DISCOVER CARD EXECUTION NOTE TRUST DiscoverSeries Notes [FORM OF] Underwriting Agreement (Standard Terms)
Exhibit 1.1
DISCOVER CARD EXECUTION NOTE TRUST
DiscoverSeries Notes
DiscoverSeries Notes
[_____] [___], [____]
[UNDERWRITER]
Ladies and Gentlemen:
Discover Card Execution Note Trust, a statutory trust created under the laws of the State of
Delaware (the “Issuer”) and Discover Bank (“Discover Bank”), as depositor (in such
capacity, the “Depositor”) of the Issuer, propose, subject to the terms and conditions
stated herein, to cause to be issued and sold from time to time notes of the series, classes and
tranches designated in the applicable Terms Agreement (as hereinafter defined)(the
“Notes”). The Notes will be issued pursuant to the Indenture, dated as of [___], 2007,
as supplemented by the Indenture Supplement, dated as of [___], 2007, and a Terms Document
having the date stated in the applicable Terms Agreement (as supplemented and as otherwise modified
or amended from time to time, the “Indenture”), between the Issuer and U.S. Bank National
Association, as trustee (in such capacity, the “Indenture Trustee”). The Issuer is
organized pursuant to a Trust Agreement, dated as of [___], 2007 (as modified or amended from
time to time, the “Trust Agreement”), between Discover Bank, as Beneficiary, and Wilmington
Trust Company, as owner trustee (the “Owner Trustee”). The Notes will be secured by
certain assets of the Issuer, including the Collateral Certificate referred to below (collectively,
the “Collateral”).
Discover Bank has conveyed certain receivables (the “Receivables”) generated from time
to time in certain designated Accounts owned by Discover Bank, collections thereon and certain
related property to the Discover Credit Card Master Trust I (the “Master Trust”) pursuant
to an Amended and Restated Pooling and Servicing Agreement, dated as of November 3, 2004 (as
modified or amended from time to time, and together with the Series Supplement (as hereinafter
defined), the “Pooling and Servicing Agreement”), as supplemented by the Series 2007-CC
Supplement (the “Series Supplement”), dated as of
[___], 2007, among Discover Bank, as Master Servicer (in such capacity, the “Master
Servicer”), as Servicer (in such capacity, the “Servicer”) and as Seller (in such
capacity, the “Seller”), and U.S. Bank National Association, as trustee (in such capacity,
the “Master Trust Trustee”). References herein to the Pooling and Servicing Agreement,
unless otherwise specified, shall mean the Pooling and Servicing Agreement as supplemented by the
Series Supplement. Pursuant to the Pooling and Servicing Agreement and the Trust Agreement,
Discover Bank has caused the Master Trust to issue to the Issuer a collateral certificate (the
“Collateral Certificate”). The Collateral Certificate represents an undivided interest in
certain assets of the Master Trust.
To the extent not defined herein, the capitalized terms used herein have the meanings assigned
in Indenture or the Pooling and Servicing Agreement, as applicable. Unless otherwise stated herein
or in the applicable Terms Agreement, as the context otherwise requires or if such term is
otherwise defined in the Indenture or the Pooling and Servicing Agreement, each capitalized term
used or defined herein or in the applicable Terms Agreement shall relate only to the Notes
designated in the applicable Terms Agreement, and shall not relate to any other series, classes or
tranches of notes issued by the Issuer.
Each offering of each tranche of Notes to which this Agreement applies made pursuant to the
Registration Statement (as defined herein) will be made through you or through you and other
underwriters for whom you are acting as representatives or through an underwriting syndicate
managed by you. Whenever Discover Bank and the Issuer determine to make such an offering of Notes
to which this Agreement shall apply, Discover Bank, the Issuer and one or more Underwriters (as
defined herein) will enter into an agreement (the “Terms Agreement”) providing for the sale
of the Notes to, and the purchase and offering thereof by, (i) you, (ii) you and such other
underwriters who execute the Terms Agreement and agree thereby to become obligated to purchase the
Notes from the Issuer, or (iii) you and such other underwriters, if any, selected by you as have
authorized you to enter into such Terms Agreement on their behalf (in each case, the
“Underwriters”). Such Terms Agreement shall specify the initial principal amount of the
Notes to be issued and their terms not otherwise specified in this Agreement, the price at which
such Notes are to be purchased by the Underwriters from the Issuer, the
aggregate amount of Notes to be purchased by you and any other Underwriter that is a party to such
Terms Agreement and the initial public offering price or the method by which the price at which
such Notes are to be sold will be determined. The Terms Agreement shall be substantially in the
form attached hereto as Exhibit A. Each such offering of the Notes for which a Terms
Agreement is entered into will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the benefit of and be
binding upon the Underwriters participating in the offering of such Notes. At or prior to the Time
of Sale (as defined in the applicable Terms Agreement), Discover Bank had prepared the Time of Sale
Information (as defined in the applicable Terms Agreement).
1. Discover Bank represents and warrants to, and agrees with you, as of the date hereof, and
to each Underwriter named in the Terms Agreement as of the date thereof, that:
(a) A registration statement on Form S-3 (Registration Statement Nos. [___] and
[___]) including a prospectus and such amendments thereto as may have been required to the
date hereof, relating to the Notes and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the “Act”), in the form heretofore
delivered to you has been filed with the Securities and Exchange Commission (the
“Commission”) (which may have included one or more preliminary prospectuses and prospectus
supplements (each, a “Preliminary Prospectus”) meeting the requirements of Rule 430 of the
Act) and such registration statement, as amended, has become effective; such registration
statement, as amended, and the prospectus and prospectus supplement relating to the sale of the
Notes offered thereby constituting a part thereof, as from time to time amended or supplemented
(including any prospectus and prospectus supplement filed with the Commission pursuant to Rule
424(b) of the Act) are respectively referred to herein as the “Registration Statement,” the “Basic
Prospectus” and the “Prospectus Supplement” and the Basic Prospectus together with the Prospectus
Supplement relating to the Notes is hereinafter referred to as the “Prospectus”; the conditions of
Rule 415 under the Act have been satisfied
with respect to the Registration Statement; and no other amendment to the Registration Statement
will be filed which shall be reasonably disapproved by you promptly after reasonable notice
thereof.
(b) There is no request by the Commission for any further amendment of the Registration
Statement or the Prospectus or for any additional information; the Commission has not issued any
stop order suspending the effectiveness of the Registration Statement and Discover Bank is not
aware of any proceeding for that purpose having been instituted or threatened; and there has been
no notification with respect to the suspension of the qualification for sale of the Notes for sale
in any jurisdiction or any proceeding for such purpose having been instituted or threatened.
(c) As of the date of the Terms Agreement, when the Registration Statement became effective,
when the Prospectus Supplement is first filed pursuant to Rule 424(b) under the Act, when any other
amendment to the Registration Statement becomes effective, and when any supplement to the
Prospectus Supplement is filed with the Commission, and at the Time of Delivery (as defined in
Section 5), the Registration Statement and the Prospectus (i) conformed, and any amendments or
supplements thereto will conform, in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and (ii) will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to Discover Bank by an Underwriter through you expressly for use
therein.
(d) The Time of Sale Information, at the Time of Sale did not, and at the Time of Delivery
will not, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that Discover Bank makes no representation or warranty
with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to Discover Bank in writing by such Underwriter
through you expressly for use in such Time of Sale Information.
(e) Upon payment therefor as provided herein and in the Terms Agreement, the Notes will have
been duly and validly authorized and (assuming their due authentication by the Indenture Trustee)
will have been duly and validly issued and will conform in all material respects to the description
thereof in the Prospectus and will be enforceable in accordance with the terms of the Indenture.
(f) The Collateral Certificate has been duly and validly authorized and (assuming its due
authentication by the Master Trust Trustee) will have been duly and validly issued and will conform
in all material respects to the description thereof in the Prospectus and will be entitled to the
benefits of the Pooling and Servicing Agreement.
(g) The issue and sale of the Notes and the compliance by Discover Bank with all of the
provisions of the Notes, the Pooling and Servicing Agreement, the Trust Agreement, this Agreement
and the Terms Agreement have been or will have been duly authorized by Discover Bank by all
necessary corporate action; and will not conflict with or result in any breach which would
constitute a material default under, or, except as contemplated by the Pooling and Servicing
Agreement, the Trust Agreement, or the Indenture, result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of Discover Bank or Discover Financial
Services (“DFS”), material to Discover Bank and DFS (whether or not consolidated)
considered as a whole, pursuant to the terms of, any indenture, loan agreement or other agreement
or instrument for borrowed money to which Discover Bank or DFS is a party or by which Discover Bank
or DFS may be bound or to which any of the property or assets of Discover Bank or DFS, material to
Discover Bank and DFS (whether or not consolidated) considered as a whole, is subject, nor will
such action result in any material violation of the provisions of the Certificate of Incorporation
or By-Laws of Discover Bank or, to the best of Discover Bank’s knowledge, any statute or any order,
rule or regulation applicable to Discover Bank of any court or any Federal, State or other
regulatory authority or other governmental body having jurisdiction over Discover Bank, and no
consent, approval, authorization or other order of, or filing with, any court or any such
regulatory authority or other governmental body is required for the issue and sale of the Notes
except as may be required under the Act, the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and securities laws of
the various states and other jurisdictions which are applicable to the issue and sale of the Notes
and except for the filing of any financing or continuation statement required to perfect or
continue the Master Trust’s interest in the Receivables.
(h) The Receivables conveyed by Discover Bank to the Master Trust under the Pooling and
Servicing Agreement had an aggregate outstanding balance determined as of the date stated in the
Terms Agreement of not less than the amount set forth in the Terms Agreement; and
(i) The Pooling and Servicing Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the Master Trust is not
required to be registered under the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(j) Other than the Prospectus, Discover Bank (including its agents and representatives other
than the Underwriters in their capacity as such) has not prepared, used or referred to and will not
prepare, use or refer to any “written communication” (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of an offer to buy the Notes other than (i) the Time
of Sale Information (the Time of Sale Information and each communication by Discover Bank or its
agents and representatives that constitutes an “issuer free writing prospectus”, as defined in Rule
433(h) under the Act (other than a communication referred to in clause (ii) below), an “Issuer
Free Writing Prospectus”), (ii) any communication or document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the Act or (iii) other written
communication of Discover Bank or its agents and representatives approved in writing in advance by
the Underwriters. Each Issuer Free Writing Prospectus complied or, if used after the date hereof,
will comply, in all material respects with the Act and the applicable rules and regulations
promulgated thereunder and has been filed or will be filed in accordance with Rule 433 under the
Act (to the extent required thereby).
(k) Discover Bank acknowledges that in connection with the offering of the Notes: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to Discover
Bank or any other person, (ii) the Underwriters owe Discover Bank only those duties and obligations
set forth in this Agreement and (iii) the Underwriters may have interests that differ from those of
Discover Bank.
Discover Bank waives to the full extent permitted by applicable law any claims it may have against
the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering
of the Notes.
(l) This Agreement, together with any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this Agreement) that relate to the offering of the
Notes, represents the entire agreement among Discover Bank, the Issuer and the Underwriters with
respect to the preparation of the Prospectus, and the conduct of the offering, and the purchase and
sale of the Notes.
2. The Issuer represents and warrants to, and agrees with you, as of the date hereof, and to
each Underwriter named in the Terms Agreement as of the date thereof, that:
(a) The issue and sale of the Notes and the compliance by the Issuer with all of the
provisions of the Notes, the Indenture, this Agreement and the Terms Agreement have been or will
have been duly authorized by the Issuer by all necessary statutory trust action; and will not
conflict with or result in any breach which would constitute a material default under, or, except
as contemplated by the Indenture, result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Issuer, material to the Issuer, pursuant to
the terms of, any indenture, loan agreement or other agreement or instrument for borrowed money to
which the Issuer is a party or by which the Issuer may be bound or to which any of the property or
assets of the Issuer, material to Issuer, is subject, nor will such action result in any material
violation of the provisions of the Trust Agreement or, to the best of the Issuer’s knowledge, any
statute or any order, rule or regulation applicable to the Issuer of any court or any Federal,
State or other regulatory authority or other governmental body having jurisdiction over the Issuer,
and no consent, approval, authorization or other order of, or filing with, any court or any such
regulatory authority or other governmental body is required for the issue and sale of the Notes
except as may be required under the Act, the Exchange Act, and securities laws of the various
states and other jurisdictions which are applicable to the issue and sale of the Notes and except
for the
filing of any financing or continuation statement required to perfect or continue the Indenture
Trustee’s interest in the Receivables.
(b) The Issuer is not required to be registered under the Investment Company Act.
(c) Other than the Prospectus, the Issuer (including its agents and representatives other than
the Underwriters in their capacity as such) has not prepared, used or referred to and will not
prepare, use or refer to any “written communication” (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of an offer to buy the Notes other than (i) the Time
of Sale Information, (ii) any communication or document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Act or Rule 134 under the Act or (iii) other written communication of
the Issuer or its agents and representatives approved in writing in advance by the Underwriters.
Each Issuer Free Writing Prospectus complied or, if used after the date hereof, will comply, in all
material respects with the Act and the applicable rules and regulations promulgated thereunder and
has been filed or will be filed in accordance with Rule 433 under the Act (to the extent required
thereby).
(d) The Issuer is not, and on the date on which the first bona fide offer of the Notes was
made (within the meaning of Rule 164(h)(2) under the Act) was not, an “ineligible issuer”, as
defined in Rule 405 under the Act.
(e) The Issuer acknowledges that in connection with the offering of the Notes: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to the
Issuer or any other person, (ii) the Underwriters owe the Issuer only those duties and obligations
set forth in this Agreement and (iii) the Underwriters may have interests that differ from those of
the Issuer. The Issuer waives to the full extent permitted by applicable law any claims it may have
against the Underwriters arising from an alleged breach of fiduciary duty in connection with the
offering of the Notes.
(f) This Agreement, together with any contemporaneous written agreements and any prior written
agreements (to the extent not superseded by this Agreement) that relate to the offering of the
Notes, represents the entire agreement between the Issuer, Discover Bank and the Underwriters with
respect to the preparation of the Prospectus, and the conduct of the offering, and the purchase and
sale of
the Notes.
3. Subject to the terms and conditions herein set forth, the Issuer Agrees to sell and
Discover Bank agrees to cause the Issuer to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, agrees to purchase from the Issuer, at the
purchase price specified in the Terms Agreement, the principal amount of Notes set forth in the
Terms Agreement.
4. (a) From time to time, after the Registration Statement becomes effective, the several
Underwriters propose to offer the Notes for sale upon the terms and conditions set forth in the
Prospectus.
(b) Each Underwriter severally represents and agrees that it will not offer or sell or deliver
any of the Notes in any jurisdiction except under circumstances that will result in compliance with
the applicable laws thereof, and without limiting the foregoing, each Underwriter severally
represents and agrees that (i) (a) it is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes
of its business and (b) it has not offered or sold and will not offer or sell any securities other
than to persons whose ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or who it is reasonable
to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the
purposes of their businesses where the issue of the securities would otherwise constitute a
contravention of Section 19 of the Financial Services and Markets Xxx 0000 (the “FSMA”) by
the issuer; (ii) it has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement (a) to engage in investment activity (within
the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of any
securities in circumstances in which section 21(1) of the FSMA does not apply to the issuer or (b)
to participate in a collective investment scheme (within the meaning of Section 238 of the FSMA) in
circumstances in which Section 238(1) of the FSMA does not apply; (iii) it has only communicated or
caused to be communicated and will only communicate or cause to be communicated any invitation or
inducement to participate in a collective investment scheme (within the meaning of section 238 of
the FSMA) in circumstances in which section 238(1) of the FSMA does not apply; (iv) it is a person
of a kind described in Article 19 of the Financial Services and Markets Xxx 0000 (Financial
Promotion) Order 2005; and (v) it has complied with and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the securities in, from or otherwise
involving the United Kingdom.
(c) Each Underwriter, severally, represents that it will not, at any time that such
Underwriter is acting as an “underwriter” (as defined in Section 2(11) of the Act) with respect to
the Notes, transfer, deposit or otherwise convey any Notes into a trust or other type of special
purpose vehicle that issues securities or other instruments backed in whole or in part by, or that
represents interests in, such Notes without the prior written consent of Discover Bank and the
Issuer.
5. Notes to be purchased by each Underwriter hereunder and under the Terms Agreement shall be
delivered by or on behalf of the Issuer to you for the account of such Underwriter, against payment
by such Underwriter or on its behalf of the purchase price thereof in immediately available funds.
Unless otherwise specified in the Terms Agreement, such delivery shall occur at the office of
Xxxxxx & Xxxxxxx LLP, Chicago, Illinois or such other place as you and Discover Bank may agree upon
in writing. The time and date of such delivery shall be set forth in the Terms Agreement or at such
other time and date as you and Discover Bank may agree upon in writing, such time and date being
herein called the “Time of Delivery.” Unless otherwise specified in the Terms Agreement, the Notes
shall be represented by definitive notes, registered in the name of Cede & Co., as nominee for The
Depository Trust Company. Such definitive notes will be made available for inspection at least
twenty-four hours prior to the Time of Delivery at the office of the Trustee, U.S. Bank, 209 X.
XxXxxxx Street, 3rd Floor, Mail Code MK-IL-RY3B.
6. Discover Bank and the Issuer agree with each of the Underwriters:
(a) Immediately following the execution of each Terms Agreement, Discover Bank will prepare a
Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not
otherwise specified in the Basic Prospectus, the price at which such Notes are to be purchased by
the Underwriters from the Issuer, either the initial public offering price or the method by which
the price at which such Notes are to be sold will be determined, the selling concessions and
allowances, if any, and such other information as Discover Bank deems appropriate in connection
with the offering of such Notes, and Discover Bank will not make any further amendment or any
supplement to the Registration Statement or Prospectus or prepare, use or refer to or file any
Issuer Free Writing Prospectus without first having furnished you with a copy of the proposed form
thereof and given you a reasonable opportunity to review and will not use or refer to or file any
proposed Issuer Free Writing Prospectus to which you reasonably object; to advise you and your
counsel promptly after it receives notice of the time when any post-effective amendment to the
Registration Statement has been filed or becomes effective or any supplement to the Prospectus, any
amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish you and your
counsel with copies thereof; to advise you and your counsel, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus, of the suspension of the qualification of the Notes for
offering or sale in any jurisdiction, or the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and in the event of the
issuance of any such stop order or of any such order preventing or suspending the use of such
Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as you may reasonably request to qualify
the Notes for offering and sale under the securities laws of such jurisdictions as you may
reasonably request and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Notes, provided that in connection therewith neither Discover Bank nor the Issuer shall be
required to qualify as
a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus and each Issuer Free Writing
Prospectus in such quantities as you may from time to time reasonably request, and if at any time
the delivery of a Prospectus is required by law in connection with the offering or sale of the
Notes, and if at such time any event shall have occurred as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, or, if for any other reason it shall be necessary during such same period to amend
or supplement the Prospectus in order to comply with the Act, to notify you and to prepare and
furnish without charge to each Underwriter and to any dealer in the Notes as many copies as you may
from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance and in case any Underwriter
is required to deliver a Prospectus in connection with sales of any Notes at any time nine months
or more after the effective date of the Registration Statement, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as you may
reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(d) Discover Bank will cause the Issuer to make generally available to holders of the Notes,
in accordance with Rule 158 under the Act or otherwise, as soon as practicable, but in any event
not later than forty-five days after the end of the fourth full fiscal quarter (ninety days in the
case of the last fiscal quarter in any fiscal year) following the fiscal quarter ending after the
effective date of the Registration Statement, an earning statement of the Issuer (which need not be
audited) complying with Section 11(a) of the Act and covering a period of at least twelve
consecutive months beginning after the effective date of such Registration Statement;
(e) To pay or cause to be paid all expenses incident to the performance of its obligations
hereunder, including the cost of all qualifications of the Notes under state securities laws
(including reasonable fees of counsel to the Underwriters in connection with such qualifications
and in connection
with legal investment surveys), the cost of printing this Agreement and any blue sky and legal
investment memoranda, and the cost incurred with the preparation and filing of the Registration
Statement, the Time of Sale Information and any Issuer Free Writing Prospectus;
(f) To comply with the requirements of Rule 433 under the Act applicable to any Issuer Free
Writing Prospectus, including, without limitation, timely filing with the Commission or retention
where required and legending;
(g) Each Underwriter covenants with Discover Bank and the Issuer not to distribute any
communication other than Time of Sale Information and any announcement communication, launch
communication, subsequent guidance, update communication or any similar communication in
substantially the form agreed to by Discover Bank and the Underwriters.
Discover Bank and the Issuer agree with each of the Underwriters during the period beginning
from the date of the Terms Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Notes, of which termination you agree to give Discover
Bank and the Issuer prompt notice confirmed in writing, and (ii) the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of any securities of Discover Bank or any other
affiliate thereof or any other trust for which Discover Bank or any other affiliate thereof is
depositor, which represent participation interests in Discover Card receivables, without your prior
written consent, which consent shall not be unreasonably withheld.
7. The obligations of the several Underwriters hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of
Discover Bank and the Issuer herein are, at and as of the Time of Delivery, true and correct, the
condition that Discover Bank and the Issuer shall have performed all of their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) All actions required to be taken and all filings required to be made by Discover Bank and
the Issuer under the Act prior to the Time of Delivery for the Notes shall have been duly taken or
made; and prior to the applicable Time of Delivery, no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the Commission’s
satisfaction.
(b) All corporate and statutory trust proceedings and related matters in connection with the
organization of Discover Bank and the Issuer, the validity of the Pooling and Servicing Agreement,
the Indenture, the Trust Agreement, the Trust Certificate (as defined in the Trust Agreement) and
the registration, authorization, issue, sale and delivery of the Notes shall have been satisfactory
to counsel to the Underwriters, and such counsel shall have been furnished with such papers and
information as they may reasonably have requested to enable them to pass upon the matters referred
to in this subdivision (b).
(c) Counsel to Discover Bank (which for purposes of the opinions described in clauses
(i)-(iii) and the opinions as to the due authorization, execution and delivery of the Pooling and
Servicing Agreement and the Trust Agreement and the due authorization, execution, issuance and
delivery of the Collateral Certificate in clause (iv) may be in-house counsel to Discover Bank)
shall have furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you in your reasonable judgment, to the effect that:
(i) Discover Bank is validly existing as a banking corporation in good standing under the laws
of the State of Delaware;
(ii) This Agreement and the Terms Agreement have been duly authorized, executed and delivered
on the part of Discover Bank;
(iii) The compliance by Discover Bank with all of the provisions of this Agreement, the Terms
Agreement, the Pooling and Servicing Agreement and the Trust Agreement and the delivery of the
Collateral Certificate will not conflict with or result in any breach which would constitute a
material default under, or, except to the extent contemplated in the Pooling and Servicing
Agreement, the Trust Agreement, or the Indenture, result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of Discover Bank or DFS, material to
Discover Bank and DFS (whether or
not consolidated) considered as a whole, pursuant to the terms of, any indenture, loan agreement or
other agreement or instrument for borrowed money known to such counsel to which Discover Bank or
DFS is a party or by which Discover Bank or DFS may be bound or to which any of the property or
assets of Discover Bank or DFS, material to Discover Bank and DFS (whether or not consolidated)
considered as a whole, is subject, nor will such action result in any material violation of the
provisions of the Certificate of Incorporation or the By-Laws of Discover Bank, or to the best
knowledge of such counsel, any statute or any order, rule or regulation applicable to Discover Bank
of any court or any Federal, State or other regulatory authority or other governmental body having
jurisdiction over Discover Bank other than the Act, the Exchange Act, the Trust Indenture Act and
the Investment Company Act and the rules and regulations under each of such acts and other than the
securities laws of the various states or other jurisdictions which are applicable to the issue and
sale of the Notes and other state laws relating to the perfection of security interests; and, to
the best knowledge of such counsel, no consent, approval, authorization or other order of, or
filing with, any court or any such regulatory authority or other governmental body is required for
the issue and sale of the Notes except as may be required under the Act, the Exchange Act, the
Trust Indenture Act and the Investment Company Act and securities laws of the various states or
other jurisdictions which are applicable to the issue and sale of the Notes and except for the
filing of any financing or continuation statement required to perfect or continue the Master
Trust’s interest in the Receivables or the Issuer’s interest in the Collateral;
(iv) The Pooling and Servicing Agreement and the Trust Agreement have been duly authorized,
executed and delivered on the part of Discover Bank and as to Discover Bank are valid and binding
instruments enforceable in accordance with their terms except as the foregoing may be limited by
insolvency, bankruptcy, reorganization, moratorium or other laws relating to or affecting the
enforcement of creditors’ rights or by general equity principles; the Pooling and Servicing
Agreement and the Trust Agreement are not required to be qualified under the Trust Indenture Act;
the Master Trust is not required to be registered under the Investment Company Act; and the
Collateral Certificate has been duly authorized and (assuming its due authentication by the Master
Trust Trustee) has been duly executed,
issued and delivered and constitutes a valid and binding obligation of the Master Trust in
accordance with its terms, entitled to the benefits of the Pooling and Servicing Agreement, except
as the foregoing may be limited by insolvency, bankruptcy, reorganization or other laws relating to
or affecting the enforcement of creditors’ rights or by general equity principles; and
(v) The Registration Statement and the Prospectus and any further amendments and supplements
thereto made by Discover Bank [or the Issuer] prior to the Time of Delivery (other than financial,
statistical and accounting data therein as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and the rules and regulations
thereunder.
In rendering such opinion, counsel may rely to the extent they deem appropriate upon
certificates of officers or other executives of Discover Bank and their affiliates and of public
officials as to factual matters and upon opinions of other counsel. Such counsel shall also state
that nothing has come to their attention which has caused them to believe that the Registration
Statement as of its effective date or the Time of Sale Information as of the Time of Sale or the
Prospectus as of the date thereof and as of the applicable Time of Delivery (other than financial,
statistical and accounting data therein, as to which such counsel need express no belief) contains
an untrue statement of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances in which they
were made, not misleading.
(d) Counsel to the Issuer shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you in your reasonable judgment, to the effect
that:
(i) The Issuer is validly existing as a statutory trust in good standing under the laws of the
State of Delaware;
(ii) This Agreement and the Terms Agreement have been duly authorized, executed and delivered
on the part of the Issuer;
(iii) The compliance by the Issuer with all of the provisions of this Agreement, the Terms
Agreement, the Indenture and the Trust Agreement and the delivery of the Notes and the Trust
Certificate
(as defined in the Trust Agreement) will not conflict with or result in any breach which would
constitute a material default under, or, except to the extent contemplated in the Pooling and
Servicing Agreement or the Indenture, result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Issuer, material to the Issuer considered as
a whole, pursuant to the terms of, any indenture, loan agreement or other agreement or instrument
for borrowed money known to such counsel to which the Issuer is a party or by which the Issuer may
be bound or to which any of the property or assets of the Issuer, material to the Issuer considered
as a whole, is subject, nor will such action result in any material violation of the provisions of
the Trust Agreement, or to the best knowledge of such counsel, any statute or any order, rule or
regulation applicable to the Issuer of any court or any Federal, State or other regulatory
authority or other governmental body having jurisdiction over the Issuer other than the Act, the
Exchange Act, the Trust Indenture Act and the Investment Company Act and the rules and regulations
under each of such acts and other than the securities laws of the various states or other
jurisdictions which are applicable to the issue and sale of the Notes and other state laws relating
to the perfection of security interests; and, to the best knowledge of such counsel, no consent,
approval, authorization or other order of, or filing with, any court or any such regulatory
authority or other governmental body is required for the issue and sale of the Notes except as may
be required under the Act, the Exchange Act, the Trust Indenture Act and the Investment Company Act
and securities laws of the various states or other jurisdictions which are applicable to the issue
and sale of the Notes and except for the filing of any financing or continuation statement required
to perfect or continue the Issuer’s interest in the Collateral;
(iv) The Indenture has been duly authorized, executed and delivered on the part of the Issuer
and as to the Issuer is a valid and binding instrument enforceable in accordance with its terms
except as the foregoing may be limited by insolvency, bankruptcy, reorganization, moratorium or
other laws relating to or affecting the enforcement of creditors’ rights or by general equity
principles; the Indenture is qualified under the Trust Indenture Act; the Issuer is not required to
be registered under the Investment Company Act; and the Notes have been duly authorized and
(assuming their due
authentication by the Indenture Trustee) have been duly executed, issued and delivered and
constitute valid and binding obligations of the Issuer in accordance with their terms, enforceable
in accordance with the terms of the Indenture, except as the foregoing may be limited by
insolvency, bankruptcy, reorganization or other laws relating to or affecting the enforcement of
creditors’ rights or by general equity principles; and
(e) At the Time of Delivery, Deloitte & Touche LLP shall have furnished to you a letter or
letters, dated the respective date of delivery thereof, in form and substance satisfactory to you;
(f) (i) Discover Bank and its affiliates (whether or not consolidated) considered as a whole,
shall not have sustained, since the date of the latest audited financial statement previously
delivered to you, any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree and (ii) since the date of the Terms Agreement there shall not
have been any material change in the capital stock accounts or long-term debt of Discover Bank or
any material adverse change in the general affairs, financial position, shareholders’ equity or
results of operations of Discover Bank and its affiliates (whether or not consolidated) considered
as a whole, the effect of which in any such case described in clause (i) or (ii), in your judgment
renders it inadvisable to proceed with the public offering or the delivery of the Notes on the
terms and in the manner contemplated in the Prospectus as amended or supplemented; provided,
however, that each Underwriter hereby agrees that the proposed spin-off of DFS as contemplated in
filings made by Xxxxxx Xxxxxxx with the Commission on and prior to the Time of Sale will not render
it inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in
the manner contemplated in the Prospectus as amended or supplemented;
(g) Subsequent to the date of the Terms Agreement none of (i) trading generally shall have
been suspended or materially limited on, or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the NASDAQ National Market, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, or any successor entity of
any such exchange, (ii) any moratorium on commercial banking activities shall have been declared
by
either Federal or New York State authorities, (iii) a material disruption in securities settlement,
payment or clearance services in the United States shall have occurred, (iv) the United States
shall have become engaged in the outbreak or escalation of hostilities involving the United States
or there has been a declaration by the United States of a national emergency or a declaration of
war or (v) there shall have occurred any change in financial markets or any other calamity or
crisis that, in your judgment, is material and adverse, any of which events, singly or together
with any other event specified in this subsection (g) makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Notes on the terms and in the manner
contemplated in the Prospectus;
(h) At or prior to the Time of Delivery, the Notes shall be assigned the ratings by Xxxxx’x
Investors Service, Inc. (“Moody’s”), Standard & Poor’s Ratings Services, a division of The
XxXxxx-Xxxx Companies Inc. (“Standard & Poor’s”) and Fitch, Inc. (“Fitch”) set
forth in the Terms Agreement;
(i) Discover Bank and the Issuer shall have furnished or caused to be furnished to you at the
Time of Delivery certificates satisfactory to you as to the accuracy at and as of such Time of
Delivery of the representations and warranties of Discover Bank and the Issuer herein and as to the
performance by Discover Bank and the Issuer of all their respective obligations hereunder to be
performed at or prior to the Time of Delivery and Discover Bank and the Issuer shall have also
furnished you similar certificates satisfactory to you as to the matters set forth in subdivision
(a) of this Section 7.
(j) The Underwriters shall be entitled to rely on the opinions of an outside counsel
acceptable to the Underwriters as special counsel to Discover Bank [and the Issuer] as delivered to
Moody’s, Standard & Poor’s and Fitch in connection with the rating of the Notes.
8. (a) Discover Bank will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in
any Preliminary Prospectus, the Registration Statement, any Issuer Free Writing Prospectus or the
Prospectus, or any amendment or supplement thereto furnished by Discover Bank or the Issuer, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or (in the case of the Registration Statement, any Issuer Free
Writing Prospectus or the Prospectus, or any amendment or supplement thereto) necessary to make the
statements therein not misleading or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that Discover Bank shall
not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity
with written information furnished to Discover Bank by any Underwriter through you expressly for
use therein; and provided, further, that Discover Bank shall not be liable to any Underwriter or
any person controlling such Underwriter under the indemnity agreement in this subdivision (a) with
respect to the Preliminary Prospectus, or any Issuer Free Writing Prospectus, as the case may be,
to the extent that any such loss, claim, damage or liability of such Underwriter or controlling
person results solely from the fact that such Underwriter sold Notes to a person to whom there was
not sent or given, at or prior to the Time of Sale, the Time of Sale Information (including, for
the avoidance of doubt, any Time of Sale Information that corrected or superseded any information previously
provided to the Underwriters) if Discover Bank had previously furnished copies thereof
to such Underwriter prior to the Time of Sale.
(b) Each Underwriter will indemnify and hold harmless Discover Bank against any losses,
claims, damages or liabilities to which Discover Bank may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated therein or (in the case
of the Registration Statement, Issuer Free Writing Prospectus or the Prospectus, or any amendment
or supplement thereto) necessary to make the statements therein not misleading or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus,
any Issuer Free Writing Prospectus, the Registration Statement, or the Prospectus, or any such
amendment or supplement in reliance upon and in conformity with Underwriter Information (as defined
in the applicable Terms Agreement); and will reimburse Discover Bank for any legal or other
expenses reasonably incurred by Discover Bank in connection with investigating or defending any
such action or claim.
(c) Within a reasonable period after receipt by an indemnified party under subdivision (a) or
(b) above of notice of the commencement of any action with respect to which indemnification is
sought under such subdivision or contribution may be sought under subdivision (d) below, such
indemnified party shall notify the indemnifying party in writing of the commencement thereof. In
case any such action shall be brought against any indemnified party, the indemnifying party shall
be entitled to participate therein, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under subdivision (a) or (b) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) (i) in such proportion as is appropriate to reflect the relative
benefits received by Discover Bank on the one hand and the Underwriters on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of Discover Bank on the one hand and
the Underwriters on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by Discover Bank on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by Discover Bank bear to the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth on
the cover page of the Prospectus Supplement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by Discover
Bank on the one hand and the Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission of Discover
Bank on the one hand and the Underwriters, directly or through you, on the other hand. With respect
to any Underwriter, such relative fault shall also be determined by reference to the extent (if
any) to which such losses, claims, damages or liabilities (or actions in respect thereof) result
from the fact that such Underwriter sold the Notes to a person to whom there was not sent or given,
at or prior to the written confirmation of such sale, copies of the Time of Sale Information if
Discover Bank had previously furnished copies thereof to such Underwriter. Discover Bank and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this
subdivision (d) were determined by per capita allocation among the indemnifying parties (even if
the Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this subdivision
(d). The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above in this
subdivision (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters in this subdivision (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of Discover Bank under this Section 8 shall be in addition to any
liability which Discover Bank may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of Discover Bank and to each person, if any, who controls
Discover Bank within the meaning of the Act.
9. Each Underwriter hereby agrees that it shall not institute against, or join any other
person or entity in instituting against the Issuer or the Master Trust any bankruptcy,
reorganization, arrangement, insolvency, moratorium or liquidation proceedings or other proceedings
under United States federal or state laws, or other bankruptcy or similar laws, in connection with
any obligations owing to it until at least one year and one day from the date of the Time of Sale
or, if longer, the applicable preference period then in effect. Each Underwriter hereby
acknowledges and agrees that the Issuer’s obligations hereunder will be solely the corporate
obligations of the Issuer, and that such Underwriter will not have any recourse
to any of the directors, officers, employees, shareholders or affiliates of the Issuer with respect
to any claims, losses, damages, liabilities, indemnities or other obligations in connection with
any transactions contemplated hereby. Notwithstanding any other provisions hereof, recourse in
respect of any obligations of the Issuer to each Underwriter will be limited to such funds that are
available to the Issuer under the Indenture and upon the exhaustion thereof all obligations of, and
claims against, the Issuer arising from this Agreement or any transactions contemplated hereby or
thereby shall be extinguished and shall not thereafter revive.
10. (a) If any Underwriter shall default in its obligation to purchase the Notes which it has
agreed to purchase hereunder and under the Terms Agreement, you may in your discretion arrange for
yourselves or another party or other parties to purchase such Notes on the terms contained herein.
If within thirty-six hours after such default by any Underwriter you do not arrange for the
purchase of such Notes, then Discover Bank and the Issuer shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties to purchase such Notes on
such terms. In the event that, within the respective prescribed periods, you notify Discover Bank
and the Issuer that you have so arranged for the purchase of such Notes, or either Discover Bank or
the Issuer notifies you that it has so arranged for the purchase of such Notes, you, Discover Bank,
or the Issuer shall have the right to postpone the Time of Delivery for such Notes for a period of
not more than seven days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any other documents or
arrangements, and Discover Bank and the Issuer agree to file promptly any amendments or supplements
to the Registration Statement or the Prospectus which may thereby be made necessary. The term
“Underwriter” as used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement with respect to
such Notes.
(b) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Underwriter or Underwriters by you, Discover Bank and the Issuer as provided in subdivision
(a) above, the aggregate principal amount of such Notes which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Notes, then Discover Bank and the Issuer
shall have the right to require each non-defaulting Underwriter to purchase the principal amount of
Notes which such Underwriter agreed to purchase hereunder and under the Terms Agreement and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of the Notes which such Underwriter agreed to purchase hereunder and under the
Terms Agreement) of the Notes of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Underwriter or Underwriters by you, Discover Bank and the Issuer as provided in subdivision (a)
above, the aggregate principal amount of Notes which remains unpurchased exceeds one-eleventh of
the aggregate principal amount of all the Notes, as referred to in subdivision (b) above, or if
neither Discover Bank nor the Issuer exercises the right described in subdivision (b) above to
require non-defaulting Underwriters to purchase Notes of a defaulting Underwriter or Underwriters,
then the Terms Agreement relating to the Notes shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter, Discover Bank or the Issuer, except for the expenses to be
borne by Discover Bank and the Issuer as provided in Section 6(e) hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of Discover Bank, the Issuer and the several Underwriters, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, Discover Bank or any
officer or director or controlling person of Discover Bank, or the Issuer or any officer or
director or controlling person of the Issuer, and shall survive delivery of and payment for the
Notes. Anything herein to the contrary notwithstanding, the
indemnity agreement of Discover Bank and the Issuer in subdivisions (a) and (e) of Section 8
hereof, the representations and warranties in subdivisions (b) and (c) of Section 1 hereof and any
representation or warranty as to the accuracy of the Registration Statement or the Prospectus as
amended or supplemented contained in any certificate furnished by Discover Bank or the Issuer
pursuant to subdivision (i) of Section 7 hereof, insofar as they may constitute a basis for
indemnification for liabilities (other than payment by Discover Bank or the Issuer of expenses
incurred or paid in the successful defense of any action, suit or proceeding) arising under the
Act, shall not extend to the extent of any interest therein of an Underwriter or a controlling
person of an Underwriter if a director, officer or controlling person of Discover Bank or the
Issuer when the Registration Statement becomes effective or a person who, with his consent, is
named in the Registration Statement as being about to become a director of Discover Bank or the
Issuer, is a controlling person of such Underwriter, except in each case to the extent that an
interest of such character shall have been determined by a court of appropriate jurisdiction as not
against public policy as expressed in the Act. Unless in the opinion of counsel for Discover Bank
and the Issuer the matter has been settled by controlling precedent, Discover Bank and the Issuer
will, if a claim for such indemnification is asserted, submit to a court of appropriate
jurisdiction the question whether such interest is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
12. If the Terms Agreement shall be terminated pursuant to Section 10 hereof, neither Discover
Bank nor the Issuer shall be under any liability to any Underwriter with respect to the Notes
subject to such Terms Agreement except as provided in Section 6(e) and Section 8 hereof; but, if
for any other reason the Notes are not delivered by or on behalf of Discover Bank and the Issuer as
provided herein, Discover Bank and the Issuer will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery
of the Notes, but neither Discover Bank nor the Issuer shall then be under any further liability to
any Underwriter with respect to the Notes
except as provided in Section 6(e) and Section 8 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you, or by [UNDERWRITER] on behalf of you.
All statements, requests, notices and agreements hereunder shall be in writing or by telegram if
promptly confirmed in writing and if to the Underwriters shall be sufficient in all respects, if
delivered or sent by registered mail to you jointly in care of [UNDERWRITER], if to Discover Bank
shall be sufficient in all respects if delivered or sent by registered mail to Discover Bank at 12
Read’s Way, New Castle, Delaware 19720, Attention: President and if to the Issuer shall be
sufficient in all respects if delivered or sent by registered mail to the Issuer at [ ].
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, Discover Bank, the Issuer and, to the extent provided in Section 8 and Section 11
hereof, the officers and directors of Discover Bank and the Issuer and each person who controls
Discover Bank, the Issuer or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or have any right under
or by virtue of this Agreement. No purchaser of any of the Notes from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement.
16. This Agreement shall be construed in accordance with the laws of the State of New York.
“Business day” as used herein shall mean any day when the Commission’s office in Washington, D.C.
is normally open for business.
17. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your under-standing, please sign and return three
counterparts hereof and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters, Discover Bank and the Issuer.
| Very truly yours, | ||||||
| DISCOVER CARD EXECUTION
NOTE TRUST, as Issuer |
||||||
| By: Discover Bank, not in its individual | ||||||
| capacity but solely as Depositor on behalf of | ||||||
| the Issuer | ||||||
| By: | ||||||
| DISCOVER BANK | ||||||
| By: | ||||||
Accepted as of the date hereof:
[UNDERWRITER]
[UNDERWRITER]
By:
Exhibit A
DISCOVER CARD EXECUTION NOTE TRUST
DISCOVERSERIES
Class [_]([____])
ASSET BACKED NOTES
TERMS AGREEMENT
DISCOVERSERIES
Class [_]([____])
ASSET BACKED NOTES
TERMS AGREEMENT
Dated: [________] [___], [___]
| To: | DISCOVER CARD EXECUTION NOTE TRUST DISCOVER BANK |
| Re: | Underwriting Agreement dated [______] [_____], [____] (the “Agreement”) |
Series Designation:
DiscoverSeries.
Registration Statement:
Nos. [ ] and [ ].
Title of Securities:
Discover
Card Execution Note Trust, DiscoverSeries Class
[___]([___]) Notes (the
“Notes”).
Initial Principal Amount of Notes:
$[ ].
Expected Note Rating:
[___] by Xxxxx’x Investor Service, Inc.
[___] by Standard & Poor’s Rating Services
[___] by Fitch, Inc.
[___] by Standard & Poor’s Rating Services
[___] by Fitch, Inc.
[Aggregate
outstanding balance of Receivables in the Discover Card Master Trust I as of
[ ] [___], [___]: $[ ].]
Expected Date of Terms Document: [___] [___], [___].
Interest Rate or Formula: [___].
Time of Sale:
[___] [a.m/p.m.] New York City time on [___] [___], [___].
Time of Sale Information:
(1) [Tranche Term Sheet dated [___] [___], [___] relating to the Discover Card
Execution Note Trust, DiscoverSeries Class [___](the “Tranche Term Sheet”),
attached as Annex 1 hereto[, which incorporates by reference (a) the prospectus
supplement for the DiscoverSeries Class [___] ([___]-[___]) notes dated as of [___] [___],
[___] filed pursuant to Rule 424(b) of the Securities Act of 1933], (b) the static pool
information regarding the historical performance of the Receivables for the accounts
contained on the internet website [xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx/xxxxxxx] and (c) the
other reports and documents incorporated by reference to the Tranche Term Sheet and (2) the
Pricing Information Schedule.]1
If, subsequent to the Time of Sale, it is determined that such information included an
untrue statement of material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading and the Underwriters have terminated their old purchase contracts and entered
into new purchase contracts with purchasers of the Notes, then “Time of Sale Information”
will also include any information that corrects such material misstatements or omissions,
together with any other information, to the extent it is made available to purchasers at the
time of entry into the last such new purchase contract such that “Time of Sale Information”
no longer includes an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (“Corrective Information”).
Underwriter Information
“Underwriter Information” shall mean the written information furnished to Discover Bank and
Discover Card Execution Note Trust by the Underwriters for use in the Prospectus and set
forth in the “blood letter” from the Underwriters to Discover Bank and Discover Card
Execution Note Trust dated the Time of Delivery.
Pricing Information Schedule:
A copy of the Pricing Term Sheet, dated as of [___] [___], [___], relating to the
Discover Card Execution Note Trust, DiscoverSeries Class [___]([___]) Notes (the
“Pricing Information Schedule”), a document prepared by Discover Bank and Discover
Card Execution Note Trust and filed as an issuer free writing prospectus that contains final
transaction terms for Discover Card Execution Note Trust, DiscoverSeries Class [___]([___])
Notes, is attached as Annex 2 hereto. The Underwriters shall have delivered the
information set forth on the Pricing Information Schedule to potential investors in the
Notes prior to entering into a purchase contract with the investor for the purchase of such
Notes.
Terms of Sale:
The purchase price for the Notes to the Underwriters will be
[___]% of the aggregate principal amount of the Notes.
The Underwriters will offer the Notes to the public at a price equal to
[___]% of the aggregate principal amount of the Notes.
| 1 | Prospectus supplement and prospectus may be filed separately as a free writing prospectus or a preliminary prospectus. |
Time of Delivery: 9:00 A.M., Chicago, Illinois Time, on [___] [___], [___], or at such
other time as may be agreed upon in writing.
Notwithstanding anything in the Agreement or in this Terms Agreement to the contrary, the
Agreement and this Terms Agreement constitute the entire agreement and understanding among the
parties hereto with respect to the purchase and sale of the Notes. This Terms Agreement may be
amended only by written agreement of the parties hereto.
| Very truly yours, | ||||||
| [UNDERWRITER] | ||||||
| As Representative of the | ||||||
| Underwriters named in | ||||||
| Schedule I hereto | ||||||
| By: | ||||||
Accepted:
DISCOVER CARD EXECUTION NOTE
TRUST, as Issuer
TRUST, as Issuer
By: Discover Bank, not in its individual
capacity but solely as Depositor on
behalf of the Issuer
capacity but solely as Depositor on
behalf of the Issuer
By:
DISCOVER BANK
By:
SCHEDULE I
UNDERWRITERS
$[___] Discover Card Execution Note Trust, DiscoverSeries Class [___]([___]) Notes
| Principal Amount | ||||
[_______________] |
$ | [____________]] | ||
[_______________] |
$ | [____________]] | ||
[_______________] |
$ | [____________]] | ||
[_______________] |
$ | [____________]] | ||
[_______________] |
$ | [____________]] | ||
[_______________] |
$ | [____________]] | ||
ANNEX 1
[TRANCHE TERM SHEET]
ANNEX 2
[PRICING INFORMATION SCHEDULE]
