Exhibit 4.1
EXECUTION VERSION
DISCOVER CARD EXECUTION NOTE
TRUST
Issuer
and
U.S. BANK NATIONAL
ASSOCIATION
Indenture Trustee
CLASS A(2008-C) TERMS
DOCUMENT
Dated as of August 28,
2008
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
Definitions and Other Provisions of General Application
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1
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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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6
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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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7
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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 The
Class A(2008-C) Notes
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8
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Section 2.01.
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Creation and
Designation
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8
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Section 2.02.
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Adjustments to
Required Subordinated Percentages and Amount
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8
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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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Payments of
Interest and Principal; Payments of Increased Costs
Amount
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9
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Section 2.05.
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[Reserved]
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9
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Section 2.06.
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Form of Class
A(2008-C) Notes; Legend; Transfer Restriction
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9
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Section 2.07.
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Delivery and
Payment for the Class A(2008-C) Notes
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10
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Section 2.08.
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Additional
Early Redemption Events
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10
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Section 2.09.
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Increases in
the Outstanding Dollar Principal Amount
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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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i
THIS CLASS A(2008-C) 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
August 28, 2008.
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 Note Purchase Agreement dated as of
August 28, 2008, by and among Discover Card Execution Note
Trust, Discover Bank, Salisbury Receivables Company LLC and
Sheffield Receivables Corporation, as purchasers, Barclays Bank
PLC, as committed purchaser and agent (as may be amended,
supplemented, restated, amended and restated or otherwise modified
from time to time, the “ Note Purchase Agreement
”), 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(2008-C) Notes;
(6) each capitalized term defined
herein shall relate only to the Class A(2008-C) 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.
“ Agent ” has the
meaning set forth in the Note Purchase Agreement.
“ Class A(2008-C) Adverse
Event ” means the occurrence of any of the following:
(a) an Early Redemption Event with respect to the Class
A(2008-C) Notes or (b) an Event of Default and acceleration of
the Class A(2008-C) 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(2008-C) Adverse Event shall not be treated
as continuing from and after the date of such cure.
“ Class A(2008-C) Note
” means any Note, in the form set forth in Exhibit A hereto,
designated therein as a Class A(2008-C) Note and duly executed and
authenticated in accordance with the Indenture.
“ Class A(2008-C)
Noteholder ” means a Person in whose name a Class
A(2008-C) Note is registered in the Note Register.
“ Class A(2008-C)
Termination Date ” means the earliest to occur of
(a) the Principal Payment Date on which the Outstanding Dollar
Principal Amount of the Class A(2008-C) 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.
“ Class A(2008-C) Tranche
Interest Allocation ” for the Class A(2008-C) Notes for
any Distribution Date means the Note Interest for the Class
A(2008-C) Notes.
“ Consent Date ”
has the meaning set forth in the Note Purchase
Agreement.
“ 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.
“ Existing Expected
Maturity Date ” has the meaning set forth in the Note
Purchase Agreement.
“ Existing Legal Maturity
Date ” has the meaning set forth in the Note Purchase
Agreement.
2
“ Existing Liquidation
Commencement Date ” has the meaning set forth in the Note
Purchase Agreement.
“ Existing Termination
Date ” has the meaning set forth in the Note Purchase
Agreement.
“ Expected Maturity
Date ” means August 17, 2009 or, if such date is
extended pursuant to the Note Purchase Agreement, the Existing
Expected Maturity Date.
“ Expected Principal
Payment Date ” means each Distribution Date commencing on
the earliest to occur of (i) the Distribution Date next
succeeding the failure of the parties to the Note Purchase
Agreement to extend any Existing Termination Date on or prior to
the applicable Consent Date pursuant to Section 2.10 of the
Note Purchase Agreement and (ii) the Expected Maturity
Date.
“ Increased Costs
Amount ” has the meaning set forth in the Note Purchase
Agreement.
“ 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 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 $0, or such higher amount as is specified
in any Notice of Additional Issuance under
Section 2.09.
“ 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(2008-C) 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
September 2008, or if such fifteenth day is not a Business Day, the
next succeeding Business Day.
“ Issuance Date ”
means August 28, 2008, with respect to all Class A(2008-C)
Notes issued on the date hereof and, with respect to any increase
in the Outstanding Dollar Principal Amount pursuant to
Section 2.09, any Issuance Date specified in the Notice of
Additional Issuance delivered thereunder.
“ Legal Maturity Date
” means February 15, 2012 or, if such date is extended
pursuant to the Note Purchase Agreement, the Existing Legal
Maturity Date.
“ Liquidation Amount
” means the Nominal Liquidation Amount of the Class A(2008-C)
Notes.
3
“ Liquidation Commencement
Date ” means the date that is the earliest to occur of
(i) the Distribution Date next succeeding the failure of the
parties to the Note Purchase Agreement to extend any Existing
Termination Date (whether by notice or by the failure to deliver
notice on or prior to the applicable Consent Date) pursuant to
Section 2.10 of the Note Purchase Agreement and (ii) the
Existing Liquidation Commencement Date.
“ Liquidation Period
” for these Class A(2008-C) Notes means, unless an Early
Redemption Event or an Event of Default for these Class A(2008-C)
Notes shall have occurred prior thereto, the period commencing on
the Liquidation Commencement Date and ending on the earlier to
occur of (x) the payment in full of the Outstanding Dollar
Principal Amount of these Class A(2008-C) Notes or (y) the
occurrence of an Early Redemption Event or an Event of Default for
these Class A(2008-C) Notes; provided , however ,
that if an Excess Spread Early Redemption Cure has occurred with
respect to any Excess Spread Early Redemption Event for these Class
A(2008-C) Notes prior to the commencement of the Liquidation Period
for these Class A(2008-C) Notes (and no other Early Redemption
Event or Event of Default for these Class A(2008-C) Notes has
occurred), the Liquidation Period for these Class A(2008-C) Notes
shall be determined as if such Excess Spread Early Redemption Event
had not occurred, and if the Liquidation Period has terminated in
accordance with clause (y), the Liquidation Period for these Class
A(2008-C) Notes shall resume and shall continue until the earlier
to occur of (x) the payment in full of the Outstanding Dollar
Principal Amount of these Class A(2008-C) Notes or (y) the
occurrence of a subsequent Early Redemption Event or Event of
Default.
“ Note Interest ”
for these Class A(2008-C) Notes has the meaning set forth in the
Note Purchase Agreement.
“ Note Interest Rate
” for these Class A(2008-C) Notes has the meaning set forth
in the Note Purchase Agreement; for the avoidance of doubt the Note
Interest Rate shall be calculated in accordance with the
calculation basis set forth in the Note Purchase
Agreement.
“ Notice of Additional
Issuance ” has the meaning set forth in
Section 2.09.
“ Principal Payment
Date ” means, for the Class A(2008-C) Notes, each
Expected Principal Payment Date, or upon the acceleration of such
Notes following an Event of Default or upon the occurrence and
during the continuance of an Early Redemption Event (unless all
such events have been cured), each Distribution Date and the Legal
Maturity Date, or in the event of a cleanup call, the date of
redemption in accordance with Section 1202 of the
Indenture.
“ Required Daily Deposit
Target Finance Charge Amount ” means, for any day in a
Due Period, an amount equal to the Class A(2008-C) Tranche Interest
Allocation for the related Distribution Date; provided,
however, that for purposes of determining the Required Daily
Deposit Target Finance Charge Amount on any day on which the Class
A(2008-C) Tranche Interest Allocation cannot be determined because
the Note Interest Rate for the applicable Interest Accrual Period
has not yet been notified to the Calculation Agent and the
Indenture Trustee in accordance with the Note Purchase Agreement,
the Required Daily Deposit Target Finance Charge Amount shall be
the Class A(2008-C) Tranche Interest Allocation determined based on
a pro forma calculation made on the assumption that the Note
Interest Rate will be equal to the sum of (i) the Note
Interest Rate, excluding any applicable margin, for the
prior
4
Interest Accrual Period and applicable to the
Interest Payment Date occurring in such Due Period, multiplied
by 1.25 and (ii) any applicable margin; provided ,
further , that for purposes of determining the Required
Daily Deposit Target Finance Charge Amount for any day in the Due
Period preceding the first Interest Payment Date on which the
Outstanding Dollar Principal Amount of the Class A(2008-C) Notes is
greater than zero, if the Class A(2008-C) Tranche Interest
Allocation cannot be determined because the Note Interest Rate for
such first Interest Accrual Period has not yet been notified to the
Calculation Agent and the Indenture Trustee in accordance with the
Note Purchase Agreement, a rate equal to the rate provided by the
Agent, based on the Agent’s good faith estimate of the
anticipated Note Interest Rate for such first Interest Accrual
Period, to the Indenture Trustee and Calculation Agent on the date
of effectiveness of such first increase in the Outstanding Dollar
Principal Amount of the Class A(2008-C) Notes shall be used in lieu
of the Note Interest Rate.
“ Required Daily Deposit
Target Principal Amount ” means, for any day in a Due
Period, (i) if such Du