Exhibit 1.1
EXECUTION COPY
DISCOVER CARD EXECUTION NOTE TRUST
(Issuer)
DISCOVER BANK
(Depositor)
Underwriting Agreement
(Standard Terms)
July 20, 2007
MORGAN
STANLEY & CO. INCORPORATED
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
as Underwriter and as a Representative
of the Underwriters named in Schedule I to the Terms
Agreement
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, to be dated as of
July 26, 2007, as supplemented by the Indenture Supplement, to
be dated as of July 26, 2007, and a Terms Document having the
date stated in the applicable Terms Agreement (as so 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 July 2, 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 ”) transferred
to the Issuer pursuant to the Collateral Certificate Transfer
Agreement, to be dated as of July 26, 2007, by and between the
Issuer and Discover Bank.
Discover Bank has conveyed
receivables (the “ Receivables ”) generated from
time to time in certain designated credit card accounts (the
“ 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, the “ Pooling and Servicing
Agreement ”), as supplemented by the Series 2007-CC
Supplement (the “ Series Supplement ”), to be
dated as of July 26, 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 Collateral Certificate Transfer Agreement,
Discover Bank has transferred to the Issuer an undivided interest
in certain assets of the Master Trust as represented by a
collateral certificate (the “Collateral Certificate”)
and has caused the Master Trust to issue the Collateral Certificate
to the Issuer. The Collateral Certificate is an investor
certificate under the Pooling and Servicing Agreement.
To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the
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
representative or through an underwriting syndicate managed by you.
Any action taken by you as representative will be binding on all
the Underwriters. Whenever Discover Bank and the Issuer determine
to make such an offering of Notes to which this Agreement
shall
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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 ”). The representative of the
Underwriters may be referred to herein as the “
Representative ”. 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 will have 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 (except to
the extent any of the following representations and warranties are
as of a specified date, in which case such representations and
warranties shall be as of such date), and to each Underwriter named
in the Terms Agreement as of the date thereof (except to the extent
any of the following representations and warranties are as of a
specified date, in which case such representations and warranties
shall be as of such date), that:
(a) A
registration statement on Form S-3 (Registration Statement Nos.
333-141703, 333-141703-01 and 333-141703-02) including a prospectus
and such amendments thereto as may have been required to the date
hereof, relating to the Notes and the Collateral Certificate and
the offering thereof
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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 been
declared effective by the Commission; 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, together with static pool
information required to be disclosed pursuant to Item 1105 of
Regulation AB of the Act (but only to the extent such static
pool information is deemed to be part of or is otherwise
incorporated into such prospectus supplement), 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
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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 or the
Issuer 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) Discover
Bank has been duly organized and is validly existing as a banking
corporation in good standing under the laws of the State of
Delaware. Discover Bank has, in all material respects, full power
and authority to own its properties and conduct its business as
described in the Prospectus, and to execute, deliver and perform
the Pooling and Servicing Agreement, this Agreement and the
applicable Terms Agreement, and to consummate the transactions
contemplated by the Pooling and Servicing Agreement, this Agreement
and the applicable Terms Agreement, and is duly qualified to do
business and is in good standing (or is exempt from such
requirements), and has obtained all necessary material licenses and
approvals (except with respect to the securities laws of any
foreign jurisdiction or the state securities or Blue Sky laws of
various jurisdictions), in each jurisdiction in which failure to so
qualify or obtain such licenses and approvals (i) would have a
material adverse effect on Discover Bank and its subsidiaries,
taken as a whole, or (ii) would have a material adverse effect on
Discover Bank’s ability to consummate the transactions
contemplated by the Pooling and Servicing Agreement, this
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Agreement and the applicable Terms Agreement.
(f) Discover
Bank has duly executed and delivered this Agreement and the
applicable Terms Agreement as of the date of the Terms
Agreement.
(g) 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.
(h) 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.
(i) 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 material 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
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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.
(j) The
Receivables conveyed by Discover Bank to the Master Trust under the
Pooling and Servicing Agreement will have 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.
(k) 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
”).
(l) 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).
(m) Discover
Bank acknowledges that in connection with the offering of the
Notes:
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(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, (iii) the
Underwriters may have interests that differ from those of Discover
Bank, (iv) in connection therewith with respect to all aspects
of the transaction contemplated herein, each Underwriter is acting
as a principal and not the agent or fiduciary of the Issuer,
Discover Bank and the Sellers and Discover Bank and the Sellers
hereby expressly disclaim any fiduciary relationship with respect
thereto and (v) none of the Underwriters has assumed an
advisory responsibility in favor of the Issuer or Discover Bank
with respect to the transaction contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Issuer or Discover Bank on
other matters) or any other obligation to the Issuer or Discover
Bank except the obligations expressly set forth in this Agreement.
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.
(n) Based
on information currently available to, and in the reasonable belief
of, Discover Bank, Discover Bank is not engaged (whether as
defendant or otherwise) in, nor has Discover Bank knowledge of the
existence of, or any threat of, any legal, arbitration,
administrative or other proceedings the result of which might
reasonably be expected to have a material adverse effect on the
Collateral Certificate or the Noteholders.
(o) Except
for the Underwriters, Discover Bank has employed or retained no
broker, finder, commission agent or other person in connection with
the sale of the Notes, and neither Discover Bank nor the Issuer is
under any obligation to pay any broker’s fee or commission in
connection with such sale.
(p) No
Amortization Event or any event which after any applicable grace
period will become an Amortization Event is subsisting in relation
to the Collateral Certificate and no event has occurred which would
constitute (after an issue of the Notes) an Amortization Event or
any event which after any applicable grace period would become an
Amortization Event.
8
(q) Any
taxes, fees and other governmental charges in connection with the
execution, delivery and performance by Discover Bank of this
Agreement, the applicable Terms Agreement and the Pooling and
Servicing Agreement shall have been paid or will be paid by
Discover Bank at or before the Time of Delivery to the extent then
due.
(r) As
of the Time of Delivery, the representations and warranties of
Discover Bank in the Pooling and Servicing Agreement will be true
and correct in all material respects (except to the extent any such
representations and warranties relate to an earlier point in time,
in which case such representations and warranties are true and
correct as of such date).
(s) 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
9
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
10
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, upon the execution by all parties
thereto of any Terms Agreement, the Issuer agrees to issue and sell
and Discover Bank agrees to cause the Issuer to issue and sell to
each of the Underwriters, and each of the Underwriters, 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) 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 Financial Services and Markets
Act 2000 (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; (ii) it is a person of a kind described in
Article 19 of the Financial Services and Markets Act 2000
(Financial
11
Promotion) Order 2005; and (iii) 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, in which the Notes comprise greater than
five percent of the asset pool of such trust or special purpose
vehicle, 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 Latham & Watkins 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 Indenture Trustee, U.S. Bank National Association, 209 S.
LaSalle Street, 3 rd Floor, Mail
Code MK-IL-RY3B, Chicago, IL 60604.
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
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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, to the extent such amendment, supplement or
Issuer Free Writing Prospectus occurs during the period for which
any Underwriter has a requirement to deliver the Prospectus
pursuant to Rule 174 under the Act, 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 such proposed amendment or supplement to the
Registration Statement or Prospectus or 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,
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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;
provided , however , that any Underwriter’s
consent to any amendment shall not constitute a waiver of any of
the conditions of Section 7 of this Agreement.
(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
comply with the requirements of Rule 433 under the Act
applicable to any Issuer
14
Free
Writing Prospectus, including, without limitation, timely filing
with the Commission or retention where required and
legending.
(f) 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 without the prior written consent of Discover
Bank.
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
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