DISCOVER BANK
Master Servicer, Servicer and Seller
U.S. BANK NATIONAL ASSOCIATION
Trustee
on behalf of the
Certificateholders
SECOND AMENDMENT TO AMENDED AND
RESTATED
POOLING AND SERVICING AGREEMENT
dated as of November 3, 2004
DISCOVER CARD MASTER TRUST
I
Dated as of
March 30, 2006
This
SECOND AMENDMENT TO AMENDED AND RESTATED POOLING AND SERVICING
AGREEMENT (this “ Amendment ”), dated as of
March 30, 2006, is entered into by and between DISCOVER BANK,
a Delaware banking corporation (formerly Greenwood Trust Company),
as Master Servicer, Servicer and Seller (“ Discover
Bank ”) and U.S. BANK NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the
United States of America (formerly First Bank National Association,
successor trustee to Bank of America Illinois, formerly Continental
Bank, National Association), as Trustee (the “ Trustee
”).
WHEREAS,
Discover Bank and the Trustee entered into that certain Pooling and
Servicing Agreement dated as of October 1, 1993, as amended,
which was restated in its entirety by that certain Amended and
Restated Pooling and Servicing Agreement, dated as of
November 3, 2004, by and between Discover Bank and the
Trustee, relating to Discover Card Master Trust I, as amended by
that certain First Amendment to Amended and Restated Pooling and
Servicing Agreement and Global Amendment to Certain
Series Supplements thereto, dated as of January 4, 2006
(as amended, the “ Agreement ”); and
WHEREAS,
pursuant to Sections 13.01(a)(i) and (ii) of the
Agreement, Discover Bank and the Trustee desire to amend
Sections 1.01, 3.02, 3.07 and 3.08 of the Agreement and to add
a new Article XIV to the Agreement, in a manner that shall not
adversely affect in any material respect the interests of the
Holders of any Class of any Series currently outstanding, in order
to (a) clarify the authority of Discover Bank, as Servicer, to
commence collections actions on behalf of the Trust in its own name
and (b) establish internal mechanisms to support the
Trust’s compliance with Regulation AB (defined
below).
NOW,
THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, each party agrees as follows for the
benefit of the other parties and for the benefit of the
Certificateholders:
1.
Definitions . Unless otherwise specified, capitalized terms
used in this Amendment shall have the same meanings ascribed to
them in the Agreement.
2.
Amendments to the Agreement . Effective as of the date
hereof:
(A) Article I,
Section 1.01 (“Definitions”) of the Agreement is
amended by adding the following terms, in alphabetical order
therein:
"
Commission ” shall mean the United States Securities
and Exchange Commission.
"
Exchange Act ” shall mean the Securities Act of 1934,
as amended.
"
Regulation AB ” shall mean Subpart 229.1100
— Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its
staff from time to time.
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"
Sarbanes Certification ” shall have the meaning
specified in Section 14.04(c).
"
Securities Act ” shall mean the Securities Act of
1933, as amended.
"
Securitization Transaction ” shall mean any New
Issuance, whether publicly offered or privately placed, rated or
unrated.
"
Servicing Criteria ” shall mean the “servicing
criteria” set forth in Item 1122(d) of Regulation AB, as
such may be amended from time to time.
"
Servicing Participant ” shall mean any Person who is
responsible for any Servicing Criteria and who is required pursuant
to Item 1122(d) of Regulation AB to provide an assessment of
compliance therefore. For the avoidance of doubt, the term
“Servicing Participant” shall not include the Trustee,
the Master Servicer or Discover Bank, as Servicer, as
Regulation AB compliance matters with respect to such entities
are independently addressed in this Agreement.
(B) Article III,
Section 3.02 (“Acceptance of Appointment and Other
Matters Relating to Servicers”) of the Agreement is amended
by adding to clause (ii) of the penultimate sentence of
subsection 3.02(b), immediately following the phrase “to
commence collection proceedings with respect to such
Receivables”, the following: “on behalf of the Trust
for the benefit of the Certificateholders but in its own name,
without reference to the fact that it is acting for the
Trust”.
(C) Article III,
Section 3.07 (“Master Servicer’s and
Servicers’ Annual Certificates”) of the Agreement is
amended by adding the following paragraph as a new subsection
(c) of Section 3.07:
"(c)
Master Servicer’s and Servicers’ Annual Compliance
Statement . On or before the Trust’s Annual Report Date
of each calendar year (and relating to the preceding fiscal year
ending on November 30), the Master Servicer and each Servicer
will deliver, and the Master Servicer or the applicable Servicer
shall cause each affiliated Servicing Participant and each
unaffiliated Servicing Participant that services 10% or more of the
Receivables to deliver, to the Trustee, Discover Bank on behalf of
the Holder of the Seller Certificate and the Rating Agencies, an
Officer’s Certificate necessary to comply with Item 1123
of Regulation AB in substantially the form (with appropriate
insertions) of Exhibit J hereto; provided ,
however , that with respect to the fiscal year ending
November 30, 2006, such certificate may exclude the period of
December 1, 2005 through and including December 31, 2005.
A copy of such certificate may be obtained by any Investor
Certificateholder by a request in writing to the Trustee addressed
to the Corporate Trust Office.”
(D) Article III,
Section 3.08 (“Independent Public Accountants’
Annual Servicing Report”) is amended by deleting the last two
sentences of the paragraph under subsection (a) and by adding
the following paragraph as a new subsection (c) of
Section 3.08:
"(c)
On or before the Trust’s Annual Report Date of each calendar
year (and relating to the preceding fiscal year ending on
November 30), the Master Servicer shall cause a firm of
nationally recognized independent public accountants (who may also
render other
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services to the
Master Servicer, any Servicer or any Seller) to furnish to the
Trustee, the Master Servicer and the Rating Agencies each
attestation report on assessments of compliance with the Servicing
Criteria furnished by such accountants pursuant to
Sections 14.04 and 14.05 of this Agreement.”
(E) The
Pooling and Servicing Agreement is hereby amended by adding the
following new Article XIV after Article XIII of the Pooling
and Servicing Agreement:
ARTICLE XIV
COMPLIANCE WITH REGULATION AB
SECTION
14.01 Intent of the Parties; Reasonableness . Discover Bank
on behalf of the Holder of the Seller Certificate, the Master
Servicer, the Servicer and the Trustee acknowledge and agree that
the purpose of this Article XIV is to facilitate compliance by
the Seller with the provisions of Regulation AB and related
rules and regulations of the Commission. Neither the Master
Servicer nor any Seller shall exercise its right to request
delivery of information or other performance under these provisions
other than in good faith, or for purposes other than such Master
Servicer or Seller’s compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure
comparable to that required under the Securities Act). The Trustee
agrees to cooperate in good faith with any reasonable request by
the Master Servicer or any Seller for information regarding the
Trustee which is required in order to enable such Master Servicer
or Seller to comply with the provisions of Regulation AB as it
relates to the Trustee or to the Trustee’s obligations under
this Agreement or any Series Supplement, provided that such
information is available to the Trustee without unreasonable
expense or effort and within the timeframe as is reasonably
requested. The Master Servicer and each Servicer agrees to
cooperate in good faith with any reasonable request by the Master
Servicer or any Seller for information regarding the Master
Servicer or such Servicer (or any Servicing Participant that it
engages) which is required in order to enable such Master Servicer
or Seller to comply with the provisions of Regulation AB as it
relates to the Master Servicer or such Servicer or to the Master
Servicer or such Servicer’s obligations under this Agreement
or any Series Supplement or the obligations of any Servicing
Participant that it engages under any servicing or subservicing
agreement to the extent related to servicing the Receivables,
provided that such information is available to the Master Servicer
and each Servicer without unreasonable expense or effort and within
the timeframe as is reasonably requested. Terms used in this
Article XIV that are defined in Regulation AB but are not
defined in Section 1.01 of this Agreement shall have the
meanings ascribed to them in Regulation AB.
SECTION
14.02 Additional Representations and Warranties of the
Trustee . The Trustee shall be deemed to represent to the
Master Servicer and Discover Bank on behalf of the Holder of the
Seller Certificate, as of the date on which information is provided
under Section 14.03 that, except as disclosed in writing to
the Master Servicer and Discover Bank on behalf of the Holder of
the Seller Certificate prior to such date to the best of its
knowledge: (i) neither the execution, delivery and performance
by the Trustee of this Agreement or any Series Supplement, the
performance by the Trustee of its obligations under this Agreement
or any Series Supplement nor the consummation of any of the
transactions by the Trustee contemplated thereby, is in violation
of any indenture, mortgage, bank credit agreement, note
or
3
bond purchase
agreement, long-term lease, license or other agreement or
instrument to which the Trustee is a party or by which it is bound,
which violation would have a material adverse effect on the
Trustee’s ability to perform its obligations under this
Agreement or any Series Supplement, or of any judgment or
order applicable to the Trustee; and (ii) there are no
proceedings pending or threatened against the Trustee in any court
or before any governmental authority, agency or arbitration board
or tribunal which, individually or in the aggregate, would have a
material adverse effect on the right, power and authority of the
Trustee to enter into this Agreement or any Series Supplement
or to perform its obligations under this Agreement or any
Series Supplement.
SECTION
14.03 Information to be Provided by the Trustee .
(a) The
Trustee shall (i) on or before the fifth Business Day of each
month, provide to the Master Servicer and Discover Bank on behalf
of the Holder of the Seller Certificate, in writing, such
information regarding the Trustee as is requested for the purpose
of compliance with Item 1117 of Regulation AB, including
but not limited to a letter addressed to Discover Bank in
substantially the form (with appropriate insertions) of
Exhibit K hereto, and (ii) as promptly as practicable
following notice to or discovery by the Trustee of any changes to
such information, provide to the Master Servicer and Discover Bank
on behalf of the Holder of the Seller Certificate, in writing, such
updated information.
(b) The
Trustee shall (i) in connection with any Securitization
Transaction which requires a prospectus, prospectus supplement,
offering memorandum or related documents, provide to the Master
Servicer and Discover Bank on behalf of the Holder of the Seller
Certificate such information regarding the Trustee as is requested
and within the timeframe as is reasonably requested for the purpose
of compliance with Items 1103(a)(1), 1109(a), 1109(b), 1118 and
1119 of Regulation AB, and (ii) as promptly as
practicable following notice to or discovery by the Trustee of any
material changes to such previously provided information or to the
business operations of the Trustee, provide to the Master Servicer
and Discover Bank on behalf of the Holder of the Seller
Certificate, in writing, such updated information, and such other
information as may be reasonably requested for purposes of
satisfying Exchange Act reporting obligations of the Trust. Such
information to be provided under clause (i) of this paragraph
shall include, at a minimum:
(i)
the Trustee’s name and form of organization;
(ii)
a description of the extent to which the Trustee has had prior
experience serving as a trustee for asset-backed securities
transactions involving credit card receivables;
(iii)
a description of any affiliation between the Trustee and any of the
following parties to such Securitization Transaction, as such
parties are identified to the Trustee by the Sellers in writing in
advance of such Securitization Transaction:
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(G) any
significant obligor;
(H) any
enhancement or support provider; and
(I) any
other material transaction party.
In connection
with the above-listed parties, a description of whether there is,
and if so the general character of, any business relationship,
agreement, arrangement, transaction or understanding that is
entered into outside the ordinary course of business or is on terms
other than would be obtained in an arm’s length transaction
with an unrelated third party, apart from such Securitization
Transaction, the Agreement and any Series Supplement that
currently exists or that existed during the past two years, and
that is material to an investor’s understanding of the
Investor Certificates.
SECTION
14.04 Trustee’s Report on Assessment of Compliance and
Attestation . On or before the date that is fifteen days prior
to the Trust’s Annual Report Date, or such other date that is
mutually agreed upon in writing by the parties hereto, of each
calendar year (and relating to the preceding fiscal year ending on
November 30), the Trustee shall:
(a) deliver
to the Master Servicer and Discover Bank on behalf of the Holder of
the Seller Certificate a report regarding the Trustee’s
assessment of compliance with the Servicing Criteria during the
immediately preceding fiscal year, as required under
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122
of Regulation AB. Such report shall be addressed to the Master
Servicer and Discover Bank on behalf of the Holder of the Seller
Certi
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