Collateral Certificate Transfer Agreement
Exhibit 4.4
Execution Copy
THIS COLLATERAL CERTIFICATE TRANSFER AGREEMENT (this “Agreement”), by and between
DISCOVER BANK, a Delaware banking corporation, as Depositor (“Discover Bank”), and DISCOVER
CARD EXECUTION NOTE TRUST (the “Note Issuance Trust”) is made and entered into as of July
26, 2007.
All terms used herein which are defined in the Trust Agreement dated as of July 2, 2007
between Discover Bank and Wilmington Trust Company, as owner trustee (the “Owner Trustee”),
the Indenture dated as of July 26, 2007 between the Note Issuance Trust and U.S. Bank National
Association in its capacity as Indenture Trustee (the “Indenture Trustee”) or the Indenture
Supplement for the DiscoverSeries Notes (the “Indenture Supplement”) dated as of July 26,
2007 between the Note Issuance Trust and the Indenture Trustee, each as may be amended, restated,
amended and restated, supplemented, replaced or otherwise modified from time to time, either
directly or by reference therein, have the meanings assigned to them therein.
Section 1. Transfer and Consideration. In consideration of the Note Issuance Trust’s
payment to Discover Bank of the net proceeds of the initial sale of Notes, Discover Bank does
hereby transfer, assign, set over, pledge and otherwise convey to the Note Issuance Trust, without
recourse (subject to the obligations herein), all right, title and interest of Discover Bank in and
to the Series 2007-CC Collateral Certificate and the proceeds thereof. The Series 2007-CC
Collateral Certificate is issued by the Discover Card Master Trust I (the “Master Trust”)
pursuant to the Amended and Restated Pooling and Servicing Agreement, as amended (the “Amended
and Restated Pooling and Servicing Agreement”) dated as of November 3, 2004 between Discover
Bank and U.S. Bank National Association and the Series 2007-CC Supplement (the “Series
Supplement”) thereto as of July 26, 2007 between Discover Bank and U.S. Bank National
Association. The parties to this Agreement intend that the conveyance of the Series 2007-CC
Collateral Certificate and the proceeds thereof pursuant to this Agreement constitute a sale, and
not a secured borrowing, for accounting purposes. If, notwithstanding such intention, the
conveyance of the Series 2007-CC Collateral Certificate from Discover Bank to the Note Issuance
Trust shall ever be characterized as a secured loan and not a sale, this Agreement shall be deemed
to constitute a security agreement within the meaning of the UCC, and the conveyance by Discover
Bank provided for in this Agreement shall be deemed to be a grant by Discover Bank to the Note
Issuance Trust of a security interest in and to all of Discover Bank’s right, title and interest,
whether now owned or hereafter acquired, in, to and under the Series 2007-CC Collateral
Certificate, all accounts, general intangibles, chattel paper, instruments, documents, goods,
money, investment property, deposit accounts, letters of credit and letter-of-credit rights
consisting of, arising from, or relating to the Series 2007-CC Collateral Certificate, and the
proceeds thereof, to secure the obligations of Discover Bank hereunder.
Section 2. Acceptance by the Note Issuance Trust. The Note Issuance Trust hereby
acknowledges its acceptance of all right, title and interest to the property, now existing and
hereafter created, conveyed to the Note Issuance Trust pursuant to Section 1.
Section 3. Closing. The transfer, assignment, set over, pledge and conveyance of the
Series 2007-CC Collateral Certificate shall take place at the offices of Xxxxxx & Xxxxxxx LLP,
Xxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 on July 26, 2007; provided, however, that physical
delivery of the Series 2007-CC Collateral Certificate to the Note Issuance Trust shall occur in the
State of New York.
Section 4. Allocations. All allocations with respect to the Series 2007-CC
Collateral Certificate shall be made in accordance with the terms of the Series Supplement and the
Pooling and Servicing Agreement. All reinvestments of Principal Amounts by the Note Issuance Trust
in the Series 2007-CC Collateral Certificate will be made in accordance with the Indenture, each
Indenture Supplement thereto and the Series Supplement, as applicable.
Section 5. Increases in the Series Investor Interest of the Series 2007-CC Collateral
Certificate. If the Calculation Agent on behalf of the Note Issuance Trust requests a transfer
of an additional fractional undivided interest in the assets of the Master Trust as represented by
an increase in the Series Investor Interest of the Series 2007-CC Collateral Certificate pursuant
to Section 19 of the Series Supplement in connection with any issuance of notes under the
Indenture and an Indenture Supplement, and such additional fractional undivided interest in such
assets is transferred in the form an increase in the Series Investor Interest of the Series 2007-CC
Collateral Certificate, the Note Issuance Trust shall pay to Discover Bank the proceeds from the
issuance of notes (net of underwriting discounts and commissions and any other offering expenses
paid by the Note Issuance Trust, and the amount of deposits into certain reserve accounts required
under Section 2.03 of the Indenture Supplement for the DiscoverSeries Notes or any similar
provision of another Indenture Supplement) in exchange for such transfer.
Section 6. Limitation on Liability.
(a) It is expressly understood and agreed by the parties hereto that (i) this Agreement is
executed and delivered by the Owner Trustee not individually or personally but solely as Owner
Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested
in it, (ii) each of the representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking or agreement by the Owner
Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein
contained will be construed as creating any liability on the Owner Trustee individually or
personally, to perform any covenant of the Issuer either expressed or implied herein, all such
liability, if any, being expressly waived by the parties to this Agreement and by any Person
claiming by, through or under them and (iv) under no circumstances will the Owner Trustee be
personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for
the breach or failure of any obligation, representation, warranty or covenant made or undertaken by
the Issuer under this Agreement or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee, the Calculation Agent, any Beneficiary,
the Depositor, any Master Servicer or any Servicer or any of their respective officers, directors,
employees, incorporators or agents will have any liability with respect to this Agreement, and
recourse may be had solely to the Collateral pledged to secure the DiscoverSeries Notes under the
Indenture and the Indenture Supplement.
Section 7. Governing Law; Exclusive Forum. THIS COLLATERAL CERTIFICATE TRANSFER
AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
INCLUDING
2
SECTION 5-1401 OF THE GENERAL OBLIGATION LAW, WITHOUT REFERENCE TO ANY CONFLICT OF LAW
PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER STATE; PROVIDED, HOWEVER,
THAT THE PARTIES AGREE THAT THE DELAWARE ASSET-BACKED SECURITIES FACILITATION ACT SHALL GOVERN ANY
SECURITY INTEREST GRANTED UNDER SECTION 1 HEREOF. EACH OF DISCOVER BANK AND THE NOTE ISSUANCE TRUST
HEREBY IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL OR EQUITABLE ACTION OR PROCEEDING BROUGHT BY
IT ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE POOLING AND SERVICING AGREEMENT, THE
SERIES 2007-CC COLLATERAL CERTIFICATE, THE NOTES OR THE INDENTURE SHALL BE BROUGHT EXCLUSIVELY IN
ANY FEDERAL OR STATE COURT IN THE STATE OF DELAWARE, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT
TO ASSERT IN ANY ACTION OR PROCEEDING BROUGHT AGAINST DISCOVER BANK OR THE NOTE ISSUANCE TRUST, ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT.
Section 8. Election Under Delaware Asset-Backed Securities Facilitation Act. The
parties hereto agree that (a) the transactions contemplated hereby constitute a “securitization
transaction” and (b) to the fullest extent permitted under applicable law, including without
limitation, the Asset-Backed Securities Facilitation Act Delaware Code Xxx. tit. 6, § 2701A et seq:
(1) all right, title and interest in and to the Series 2007-CC Collateral Certificate and the
proceeds thereof, whether now existing or hereafter acquired (the “Collateral Certificate
Interests”), which have been transferred to the Note Issuance Trust in connection with the
securitization transactions contemplated herein, shall be deemed to no longer be the property,
assets or rights of Discover Bank; (2) Discover Bank, its creditors or, in any insolvency
proceeding with respect to Discover Bank or Discover Bank’s property, a bankruptcy trustee,
receiver, debtor, debtor in possession or similar person, shall have no rights, legal or equitable,
whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem or recharacterize as
property of the Seller any of the Collateral Certificate Interests; and (3) in the event of a
bankruptcy, receivership or other insolvency proceeding with respect to Discover Bank or Discover
Bank’s property, such Collateral Certificate Interests shall not be deemed to be part of Discover
Bank’s property, assets, rights or estate.
[Remainder of page intentionally blank; signature page follows]
3
The parties hereto have each caused this Agreement to be duly executed, by their
representative officers hereunder duly authorized all as of the day and year first above written.
| DISCOVER BANK | DISCOVER CARD EXECUTION NOTE TRUST | |||||
| By: | Wilmington Trust Company, | |||||
| not in its individual capacity but solely as Owner Trustee |
||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxx | By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | Name: Xxxxxxxx X. Xxxx | |||||
| Title: Vice President, Chief Financial Officer and Treasurer | Title: Sr. Financial Services Officer | |||||
Collateral Certificate Transfer Agreement Signature Page
