Fifth Amendment to Amended and Restated Pooling and Servicing Agreement



 Exhibit 4.1 
  
  
 DISCOVER BANK 
 Master Servicer, Servicer and Seller 
 and 
 U.S. BANK NATIONAL ASSOCIATION

 Trustee 
 on behalf of the
Certificateholders 
 FIFTH AMENDMENT TO AMENDED AND RESTATED 
 POOLING AND SERVICING AGREEMENT 
 dated as of November 3, 2004 
  
  
 DISCOVER CARD MASTER TRUST I 
  
  
 Dated as of 
 July 24, 2009 







 Execution Copy 
 This FIFTH AMENDMENT TO AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT (this “Amendment”), dated as of July 24, 2009, 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, that certain Second Amendment to Amended and Restated Pooling and Servicing
Agreement, dated as of March 30, 2006, that certain Third Amendment to Amended and Restated Pooling and Servicing Agreement, dated as of July 26, 2007, and that Fourth Amendment to Amended and Restated Pooling and Servicing Agreement,
dated as of December 18, 2007 (as amended, the “Agreement”); and 
 WHEREAS, pursuant to Section 13.01(a)(ii) of
the Agreement, Discover Bank and the Trustee desire to amend Section 6.06 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,
including any Series that has issued only collateral certificates to an entity or entities that 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 1.01 of the Agreement is amended by deleting the definition of “Interchange Series” in its
entirety and replacing it with the following: 
 “ “Interchange Series” shall mean all Series that indicate in the
Series Term Sheet of their applicable Series Supplement that they are Interchange Series. No series issued prior to November 3, 2004 shall be designated as an Interchange Series.” 
 (b) Effective as of the date hereof, Section 6.06 of the 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; provided, however, such opinions described in this clause
(c) shall not be required for any New Issuance with respect to the Series 

  

 2 








 
established by that Series Supplement to Amended and Restated Pooling and Servicing Agreement, dated as of July [2], 2009. 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.” 
 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, mutatis mutandis, as if references to “this Agreement” in the Agreement were references to this Amendment. 
 [Remainder of page intentionally blank; signature page follows] 
  

 3 








 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 Fifth Amendment 
 to Amended and Restated Pooling and Servicing Agreement