exv4w2



 




Exhibit 4.2




Execution Copy





 






DISCOVER BANK

Master Servicer, Servicer and Seller




and




U.S. BANK NATIONAL ASSOCIATION

Trustee




on behalf of the Certificateholders




THIRD AMENDMENT TO AMENDED AND RESTATED

POOLING AND SERVICING AGREEMENT

dated as of November 3, 2004




 






DISCOVER CARD MASTER TRUST I




 






Dated as of

July 26, 2007




 









 





     This THIRD AMENDMENT TO AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT (this
“Amendment”), dated as of July 26, 2007, is entered into by and between DISCOVER BANK, a
Delaware banking corporation (formerly Greenwood Trust Company), as Master Servicer, Servicer and
Seller (“Discover Bank”) and U.S. BANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America (formerly First Bank National
Association, successor trustee to Bank of America Illinois, formerly Continental Bank, National
Association), as Trustee (the “Trustee”).



          WHEREAS, Discover Bank and the Trustee entered into that certain Pooling and Servicing
Agreement dated as of October 1, 1993, as amended, which was restated in its entirety by that
certain Amended and Restated Pooling and Servicing Agreement, dated as of November 3, 2004, by and
between Discover Bank and the Trustee, relating to Discover Card Master Trust I, as amended by that
certain First Amendment to Amended and Restated Pooling and Servicing Agreement and Global
Amendment to Certain Series Supplements thereto, dated as of January 4, 2006, and that certain
Second Amendment to Amended and Restated Pooling and Servicing Agreement, dated as of March 30,
2006, (as amended, the “Agreement”); and




          WHEREAS, pursuant to Sections 13.01(a)(ii) of the Agreement, Discover Bank and the Trustee
desires to amend Sections 6.06 and 11.02 of the Agreement, in a manner that shall not adversely
affect in any material respect the interests of the Holders of any Class of any Series currently
outstanding, in contemplation of one or more Series that will issue only collateral certificates to
an entity or entities that will issue securities supported by, among other things, such collateral
certificates.




          NOW, THEREFORE, in consideration of the foregoing and the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and for the benefit of the
Certificateholders:




          1. Definitions. Unless otherwise specified, capitalized terms used in this Amendment
shall have the same meanings ascribed to them in the Agreement.




          2. Amendments to the Agreement.




          (a) Effective as of the date hereof Section 6.06 of the Pooling and Servicing Agreement is
amended by replacing paragraph (a) thereof with the following paragraph:





“(a) The Sellers may direct the Trustee to issue, from time to time, one or more
Series subject to the conditions described below (each such issuance, a “New
Issuance”). The Sellers may effect a New Issuance by notifying the Trustee, in
writing, at least three days in advance of the date upon which the New Issuance is
to occur. Any notice of the New Issuance shall state the designation of any Series
to be issued on the date of the New Issuance and, with respect to each such Series:
(i) its Series Initial Investor Interest, (ii) the Certificate Rate of each Class or
Subclass, if applicable, of such Series; (iii) its Payment Dates and the date from
which interest shall accrue; (iv) its Series Termination Date and (v) any other
terms that the Sellers set forth in such notice of a New Issuance; provided,



 









 







however, that any notice of a New Issuance with respect to any Series that issues
only collateral certificates to an entity or entities that will issue securities
supported by, among other things, such collateral certificates, shall, in lieu of
stating the information in clauses (i) through (v) above, attach a copy of the
Series Supplement therefor, in a form substantially agreed upon by the Sellers, the
Master Servicer, the Servicers and the Trustee. On the date of the New Issuance,
the Trustee shall authenticate and deliver any such Series only upon satisfaction of
the following conditions: (a) Discover Bank on behalf of the Holder of the Seller
Certificate shall have delivered to the Trustee a Series Supplement executed by the
Sellers, the Master Servicer, the Servicers and the Trustee that specifies the terms
of such Series, (b) the Sellers shall have delivered to the Trustee written
confirmation from the Rating Agencies that the New Issuance will not result in the
reduction or withdrawal of the ratings of any Class of any Series then outstanding
rated by each Rating Agency, (c) the Sellers shall have delivered to the Trustee and
the Rating Agencies (A) with respect to each New Issuance, an opinion of counsel
dated as of the date of such New Issuance to the effect that, although not free from
doubt, the Investor Certificates of such New Issuance will be treated as
indebtedness of the Sellers for federal income and Delaware (and any other state
where substantial servicing activities are conducted by an Additional Seller with
respect to Accounts serviced by such Additional Seller, or by Discover Bank if there
is a substantial change from Discover Bank’s present servicing activity, if any, in
such state) state income or franchise tax purposes; provided, however, such opinion
shall not be required for any New Issuance with respect to any Series that issues
only collateral certificates to an entity or entities that will issue securities
supported by, among other things, such collateral certificates, and (B) with respect
to each New Issuance other than the New Issuance related to the first Series issued
by the Trust, an opinion of counsel dated as of the date of such New Issuance to the
effect that such New Issuance will not adversely affect the conclusion set forth in
any prior opinion of counsel delivered pursuant to this clause (c) as to the
treatment of the Investor Certificates of any such prior Series as indebtedness of
the Sellers or as to the treatment of the Trust as a mere security device and (d)
Discover Bank on behalf of the Holder of the Seller Certificate shall not be
required to designate Additional Accounts or convey Participation Interests to the
Trust pursuant to Section 2.10(a) as a result of such New Issuance. The Series
Supplement with respect to any New Issuance may modify or amend the terms of this
Agreement, provided, that such modifications or amendments shall apply solely with
respect to such Series. Upon satisfaction of such conditions, the Trustee shall
issue, as provided in Section 6.06(d), such Series of Investor Certificates dated as
of the date of the New Issuance.”



          (b) Effective as of the date hereof Section 11.02(c) of the Pooling and Servicing Agreement is
amended by replacing paragraph (c) thereof with the following paragraph:




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“(c) The Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement or any Series Supplement, or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the request,
order or direction of any of the Certificateholders (or, for any Series that issues
only collateral certificates to an entity or entities that will issue securities
supported by, among other things, such collateral certificates, to the holders of
such securities, if the documents governing the terms of such securities so provide)
pursuant to the provisions of this Agreement or any Series Supplement, unless such
Certificateholders (or the holders of such securities, as applicable) shall have
offered to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby; provided, however, that
nothing contained herein shall relieve the Trustee of the obligations, upon the
occurrence of any Master Servicer Termination Event or any Servicer Termination
Event (which has not been cured), to exercise such of the rights and powers vested
in it by this Agreement or any Series Supplement, and to use the same degree of care
and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs;”



          (c) Effective as of the date hereof Section 13.04 of the Pooling and Servicing Agreement is
amended by replacing the entire section with the following paragraph:





     “Section 13.04 Governing Law; Exclusive Forum. Except as otherwise
specifically provided herein (including the provisions of any Series Supplement
making an election under the Delaware Asset-Backed Securities Facilitation Act,
which Act is specifically intended to apply hereto), this Agreement and the
Certificates shall be construed in accordance with the internal laws of the State of
New York without reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance with
such laws. Each of Discover Bank and the Trustee hereby irrevocably consents and
agrees that any legal or equitable action or proceeding brought by it arising under
or in connection with the Agreement, as amended, the Indenture (as amended, the
“Indenture”) dated as of July 26, 2007, between the Note Issuance Trust and U.S.
Bank National Association as Indenture Trustee, the Series 2007-CC Collateral
Certificate Transfer Agreement, the Series 2007-CC Collateral Certificate or the
Notes (each as defined in the Indenture) shall be brought exclusively in any federal
or state court in the State of Delaware, and hereby irrevocably waives, and agrees
not to assert in any action or proceeding brought against Discover Bank or the
Trustee, any claim that it is not personally subject to the jurisdiction of any such
court.



          3. Effect Upon the Agreement. Except as specifically set forth herein, the Agreement
shall remain in full force and effect and is hereby ratified and confirmed.




          4. Incorporation by Reference. The provisions of Sections 13.04 (Governing Law),
13.07 (Severability of Provisions), 13.10 (Further Assurances), 13.12 (Counterparts) and
13.13 (Third Party Beneficiaries) of the Agreement shall be incorporated into this Amendment,

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          mutatis mutandis, as if references to “this Agreement” in the Agreement were references to this
Amendment.




[Remainder of page intentionally blank; signature page follows]




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      IN WITNESS WHEREOF, Discover Bank and the Trustee have caused this Amendment to be duly
executed by their respective officers as of the day and year first above written.




	 	 	 	 	 
	 	 	DISCOVER BANK, as Master Servicer, Servicer and Seller
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Michael F. Rickert
	 

	 	 	 	 
	 

	 	Name:
	 	Michael F. Rickert
	 

	 	Title:
	 	Vice President, Chief Financial
Officer and Treasurer
	 
	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Patricia M. Child
	 

	 	 	 	 
	 

	 	Name:
	 	Patricia M. Child
	 

	 	Title:
	 	Vice President






Signature Page to Third Amendment

to Amended and Restated Pooling and Servicing Agreement