Exhibit 10.1
SCHEDULE
to the
Master Agreement
dated as of June 1, 2000
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 2000-E Supplement
dated as of June 1, 2000 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) 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 New York City time 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
or 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 and Party B make the following representations:
(i) The following representation will apply to Party B:
For United States federal income tax purposes it is a
"United States Person" as defined in 7701 (a)(30) of the
Internal Revenue Code.
(ii) The following representation will apply to Party A:
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 of
America.
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-An accurate and complete signed copy of each of Internal Revenue
Service Form W-8ECI (or any successor thereto) and Internal Revenue
Service Form W-8BEN (or any successor thereto), and all other related
forms (including any certificate with respect thereto) as Party B may
reasonably request.-(i) Concurrently with the execution and delivery of
this Agreement and the Confirmation, (ii) prior to the expiration of the
immediately preceding form that was in full force and effect, and
(iii) at any time that a change in circumstances renders the preceding
form 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 to this Schedule-Upon execution of this Agreement-Yes
Party A-An incumbency certificate with respect to the signatory of this
Agreement-Upon execution of this Agreement-Yes
Party B-An opinion of counsel for Party B substantially in the form of
Exhibit B 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 Agreement-
Yes
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
All notices to Party A under Sections 5 or 6 (other than notices
under Section 5(a)(i)) shall be sent to:
Address: Deutsche Bank AG, Head Office
Taunusanlage 12
60262 Frankfurt
GERMANY
Attention: Legal Department
Telex No: 411836 or 416731 or 41233
Answerback: DBF-D
with a copy to:
Deutsche Bank AG, New York Branch
31 W. 52nd Street
New York, New York 10019
USA
Attn: Swap Group
Tel: (1)(212) 469-4338
Fax: (1)(212) 469-4654
Telex: 429166
Answerback: DEUTNYK
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 - 12E
New York, New York 10286
Attention: Corporate Trust Department
Telephone No.: (212) 815-5737
Facsimile No.: (212) 815-5544
with a copy to:
MBNA Master Credit Card Trust II
MBNA America Bank, National Association,
as Servicer
Securitization Servicing
Wilmington, Delaware 19884-2824
Attention: Michelle Dumont
Telephone No.: (302) 457-0146
Facsimile No.: (302) 457-0715
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 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 C 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 senior debt rating of
Party A is 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 4.16(e)
of the Trust Agreement (as each such term is defined in the
Confirmation). Except as expressly provided in Part 5 (j) below,
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 Representations. Each of Party A and Party B
represents that it is an "eligible swap participant" as defined in
Commodities Futures Trading Commission Rule 35.1(b)(2)
(17 C.F.R. 35(b)(2)).
(i) Negative Interest Rates. Party A and Party B agree that:
if, with respect to a Calculation Period for a Transaction, a
party ("X") is obligated to pay a Floating Amount that is a
negative number (either by reason of a negative Floating Rate or
the subtraction of a Spread from the Floating Rate), the Floating
Amount with respect to X for that Calculation Period will be
deemed to be zero, and the other party ("Y") will pay to X the
absolute value of the negative Floating Amount, in addition to any
amounts otherwise owned by Y to X, on the Payment Date such
Floating Amount would have been payable if it had been a positive
number. Any amounts paid by Y to X pursuant to this provision
will be paid to such account as X may designate (unless Y gives
timely notice of a reasonable objection to such designation) in
the currency in which that Floating Amount would have been paid if
it had been a positive number (and without regard to the currency
in which Y is otherwise obligated to make payments).
(j) Limited Recourse. It is expressly understood and agreed by the
parties hereto that (i) this Agreement and each Transaction
entered into pursuant to this Agreement is entered into by The
Bank of New York, not individually or personally but solely as
Trustee of the MBNA Master Credit Card Trust II (the "Trust") in
the exercise of the powers and authority conferred and vested in
it, (ii) the representations, undertakings and agreements herein
made on the part of the Trust are made and intended not as
personal representations, undertakings and agreements by the
Trustee but are made and intended for the purpose of binding only
the Trust, (iii) nothing herein contained shall be construed as
creating any liability on the Trustee on the part of the Trust,
individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any,
being expressly waived by the parties who are signatories to this
Agreement and by any Persons claiming by, through or under such
parties; provided, however, that the Trustee shall be liable in
its individual capacity for its own willful misconduct or gross
negligence and (iv) under no circumstances shall the Trustee be
personally liable for the payment of any indebtedness or expenses
of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement.
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: /s/ Ruth Leung
Name: Ruth Leung
Title: Director
By: /s/ Gary Overton
Name: Gary Overton
Title: Director
MBNA MASTER CREDIT CARD TRUST II
THE BANK OF NEW YORK, solely in its
capacity as
trustee and not in its individual capacity
By: /s/ Cassandra Shedd
Name: Cassandra Shedd
Title: Assistant Treasurer
EXHIBIT A to Schedule
[Form of Opinion of Counsel for Party A]
EXHIBIT B to Schedule
[Form of Opinion of Counsel for Trustee]
EXHIBIT C to Schedule
Date: June 1, 2000
To: The Bank of New York acting as
Trustee for the
MBNA Master Credit Card Trust II
Telephone: (212) 815-5732
Telecopier: (212) 815-5999
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 ("Party B"), but only as relates to the Series 2000-E Class A 7.80%
Certificates (the "Trust") and Deutsche Bank AG New York Branch ("Party
A"). 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 1, 2000 between Party A and
Party B (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 supplemented by the 1998
Supplement) (as published by the International Swaps and Derivatives
Association, Inc.) (the "Definitions"), without regard to any amendment
to the Definitions subsequent to the date hereof, and (ii) the Series
2000-E Supplement dated as of June 1, 2000 (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 2000-E ("Series 2000-E")
and, in particular, for the purposes hereof, the Class A 7.80% Asset
Backed Certificates, Series 2000-E (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 1, 2000
Effective Date:-The Closing Date for Series 2000-E
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:-7.80%
Fixed Amount for Initial Fixed Rate Payer Payment Date:-$4,766,666.67
Fixed Amount:-For each Fixed Rate Payer Payment Date other than the
initial Fixed Rate Payer Payment Date, an amount calculated on a formula
basis for that Fixed Rate Payer Payment Date as follows:
Fixed Rate
Fixed =NotionalxFixed
AmountAmount Rate
12
Fixed Rate Notional
Amount:-For the initial Fixed Rate Payer Payment Date, $500,000,000 (the
initial outstanding principal balance of the Class A Certificates), and
for each Fixed Rate Payer Payment Date thereafter the outstanding
principal balance of Class A Certificates as of the Record Date
immediately preceding such Fixed Rate Payer Payment Date
Fixed Rate Payer Payment
Dates:-Each Transfer Date.
Floating Amounts:-
Floating Rate Payer:-Party B.
Calculation Periods:-For the initial Floating Rate Payer Payment Date,
the period from and including the Effective Date through the day
preceding the first Distribution Date; and for each Floating Rate Payer
Payment 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; provided, however, that the last
sentence of the definition of "USD-LIBOR-Reference Banks" is hereby
amended to replace the penultimate use of "that Reset Date" with "the
day that is two London Banking Days preceding that Reset Date."
Reset Dates:-Means, with respect to each Floating Rate Payer Payment
Date after the initial Floating Rate Payer Payment Date, the first day
of the related Calculation Period for such Floating Rate Payer Payment
Date.
Designated Maturity:-One month.
Floating Rate Spread:-
Floating Amount for Initial Floating Rate Payer Payment Date:-
$4,389,805.56
Floating Rate Notional Amount:-For the initial Floating Rate Payer
Payment Date, $500,000,000 (the initial outstanding principal balance of
the Class A Certificates), and for each Floating Rate Payer Payment Date
thereafter the outstanding principal balance of the Class A Certificates
as of the Record Date immediately preceding such Floating Rate Payer
Payment Date.
Floating Rate Day Count Fraction:-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 long-term senior debt rating is reduced below AA- by S&P, or
is withdrawn by S&P, 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
Series 2000-E Certificateholders that are payable from such account, the
Trustee will release all amounts on deposit therein to Party A.
-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 Fixed
Rate Payer Payment Date.
London Banking Day:-New York, New York and London, England.
Governing Law:-New York.
Offices:-Party A is a Multibranch Party.
-Party B is not a Multibranch Party.
Payment Instructions
for Party A USD:-Deutsche Bank, New York
ABA # 026 003 780
ACC # 100440170004
Payment Instructions
for the Trust in USD:-Bank of New York, New York
ABA# 021000018
A/C of MBNA Master Credit Card Trust II Series 2000-E
A/C# 234381
-
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 to us.
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: /s/ Katherine Andrews
Name: Katherine Andrews
Title:
By: /s/ Keith Doree
Name: Keith Doree
Title: Authorized Signatory
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: /s/ Cassandra Shedd
Name: Cassandra Shedd
Title: Assistant Treasurer
DOCSDC1:104690.5 2
