also
be delivered to Deutsche Bank which may rely upon this opinion to the
same extent as if such opinion were addressed to it. Except as
expressly provided in this paragraph, no other person may rely on this
opinion without my prior written consent.
EXHIBIT B to Schedule
[Form of Opinion of Foreign Counsel for Party A]
Ladies and Gentlemen:
In our capacities as Counsel of Deutsche Bank AG, we have been
asked to render the opinions expressed below with respect to the Master
Agreement (the "Master Agreement") dated as of June 18, 1997 between
Deutsche Bank AG, New York Branch (the "Branch") and The Bank of New
York as trustee for the MBNA Master Credit Card Trust II ("Party B"), as
supplemented by the Schedule and Confirmation thereto, each dated June
18, 1997 between the Branch and Party B (the Master Agreement as so
supplemented is referred to herein as the "Agreement"). In connection
therewith, we have examined the laws of the Federal Republic of Germany
and such other documents and instruments as we have deemed necessary in
order to render the opinions hereinafter set forth. We are qualified to
practice law in the Federal Republic of Germany and we do not purport to
be experts on, or to express any opinion herein concerning, any law
other than the law of the Federal Republic of Germany.
Based upon and subject to the foregoing, we are of the opinion that:
(i) Deutsche Bank AG is a corporation duly organized and validly
existing under the laws of the Federal Republic of Germany. Under
such laws, Deutsche Bank AG has the corporate power and authority,
acting through the Branch, to execute and deliver and to perform
its obligations under the Agreement.
(ii) Assuming that the Agreement has been duly authorized and
issued by the Branch and constitutes a legal, valid and binding
obligation under the laws of the State of New York, the Agreement
constitutes a legal, valid and binding obligation of Deutsche Bank
AG to be performed through the Branch and, assuming the due
authorization, execution and delivery thereof by each party
thereto other than the Branch, is enforceable against Deutsche
Bank AG in accordance with its terms, except as the enforceability
thereof may be limited (a) by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally, as
the same may be applied in the event of bankruptcy, insolvency or
similar proceedings of Deutsche Bank AG, (b) by the equitable
power of any court having jurisdiction or (c) as a result of
government action within the United States of America.
(iii) There are no legal requirements under the laws of the
Federal Republic of Germany which had to be met or fulfilled as a
condition precedent to the enforceability in the Federal Republic
of Germany of the Agreement which have not been duly met or
fulfilled.
(iv) Any judgment against the Branch with respect to the
Agreement given by the courts of the United States of America in
the State of New York or by the courts of the State of New York
would be recognized and enforced in the Federal Republic of
Germany, provided that the requirements of Section 328 of the
German Code of Civil Procedure are met, in particular that:
a. the courts have subject matter jurisdiction and there
is no exclusive German jurisdiction; we confirm that as
regards the enforcement of the Agreement against German
corporations, German courts do not have exclusive
jurisdiction;
b. Deutsche Bank AG has put in a general appearance in
the proceedings or actual personal service of process was
made on Deutsche Bank AG in a proper way (or at least timely
enough to allow for the raising of defenses); we confirm
that service on the Branch at its offices is sufficient
service on Deutsche Bank AG;
c. such judgment is not contrary to an existing judgment
which is to be recognized in the Federal Republic of
Germany;
d. such judgment has not resulting from legal proceedings
begun subsequent to other legal proceedings regarding the
same subject matter, which legal proceedings are
incompatible therewith;
e. the recognition of the foreign judgment is not
obviously contrary to essential principles of the laws of
the Federal Republic of Germany, in particular rights
granted under the constitutional law of the Federal Republic
of Germany; we have no reason to believe that any judgment
enforcing an obligation of the Branch pursuant to the
Agreement (other than a judgment awarding punitive damages),
which judgment is in line with the laws of the State of New
York, would be obviously contrary either to the essential
principles of the laws of the Federal Republic of Germany or
of the rights granted under the constitutional law of the
Federal Republic of Germany; and
f. reciprocity exists.
(v) An action to enforce the obligations under the Agreement may
be brought against Deutsche Bank AG in the courts of the Federal
Republic of Germany.
Very truly yours,
EXHIBIT C to Schedule
[Form of Opinion of Counsel for Trustee]
EXHIBIT D TO SCHEDULE
Date: June 18, 1997
To: The Bank of New York acting as
Trustee for the
MBNA Master Credit Card Trust II
Telephone:
Telecopier:
From: Deutsche Bank AG, New York Branch
Subject: Swap Transaction
The purpose of this communication is to set forth the terms
and conditions of the swap transaction entered into on the Trade Date
referred to below (the "Swap Transaction"), between THE BANK OF NEW YORK
(the "Trustee") acting as trustee for the MBNA MASTER CREDIT CARD TRUST
II, but only as relates to the Series 1997-F Class A 6.60% Certificates
(the "Trust") and Deutsche Bank AG, New York Branch. ("DBNY"). This
communication constitutes a "Confirmation" as referred to in the Swap
Agreement specified below.
This Confirmation supplements, forms part of, and is subject
to, the Master Agreement dated as of June 18, 1997, between DBNY and the
Trustee (the "Master Agreement"). All provisions contained in, or
incorporated by reference to, such Master Agreement shall govern this
Confirmation except as expressly modified below.
This Confirmation and the Schedule to the Master Agreement
(the "Schedule") each incorporate the definitions and provisions
contained in (i) the 1991 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc.) (the
"Definitions") and (ii) the Series 1997-F Supplement dated as of June
18, 1997 (the "Supplement") to the Pooling and Servicing Agreement dated
as of August 4, 1994 by and between MBNA America Bank, National
Association, as Seller and Servicer, and The Bank of New York, as
Trustee (as amended, the "Pooling and Servicing Agreement", together
with the Supplement, the "Trust Agreement"), and relating to the Trust,
Series 1997-F ("Series 1997-F") and, in particular, for the purposes
hereof, the Class A 6.60% Asset Backed Certificates, Series 1997-F (the
"Class A Certificates"). In the event of any inconsistency between the
definitions in the Supplement and any of the Definitions, the Schedule
or this Confirmation, the definitions in the Supplement will govern; in
the event of any inconsistency between this Confirmation and either the
Schedule or the Definitions, this Confirmation will govern; and in the
event of any inconsistency between the Schedule and the Definitions, the
Schedule will govern.
The terms of this particular Swap Transaction to which this
Confirmation relates are as follows:
Trade Date:-June 18, 1997
Effective Date:-The Closing Date for Series 1997-F.
Termination Date:-The Scheduled Payment Date; provided, however, that in
the event that the Rapid Amortization Period commences as a result of a
Trust Pay Out Event, the Termination Date will be the earlier of (i) the
date on which the Notional Amount is zero and (ii) the Scheduled Payment
Date.
Fixed Amounts:-
Fixed Rate
Payer:-Party A.
Fixed Rate:-6.60%
Calculation
Periods:
- -For the initial Calculation Period, the period from and including the
Effective Date through the day preceding the first Distribution Date;
thereafter, each Calculation Period will be the period from and
including the previous Distribution Date through the day preceding the
current Distribution Date.
Fixed Amount
for Initial
Calculation
Period:-$6,270,000.
Fixed Rate
Notional
Amount:-For the initial Calculation Period, $600,000,000 (the initial
outstanding principal balance of the Class A Certificates), and
thereafter the outstanding principal balance of Class A Certificates as
of the Record Date which occurs during each Calculation Period.
Fixed Rate
Payer Payment
Dates:-Each Transfer Date.
Fixed Rate Day
Count Fraction:-30/360
Floating Amounts:-
Floating Rate
Payer:
- -Party B.
Calculation
Periods:-For the initial Calculation Period, the period from and
including the Effective Date through the day preceding the first
Distribution Date; thereafter, each Calculation Period will be the
period from and including the previous Distribution Date through the day
preceding the current Distribution Date.
Floating Rate
Payer Payment
Dates:-Each Transfer Date.
Floating Rate
Option:-USD-LIBOR-BBA.
Reset Dates:-Means, with respect to the initial Calculation Period, the
Effective Date, for the period from and including the Effective Date
through and including July 14, 1997, and July 15, 1997, for the period
from and including July 15, 1997 through and including the day preceding
the first Distribution Date, and with respect to each Calculation Period
thereafter, the first day of such Calculation Period.
Calculation Dates:-Means, with respect to each Calculation Period, the
first day of such Calculation Period.
Designated
Maturity:-One month.
Floating Rate
Spread:-%.
Floating Rate
Notional
Amount:-For the initial Calculation
Period, $600,000,000 (the initial outstanding principal balance of the
Class A Certificates), and thereafter the outstanding principal balance
of the Class A Certificates as of the Record Date which occurs during
each Calculation Period.
Floating Rate
Day Count Frac-
tion:-Actual/360.
Compounding:-Not Applicable.
Calculation Agent: -Trustee.
Business Days: -New York and Newark, Delaware.
Credit Support Document: -Not Applicable.
Other Provisions:
- -If at any time during the Term of the Swap Transaction Party A's rating
is reduced below AA- by S&P or below Aa3 by Moody's, or is withdrawn by
either S&P or Moody's, the Trustee at the written instruction of the
Servicer, on behalf of the Trust shall establish and maintain with a
Qualified Institution, in the name of the Trust for the benefit of the
Class A Certificateholders, the interest reserve account as a segregated
trust account held for the benefit of Class A Certificateholders (the
"Interest Reserve Account"). Within thirty days of such reduction or
withdrawal, Party A shall fund the Interest Reserve Account in an amount
equal to one-twelfth of the product of (a) the Fixed Rate, and (b) the
outstanding principal balance of the Class A Certificates on the Record
Date preceding such reduction or withdrawal for reinvestment in
accordance with the Supplement; provided, however, that the failure of
Party A to adequately fund the Interest Reserve Account within thirty
days of such reduction or withdrawal shall not constitute an Event of
Default pursuant to the provisions of subsection 5(a) or a Termination
Event pursuant to the provisions of subsection 5(b). Party A shall
treat the amount on deposit in the Interest Reserve Account as its money
for tax purposes. After establishment of the Interest Reserve Account,
in the event there shall occur an Early Termination Date as a result of
an Event of Default with respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the Affected Party, the
funds then contained in the Interest Reserve Account will be deposited
into the Finance Charge Account to the extent provided in the
Supplement. Upon termination of the Interest Reserve Account as
provided in the Supplement after payment of all amounts owing to the
1997-F Certificateholders that are payable from such account, the
Trustee will release all amounts on deposit therein to Party A.
A "Payment Carryforward Event" shall be deemed to occur for any Floating
Rate Payer Payment Date to the extent that (i) the sum of the Payment
Carryforward Amount for such date and the amount of any past due Payment
Carryforward Amount exceeds zero and (ii) amounts are not available
under subsection 4.11(l) of the Supplement to fully satisfy such amounts
on such date.
If Party B notifies Party A that netting of payments will not apply to
any of the Transactions pursuant to Part 4(i) of the Schedule, each
payment obligation of Party B under Section 2(a)(i) of the Master
Agreement in respect of this Swap Transaction shall be subject to the
condition precedent that in respect of each such payment obligation each
amount payable by Party A with respect to this Swap Transaction shall be
paid by Party A by 10:00 a.m., New York City time, on the relevant
Payment Date.
Governing Law: -New York.
Offices:-Party A is not a Multibranch Party.
- -Party B is not a Multibranch Party.
Payment Instructions
for Party A USD:-
Payment Instructions
for the Trust in USD:
- -
Please confirm that the foregoing correctly sets forth the terms of our
agreement with respect to the Swap Transaction by signing in the space
provided below and sending a copy of the executed Confirmation by
telecopier ( ) to Client Services Group.
It has been a pleasure working with you on this transaction and we look
forward to working with you again in the future.
Very truly yours,
DEUTSCHE BANK AG,
NEW YORK BRANCH
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Agreed and Accepted by:
MBNA MASTER CREDIT CARD TRUST II,
THE BANK OF NEW YORK, solely
in its capacity as trustee and not
in its individual capacity
By: ______________________________
Name: Joseph G. Ernst
Title: Assistant Vice President
D-2
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