Exhibit
4.22
EXECUTION
COPY
TENTH
AMENDMENT
TO
THE MBNA
MASTER CREDIT CARD TRUST II
POOLING AND
SERVICING AGREEMENT
THIS
TENTH AMENDMENT TO THE MBNA MASTER CREDIT CARD TRUST II POOLING AND
SERVICING AGREEMENT, dated as of January 27, 2006 (this
“ Amendment ”) is by and between MBNA AMERICA
BANK, NATIONAL ASSOCIATION, as Seller and Servicer, and THE BANK OF
NEW YORK, as Trustee.
WHEREAS the Seller and Servicer and the Trustee have executed that
certain Pooling and Servicing Agreement, dated as of August 4,
1994 (as amended and supplemented through the date hereof and as
the same may be further amended, supplemented or otherwise modified
and in effect from time to time, the “ Pooling and
Servicing Agreement ”);
WHEREAS the Seller and Servicer and the Trustee wish to amend the
Pooling and Servicing Agreement as provided herein;
NOW
THEREFORE, in consideration of the promises and the agreements
contained herein, the parties hereto agree to amend the provisions
of the Pooling and Servicing Agreement as follows:
SECTION 1. Amendment of Section 1.01 .
Section 1.01 of the Pooling and Servicing Agreement is hereby
amended by adding the following definitions in the appropriate
alphabetical order:
“ Commission ” shall have the meaning specified
in Section 14.01.
“ Exchange Act ” shall mean the Securities
Exchange Act of 1934, as amended.
“ Regulation AB ” shall mean Subpart 229.1100
– Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff
from time to time.
“ Sarbanes Certification ” shall have the
meaning specified in Section 14.04(iii).
“ Securitization Transaction ” shall mean any
new issuance of Investor Certificates, pursuant to
Section 6.03, or new notes issued by the MBNA Credit Card
Master Note Trust, publicly offered or privately placed, rated or
unrated.
“ Servicing Criteria ” shall mean the
“servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
SECTION 2. Amendment of Section 3.05 .
Section 3.05 of the Pooling and Servicing Agreement is hereby
amended by deleting such Section in its entirety and inserting in
its place the following:
Section 3.05 Annual Servicer’s Certificate . On
or before the 60th day following the end of each fiscal year, the
Servicer will deliver, as provided in Section 13.05, to the
Trustee, any Credit Enhancement Provider and the Rating Agency, the
statement of compliance required under Item 1123 of Regulation
AB with respect to such fiscal year, which statement will be in the
form of an Officer’s Certificate to the effect that
(a) a review of the activities of the Servicer during such
fiscal year and of its performance under this Agreement was made
under the supervision of the officer signing such certificate and
(b) to the best of such officer’s knowledge, based on
such review, the Servicer has fulfilled all its obligations under
this Agreement throughout such fiscal year or, if there has been a
failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature
and status thereof. A copy of such certificate may be obtained by
any Investor Certificateholder by a request in writing to the
Trustee addressed to the Corporate Trust Office.
SECTION 3. Amendment of Section 3.06 .
Section 3.06 of the Pooling and Servicing Agreement is hereby
amended by deleting such Section in its entirety and inserting in
its place the following:
Section 3.06 Annual Independent Accountants’
Servicing Report . On or before the 60th day following the end
of each fiscal year, the Servicer shall cause a firm of nationally
recognized independent public accountants (who may also render
other services to the Servicer or the Seller) to furnish, as
provided in Section 13.05, to the Trustee, any Credit
Enhancement Provider and the Rating Agency each attestation report
on assessments of compliance with the Servicing Criteria with
respect to the Servicer or any affiliate thereof during the
immediately preceding fiscal year delivered by such accountants
pursuant to Rule 13(a)-18 or Rule 15(d)-18 of the Exchange Act and
Item 1122 of Regulation AB; provided , however ,
that solely with respect to the fiscal year ending June 30,
2006, the Servicer, in its sole and absolute discretion, rather
than cause the report described above to be furnished, may cause a
firm of nationally recognized independent public accountants (who
may also render other services to the Servicer or the Seller) to
furnish, as provided in Section 13.05, to the Trustee, any
Credit Enhancement Provider and the Rating Agency:
(i) each attestation report on assessments of compliance with the
Servicing Criteria with respect to the Servicer during the
six-month period ending June 30, 2006 delivered by such
accountants pursuant to Rule 13(a)-18 or Rule 15(d)-18 of the
Exchange Act and Item 1122 of Regulation AB; and
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(ii) (A) a report, based upon established criteria that meets
the standards applicable to accountants’ reports intended for
general distribution, attesting to the fairness of the assertion of
the Servicer’s management that its internal controls over the
functions performed as Servicer of the Trust are effective, in all
material respects, in providing reasonable assurance that Trust
assets are safeguarded against loss from unauthorized use or
disposition, on the date of such report, and a report attesting to
the fairness of the assertion of the Servicer’s management
that such servicing was conducted in conformity with the sections
of this Agreement during the period from July 1, 2005 to and
including December 31, 2005, except for such exceptions or
errors as such firm shall believe to be immaterial and such other
exceptions as shall be set forth in such report, and (B) a
report, prepared in accordance with the standards established by
the American Institute of Certified Public Accountants, to the
effect that they have compared the mathematical calculations of
certain amounts set forth in the monthly certificates forwarded by
the Servicer pursuant to Section 3.04(b) during the period
from July 1, 2005 to and including December 31, 2005 with
the Servicer’s computer reports which were the source of such
amounts and that, on the basis of such comparison, such firm is of
the opinion that such amounts are in agreement, except for such
exceptions as shall be set forth in such report.
Unless otherwise provided with respect to any Series in the related
Supplement, a copy of such report (or reports, as applicable) may
be obtained by any Investor Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office.
SECTION 4. Amendment of Section 6.09 .
Section 6.09(b) of the Pooling and Servicing Agreement is
hereby amended by the insertion of the following sentence before
the penultimate sentence of such Section:
In addition, the Seller agrees to provide notice of new issuances
of Series of Investor Certificates as may be required by and in
accordance with Item 1121(a)(14) of Regulation AB.
SECTION 5. Amendment of Section 11.10 .
Section 11.10(a) of the Pooling and Servicing Agreement is
hereby amended by deleting the first sentence thereof in its
entirety and inserting in its place the following:
Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be
located, the Trustee shall have the power and may execute and
deliver all instruments, subject to the prior written consent of
the Seller, to appoint one or more Persons to act as a co trustee
or co trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in
such capacity and for the benefit of the Certificateholders, such
title to the trust, or any part thereof, and, subject to the other
provisions of this Section 11.10, such powers, duties,
obligations, rights and trusts as the Trustee may consider
necessary or desirable.
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SECTION 6. Addition of Article XIV . The Pooling and
Servicing Agreement is hereby amended by adding the following new
Article XIV after Article XIII of the Pooling and Servicing
Agreement:
ARTICLE
XIV
COMPLIANCE
WITH REGULATION AB
Section 14.01. Intent of the Parties; Reasonableness .
The Seller, the Trustee and the Servicer acknowledge and agree that
the purpose of this Article XIV is to facilitate compliance by the
Seller with the provisions of Regulation AB and related rules and
regulations of the Securities and Exchange Commission (the “
Commission ”). The Seller shall not exercise its right
to request delivery of information or other performance under these
provisions other than in good faith, or for purposes other than the
Seller’s compliance with the Securities Act, the Exchange Act
and the rules and regulations of the Commission thereunder (or the
provision in a private offering of disclosure comparable to that
required under the Securities Act). The Trustee agrees to cooperate
in good faith with any reasonable request by the Seller for
information regarding the Trustee which is required in order to
enable the Seller to comply with the provisions of Items
1103(a)(1), 1109(a), 1109(b), 1117, 1118, 1119 and 1122 of
Regulation AB as it relates to the Trustee or to the
Trustee’s obligations under this Agreement or any Supplement.
The Servicer shall cooperate fully with the Seller to deliver to
the Seller (including any of its assignees or designees), any and
all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Seller
to permit the Seller to comply with the provisions of Regulation
AB, together with such disclosures relating to the Servicer and the
Accounts, or the servicing of the Receivables, reasonably believed
by the Seller to be necessary in order to effect such
compliance.
Section 14.02. Additional Representations and Warranties of
the Trustee . The Trustee shall be deemed to represent to the
Seller, as of the date on which information is provided to the
Seller under Section 14.03 that, except as disclosed in
writing to the Seller prior to such date: (i) neither the
execution or the delivery by the Trustee of this Agreement or any
Supplement, the performance by the Trustee of its obligations under
this Agreement or any Supplement nor the consummation of any of the
transactions by the Trustee contemplated thereby, is in violation
of any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement or
instrument to which the Trustee is a party or by which it is bound,
which violation would have a material adverse effect on the
Trustee’s ability to perform its obligations under this
Agreement or any Supplement, or of any judgment or order applicable
to the Trustee; and (ii) there are no proceedings pending or
threatened against the Trustee in any court or before any
governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would have a material
adverse effect on the right, power and authority of the Trustee to
enter into this Agreement or any Supplement or to perform its
obligations under this Agreement or any Supplement.
Section 14.03. Information to Be Provided by the
Trustee . The Trustee shall (i) on or before the final
Business Day of each month, provide to the Seller, in
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writing, such information regarding the Trustee as is requested for
the purpose of compliance with Item 1117 of Regulation AB, and
(ii) as promptly as practicable following notice to or
discovery by the Trustee of any changes to such information,
provide to the Seller, in writing, such updated information.
The Trustee shall (i) on or before the final Business Day of
each January, April, July and October, provide to the Seller such
information regarding the Trustee as is requested for the purpose
of compliance with Items 1103(a)(1), 1109(a), 1109
