EXHIBIT 4.1
EXECUTION VERSION
DISCOVER CARD EXECUTION NOTE
TRUST
Issuer
and
U.S. BANK NATIONAL
ASSOCIATION
Indenture Trustee
CLASS A(2009-2) TERMS
DOCUMENT
Dated as of September 11,
2009
to
INDENTURE SUPPLEMENT
Dated as of July 26,
2007
for the DiscoverSeries
Notes
to
INDENTURE
Dated as of July 26,
2007
TABLE OF CONTENTS
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Page
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ARTICLE I
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Definitions and Other Provisions of
General Application
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Section 1.01
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Definitions
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1
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Section 1.02
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Representations and Warranties of
Issuer
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7
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Section 1.03
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Representations and Warranties of Indenture
Trustee
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7
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Section 1.04
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Limitations
on Liability
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8
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Section 1.05
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Governing
Law
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8
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Section 1.06
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Counterparts
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8
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Section 1.07
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Ratification
of Indenture and Indenture Supplement
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8
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ARTICLE II
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The Class A(2009-2) Notes
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Section 2.01
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Creation and
Designation
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9
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Section 2.02
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Adjustments
to Required Subordinated Percentages and Amount
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9
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Section 2.03
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Interest
Payment
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9
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Section 2.04
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Notification
of LIBOR
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10
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Section 2.05
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Payments of
Interest and Principal
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10
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Section 2.06
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Form of
Delivery of Class A(2009-2) Notes; Depository;
Denominations
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10
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Section 2.07
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Delivery and
Payment for the Class A(2009-2) Notes
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10
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Section 2.08
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Targeted
Deposits to the Accumulation Reserve Account
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10
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Section 2.09
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Additional
Issuances of Notes
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11
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Section 2.10
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Variable
Accumulation Period
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11
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Exhibit
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Exhibit A
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Form of Class A
Note
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THIS CLASS A(2009-2) TERMS DOCUMENT
(this “ Terms Document ”), by and between
DISCOVER CARD EXECUTION NOTE TRUST, a statutory trust created under
the laws of the State of Delaware (the “ Issuer
”), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United
States of America, as Indenture Trustee (the “ Indenture
Trustee ”), is made and entered into as of
September 11, 2009.
Pursuant to this Terms Document, the
Issuer shall create a new Tranche of Class A Notes of the
DiscoverSeries and shall specify the principal terms
thereof.
ARTICLE I
Definitions and Other Provisions of
General Application
Section 1.01 Definitions .
For all purposes of this Terms Document, except as otherwise
expressly provided or unless the context otherwise
requires:
(1) the terms defined in this
Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;
(2) all other terms used herein
which are defined in the Indenture Supplement or the Indenture,
either directly or by reference therein, have the meanings assigned
to them therein;
(3) all accounting terms not
otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles and,
except as otherwise herein expressly provided, the term
“generally accepted accounting principles” with respect
to any computation required or permitted hereunder means such
accounting principles as are generally accepted in the United
States of America at the date of such computation;
(4) all references in this Terms
Document to designated “Articles,”
“Sections” and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Terms Document;
The words “herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Terms Document as a whole and not to any particular Article,
Section or other subdivision;
(5) in the event that any term or
provision contained herein shall conflict with or be inconsistent
with any term or provision contained in the Indenture Supplement or
the Indenture, the terms and provisions of this Terms Document
shall be controlling, but solely with respect to the Class
A(2009-2) Notes;
(6) each capitalized term defined
herein shall relate only to the Class A(2009-2) Notes and no other
Tranche of Notes issued by the Issuer;
(7) “including” and
words of similar import will be deemed to be followed by
“without limitation”; and
(8) for purposes of determining any
amount or making any calculation hereunder, such amount or
calculation, (x) if specified to be as of the first day of any
Due Period, shall (a)
include any Notes issued during such Due Period
as if such Notes had been outstanding on the first day of such Due
Period and (b) give effect to any payments, deposits or other
allocations made on the Distribution Date related to the prior Due
Period, and (y) if specified to be as of the close of business
on the last day of any Due Period shall give effect to any
payments, deposits or other allocations made on the related
Distribution Date.
“ Accumulation Amount
” means $108,333,333.34; provided , however ,
if the commencement of the Accumulation Period is delayed in
accordance with Section 2.10 hereof, the Accumulation Amount
shall be determined in accordance with the definition of
“Accumulation Amount” in the Indenture
Supplement.
“ Accumulation Commencement
Date ” means August 1, 2011, or such later date as
the Calculation Agent on behalf of the Issuer determines in
accordance with Section 2.10 hereof.
“ Accumulation Period
” has the meaning set forth in the Indenture
Supplement.
“ Accumulation Period
Length ” means 12 months; provided ,
however , if the commencement of the Accumulation Period is
delayed in accordance with Section 2.10 hereof, the
Accumulation Period Length shall be determined in accordance with
the definition of “Accumulation Period Length” in the
Indenture Supplement.
“ Accumulation Reserve
Funding Period ” shall not apply if the Calculation Agent
on behalf of the Issuer notifies the Indenture Trustee that it
expects the Accumulation Period Length to be adjusted to one
(1) month, and otherwise shall mean a period commencing on the
first Distribution Date on which a condition in the right column of
the following table was in effect on the immediately preceding
Distribution Date, if the Distribution Date is a Distribution Date
described in the corresponding left column of the following table,
and ending on the Distribution Date immediately preceding the
earlier to occur of:
(x) the Expected Maturity Date for
the Class A(2009-2) Notes and
(y) the Principal Payment Date on
which the Outstanding Dollar Principal Amount of the Class
A(2009-2) Notes is paid in full.
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(a) The
Distribution Date occurring three (3) calendar months prior to
the first scheduled Distribution Date of the Accumulation Period
(as adjusted in accordance with Section 2.10 hereof) and any
following Distribution Date
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No
condition.
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(b) The
Distribution Date occurring four (4) calendar months prior to
the first scheduled Distribution Date of the Accumulation Period
(as adjusted in accordance with Section 2.10 hereof) and any
following Distribution Date
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The three-month
rolling average Excess Spread Percentage is less than
4%.
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2
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(c) The
Distribution Date occurring six (6) calendar months prior to the
first scheduled Distribution Date of the Accumulation Period (as
adjusted in accordance with Section 2.10 hereof) and any following
Distribution Date
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The three-month
rolling average Excess Spread Percentage is less than
3%.
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(D) The
Distribution Date occurring twelve (12) calendar months prior
to the first scheduled Distribution Date of the Accumulation Period
(as adjusted in accordance with Section 2.10 hereof) and any
following Distribution Date
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The three-month
rolling average Excess Spread Percentage is less than
2%.
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provided, however,
if at any point the Accumulation
Reserve Funding Period has not commenced because no condition
requiring funding has occurred or the Calculation Agent has
determined that the Accumulation Period Length will be shortened to
one (1) month, and subsequently a condition requiring funding
occurs and the Calculation Agent determines that the Accumulation
Period Length will not be so shortened, the Accumulation Reserve
Funding Period shall commence on the following Distribution
Date.
“ Class A(2009-2) Adverse
Event ” means the occurrence of any of the following:
(a) an Early Redemption Event with respect to the Class
A(2009-2) Notes or (b) an Event of Default and acceleration of
the Class A(2009-2) Notes; provided , however , that
if the only such event to have occurred is an Excess Spread Early
Redemption Event for which an Excess Spread Early Redemption Cure
has occurred, a Class A(2009-2) Adverse Event shall not be treated
as continuing from and after the date of such cure.
“ Class A(2009-2) Note
” means any Note, in the form set forth in Exhibit A hereto,
designated therein as a Class A(2009-2) Note and duly executed and
authenticated in accordance with the Indenture.
“ Class A(2009-2)
Noteholder ” means a Person in whose name a Class
A(2009-2) Note is registered in the Note Register.
“ Class A(2009-2)
Termination Date ” means the earliest to occur of
(a) the Principal Payment Date on which the Outstanding Dollar
Principal Amount of the Class A(2009-2) Notes is paid in full,
(b) the Legal Maturity Date and (c) the date on which the
Indenture is discharged and satisfied pursuant to Article VI
thereof.
“ Excess Spread
Percentage ” for any Distribution Date means a fraction,
the numerator of which is the Excess Spread Amount for such
Distribution Date multiplied by 12 and the denominator of
which is the sum of the Nominal Liquidation Amounts of all Tranches
of DiscoverSeries Notes as of the first day of the related Due
Period.
“ Expected Maturity
Date ” means August 15, 2012.
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“ Indenture ”
means the Indenture dated as of July 26, 2007 between the
Issuer and Indenture Trustee, as the same may be amended,
supplemented, restated, amended and restated, replaced or otherwise
modified from time to time.
“ Indenture Supplement
” means the Indenture Supplement dated as of July 26,
2007, as amended by the Omnibus Amendment dated as of July 2,
2009, for the DiscoverSeries Notes, by and between the Issuer and
the Indenture Trustee, as the same may be amended, supplemented,
restated, amended and restated, replaced or otherwise modified from
time to time.
“ Initial Dollar Principal
Amount ” means $1,300,000,000, or such higher amount as
is specified in any Notice of Additional Issuance under
Section 2.09 hereof.
“ Interest Accrual
Period ” means, with respect to any Interest Payment
Date, the period from and including the previous Interest Payment
Date (or, in the case of the first Interest Payment Date for any
Class A(2009-2) Note, from and including the applicable Issuance
Date) to but excluding such Interest Payment Date.
“ Interest Payment Date
” means the fifteenth day of each month commencing in October
2009, or if such fifteenth day is not a Business Day, the next
succeeding Business Day.
“ Issuance Date ”
means September 11, 2009 with respect to all Class A(2009-2)
Notes issued on the date hereof and, with respect to any additional
Class A(2009-2) Notes issued pursuant to Section 2.09 hereof,
any Issuance Date specified in the Notice of Additional Issuance
delivered thereunder.
“ Legal Maturity Date
” means February 17, 2015.
“ LIBOR ” means,
with respect to any LIBOR Determination Date, the rate for deposits
in United States dollars with a duration comparable to the relevant
Interest Accrual Period which appears on Reuters Screen LIBOR01 as
of 11:00 a.m., London time, on such day. If such rate does not
appear on Reuters Screen LIBOR01, the rate will be determined by
the Indenture Trustee on the basis of the rates at which deposits
in United States dollars are offered by major banks in the London
interbank market, selected by the Indenture Trustee, at
approximately 11:00 a.m., London time, on such day to prime banks
in the London interbank market with a duration comparable to the
relevant Interest Accrual Period commencing on that day. The
Indenture Trustee will request the principal London office of at
least four banks to provide a quotation of its rate. If at least
two such quotations are provided, the rate will be the arithmetic
mean of the quotations. If fewer than two quotations are provided
as requested, the rate for that day will be the arithmetic mean of
the rates quoted by four major banks in New York City, selected by
the Trustee, at approximately 11:00 a.m., New York City time, on
that day for loans in United States dollars to leading European
banks with a duration comparable to the relevant Interest Accrual
Period commencing on that day. If LIBOR with respect to a LIBOR
Determination Date is not determined pursuant to the foregoing,
LIBOR with respect to such LIBOR Determination Date will be LIBOR
with respect to the immediately prior LIBOR Determination
Date.
“ LIBOR Business Day
,” if applicable, shall mean a day other than a Saturday or a
Sunday on which banking institutions in both the City of London,
England and in New York, New York are not required or authorized by
law to be closed.
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“ LIBOR Determination
Date ” means the second LIBOR Business Day immediately
preceding the commencement of an Interest Accrual
Period.
“ Note Interest Rate
” means LIBOR + 1.30% per annum, calculated on the basis
of the actual number of days elapsed and a 360-day year.
“ Notice