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Exhibit 1.1
EXECUTION COPY
DISCOVER CARD EXECUTION NOTE
TRUST
(Issuer)
DISCOVER BANK
(Depositor)
Underwriting
Agreement
(Standard Terms)
March 3, 2008
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
4 World Financial Center, 10th
Floor
New York, New York 10080
as Underwriter and as a
Representative
of the Underwriters named in Schedule I
to the Terms Agreement
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, dated as of
July 26, 2007, as supplemented by the Indenture Supplement,
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, 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 ”), 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
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underwriters for whom you are acting as
a representative or through an underwriting syndicate managed by
you. Any action taken by you as a 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 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 representatives of the
Underwriters may be referred to herein individually as a “
Representative ” and collectively as the “
Representatives ”. 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:
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(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
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.
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(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 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
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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 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 has been duly
and validly issued and conforms in all material respects to the
description thereof in the Prospectus and is 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
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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 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).
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(m) Discover Bank
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 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
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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.
(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
9
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 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
10
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 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
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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
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
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prepare a Prospectus Supplement setting
forth the amount of Notes covered thereby and the terms thereof 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 or any Issuer
Free Writing 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, the Prospectus or any
Issuer Free Writing 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 the Prospectus or any
Issuer Free Writing 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
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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, 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 or any Issuer Free Writing
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 or any Issuer Free Writing 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, or amended
Issuer Free Writing Prospectus or supplement to such Issuer Free
Writing Prospectus (as applicable), 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
14
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
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
performed, and the following additional conditions:
(a) All actions required to
be taken and all filings required to be made by Discover
Bank
15
and the Issuer under the Act prior to
the Time of Delivery for the Notes shall have been duly taken or
made; and prior to the applicable Time of Delivery, no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the
Commission in connection with the Registration Statement shall have
been complied with to the Commission’s
satisfaction.
(b) All corporate and
statutory trust proceedings and related matters in connection with
the organization of Discover Bank and the Issuer, the validity of
the Pooling and Servicing Agreement, the Indenture, the Trust
Agreement, the Trust Certificate (as defined in the Trust
Agreement) and the registration, authorization, issue, sale and
delivery of the Notes shall have been satisfactory to counsel to
the Underwriters, and such counsel s
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