DISCOVER CARD MASTER TRUST I
Credit Card Pass-Through Certificates
Underwriting Agreement
(Standard Terms)
MORGAN STANLEY
& CO. INCORPORATED
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Discover
Bank (formerly Greenwood Trust Company) (“Discover”),
as originator of Discover Card Master Trust I (the
“Trust”), proposes, subject to the terms and conditions
stated herein, to cause to be issued and sold from time to time
Credit Card Pass-Through Certificates (the
“Certificates”) in one or more series (each, a
“Series”). The Certificates of each Series will consist
of one or more Classes (each, a “Class”) of
Certificates of such Series. Each Certificate will evidence a
fractional, undivided percentage interest or beneficial interest in
the Trust. The Certificates will be issued by the Trust pursuant to
an Amended and Restated Pooling and Servicing Agreement, dated as
of November 3, 2004, as amended, and as supplemented by a
Series Supplement relating to the specific Series of
Certificates issued thereunder (the Amended and Restated Pooling
and Servicing Agreement, as so supplemented, the “Pooling and
Servicing Agreement”), between Discover as Master Servicer,
Servicer and Seller and U.S. Bank National Association (formerly
First Bank National Association, successor trustee to Bank of
America Illinois, formerly Continental Bank, National Association),
as trustee (the “Trustee”). To the extent not defined
herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
Each
offering of each Class of each Series of Certificates to which this
Agreement applies (the “Securities”) 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 representatives or through an underwriting syndicate managed by
you. Whenever Discover determines to make such an offering of
Securities to which this Agreement shall apply, Discover and one or
more Underwriters (as defined herein) will enter into an agreement
(the “Terms Agreement”) providing for the sale of the
Securities 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 Securities from Discover, 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”). Such Terms Agreement shall specify
the initial principal amount of the Securities to be issued and
their terms not otherwise specified in this Agreement, the price at
which such Securities are to be purchased by the Underwriters from
Discover, the aggregate amount of Securities 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 Securities are to be sold will be determined.
The Terms Agreement shall be substantially in the form attached
hereto. Each such offering of the Securities 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
Securities.
At
or prior to the Time of Sale (as defined in the applicable Terms
Agreement), Discover had prepared the Time of Sale Information (as
defined in the applicable Terms Agreement).
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1.
Discover 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) A
registration statement on Form S-3 (Registration Statement
No. ([ ])
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Certificates and the
offering thereof 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 become effective; such registration statement, as
amended, and the prospectus and prospectus supplement relating to
the sale of the Securities 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 the “Prospectus
Supplement” and the Basic Prospectus together with the
Prospectus Supplement relating to the Securities 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 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
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the
Certificates 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
Section 4), 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 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
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 in
writing by such Underwriter through you expressly for use in such
Time of Sale Information.
(e) Upon
payment therefor as provided herein and in the Terms Agreement, the
Securities will have been duly and validly authorized and (assuming
their due authentication by the Trustee) will have been duly and
validly issued and will conform in all
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material
respects to the description thereof in the Prospectus and will be
entitled to the benefits of the Pooling and Servicing
Agreement.
(f) The
issue and sale of the Securities and the compliance by Discover
with all of the provisions of the Securities, the Pooling and
Servicing Agreement, this Agreement and the Terms Agreement have
been or will have been duly authorized by Discover 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, result in
the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of Discover or NOVUS Credit Services
Inc. (“NOVUS”), material to Discover and NOVUS (whether
or not consolidated) considered as a whole, pursuant to the terms
of, any indenture, loan agreement or other agreement or instrument
for borrowed money to which Discover or NOVUS is a party or by
which Discover or NOVUS may be bound or to which any of the
property or assets of Discover or NOVUS, material to Discover and
NOVUS (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 or, to the best of Discover’s knowledge, any statute
or any order, rule or regulation applicable to Discover of any
court or any Federal, State or other regulatory authority or other
governmental body having jurisdiction over Discover, 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 Securities 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 Securities and except for the filing of
any financing or continuation statement required to perfect or
continue the Trust’s interest in the Receivables.
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(g) The
Receivables conveyed by Discover to the Trust under the Pooling and
Servicing Agreement had 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; and
(h) 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 Trust is not required to be
registered under the Investment Company Act of 1940, as amended
(the “Investment Company Act”).
(i) Other
than the Prospectus, Discover (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 Securities other than
(i) the Time of Sale Information (the Time of Sale Information
and each communication by Discover 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 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).
(j) Discover
is not, and on the date on which the first bona fide offer of the
Certificates 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.
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(k) Discover
acknowledges that in connection with the offering of the
Securities: (i) the Underwriters have acted at arms length,
are not agents of, and owe no fiduciary duties to Discover or any
other person, (ii) the Underwriters owe Discover only those
duties and obligations set forth in this Agreement and
(iii) the Underwriters may have interests that differ from
those of Discover. Discover 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 Securities.
2.
Subject to the terms and conditions herein set forth, Discover
agrees to cause to be issued and sold to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to
purchase from Discover, at the purchase price specified in the
Terms Agreement, the principal amount of Securities set forth in
the Terms Agreement.
3.
(a) From time to time, after the Registration Statement
becomes effective, the several Underwriters propose to offer the
Securities 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 Securities 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) (a) it is
a person whose ordinary activities involve it in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of its business and (b) it has not
offered or sold and will not offer or sell any certificates other
than to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or who it
is reasonable to expect will acquire, hold, manage or dispose of
investments (as principal or agent) for the purposes of their
businesses where the issue of the certificates would
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otherwise
constitute a contravention of Section 19 of the Financial
Services and Markets Act 2000 (the “FSMA”) by the
issuer; (ii) 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 FSMA) received by
it in connection with the issue or sale of any certificates 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; (iii) it has only communicated or caused to be
communicated and will only communicate or cause to be communicated
any invitation or inducement 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; (iv) it is a person of a kind described in
Article 19 of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2001; and (v) 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 certificates 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
Securities, transfer, deposit or otherwise convey any Securities
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 Securities without the prior
written consent of Discover.
4.
Securities to be purchased by each Underwriter hereunder and under
the Terms Agreement shall be delivered by or on behalf of Discover
to you for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price
thereof
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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 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 may agree upon in writing, such time and date
being herein called the “Time of Delivery.” Unless
otherwise specified in the Terms Agreement, the Securities shall be
represented by definitive certificates, registered in the name of
Cede & Co., as nominee for The Depository Trust Company. Such
definitive certificates will be made available for inspection at
least twenty-four hours prior to the Time of Delivery at the office
of the Trustee, U.S. Bank, 209 S. LaSalle Street, 3
rd Floor, Mail Code MK-IL-RY3B.
5.
Discover agrees with each of the Underwriters:
(a) Immediately
following the execution of each Terms Agreement, Discover will
prepare a Prospectus Supplement setting forth the amount of
Securities covered thereby and the terms thereof not otherwise
specified in the Basic Prospectus, the price at which such
Securities are to be purchased by the Underwriters from Discover,
either the initial public offering price or the method by which the
price at which such Securities are to be sold will be determined,
the selling concessions and allowances, if any, and such other
information as Discover deems appropriate in connection with the
offering of such Securities, and Discover 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 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 proposed Issuer
Free Writing Prospectus to which you reasonably object; to advise
you promptly after it receives notice of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any
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supplement to
the Prospectus, any amended Prospectus or any Issuer Free Writing
Prospectus has been filed and to furnish you with copies thereof;
to advise you, 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 Securities 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 Securities 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 Securities,
provided that in connection therewith Discover shall not 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 Securities, 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
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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
Securities 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 an
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