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EXHIBIT 4.1
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DISCOVER BANK
Master Servicer, Servicer and Seller
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
on behalf of the Certificateholders
FIFTH AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 1993
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DISCOVER CARD MASTER TRUST I
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Dated as of
March 30, 2001
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THIS FIFTH AMENDMENT TO THE POOLING AND SERVICING AGREEMENT
(the "Amendment"), dated as of March 30, 2001, is entered into by and between
DISCOVER BANK (formerly Greenwood Trust Company), a Delaware banking
corporation, as Master Servicer, Servicer and Seller ("Discover Bank") 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.
WHEREAS, Discover Bank and the Trustee have entered into the
POOLING AND SERVICING AGREEMENT (the "Agreement") dated as of October 1, 1993
relating to Discover Card Master Trust I; and
WHEREAS, pursuant to subsection 13.01(a) of the Agreement,
Discover Bank and the Trustee desire to amend Sections 2.11, 3.02, 12.01, 12.02,
12.03 and 13.01 thereof in a manner that shall not adversely affect in any
material respect the interests of the Holders of any Class of any Series then
outstanding.
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 Section 2.11.
(a) Section 2.11(a) is hereby amended and
restated in its entirety to read as follows:
(a) Optional Removals. From time to time,
Discover Bank on behalf of the Holder of the
Seller Certificate may, but shall not be
obligated to, designate Accounts for
deletion and removal from the Trust
("Removed Accounts"), such deletion and
removal to be effective as of the day
specified in the notice referred to in the
following sentence, which may be any day
with respect to removals of Accounts
specified in Section 2.11(b)(vi)(A) and
which shall be the last day of any Due
Period with respect to removals of Accounts
specified in Section 2.11(b)(vi)(B) or (C)
(any such effective date, the "Removal
Date"), subject to the notice requirement
and other conditions set forth below. On or
before the fifth Business Day prior to the
Removal Date (the "Removal Notice Date"),
Discover Bank on behalf of the Holder of the
Seller Certificate shall give the Trustee,
the Master Servicer and any Credit
Enhancement Provider written notice that the
Receivables from such Removed Accounts are
to be reassigned by the Trustee
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to Discover Bank on behalf of the Holder of
the Seller Certificate effective as of the
Removal Date.
(b) Section 2.11(b) is hereby amended and
restated in its entirety to read as follows:
(b) Conditions to the Designation of Removed
Accounts. Discover Bank on behalf of the
Holder of the Seller Certificate shall be
permitted to designate and require
reassignment to the Holder of the Seller
Certificate of the Receivables from Removed
Accounts only upon satisfaction of the
following conditions:
(i) As of the Removal Date, the
aggregate amount of Principal
Receivables in the Trust, less the
aggregate amount of Principal
Receivables in such Removed
Accounts, shall not be less than the
Minimum Principal Receivables
Balance;
(ii) The removal of the Removed
Accounts on any Removal Date shall
not, in the reasonable belief of
Discover Bank cause either (A) an
Amortization Event to occur or (B)
the Deficit Accumulation Amount or
Deficit Liquidation Amount, as
applicable, with respect to any
Series then outstanding on any
Distribution Date to be greater than
zero;
(iii) On or prior to the fifth
Business Day following the Removal
Date, the Seller or Sellers with
respect to such Removed Accounts
shall have delivered to the Trustee
(A) for execution a written
assignment substantially in the form
of Exhibit C hereto, which shall
include a warranty of the Trustee
that since the date of transfer by
such Seller or Sellers under this
Agreement the Trustee has not sold,
transferred or encumbered any such
Receivable or interest therein and
(B) a computer file, microfiche list
or hard copy containing a true and
complete list of all such Removed
Accounts identified by originator
and account number and containing
the amount of Principal Receivables
in such Removed Accounts as of the
Removal Date, which computer file or
microfiche list shall as of the
Removal Date modify and amend
Schedule 1 hereto by deleting
therefrom information with respect
to any Removed Account and be made a
part of this Agreement;
(iv) Discover Bank on behalf of
the Holder of the Seller Certificate
shall represent and warrant that no
selection
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procedures believed by Discover Bank
to be materially adverse to the
interests of the Holders of any
Class of any Series then
outstanding, or any Credit
Enhancement Provider, were utilized
in selecting the Removed Accounts;
(v) Discover Bank on behalf of the
Holder of the Seller Certificate
shall have delivered notice of such
proposed reassignment to the Rating
Agencies and the Rating Agencies
shall have advised Discover Bank
that such reassignment would not
cause the rating of any Class of any
Series then outstanding to be
lowered or withdrawn;
(vi) The Removed Accounts shall
meet one of the following criteria:
(A) Each of such Accounts
is a Charged-Off Account;
provided that Discover Bank
shall transfer to the Trust
all proceeds received with
respect to any Removed
Account that is a
Charged-Off Account, such
amounts to constitute
Recovered Amounts under the
terms of this Agreement;
(B) Such Accounts were
randomly selected from the
Accounts; provided that
such random selection
process need not include
selection of Charged-Off
Accounts; or
(C) Such Accounts were
originated or maintained in
connection with an affinity
or private-label
arrangement, and such
affinity or private-label
arrangement has been
cancelled by a third party
or has expired; provided,
however, that Accounts
originated or maintained
pursuant to an affinity or
private-label arrangement
shall only be removed
pursuant to this Section
2.11(b)(vi)(C) if, prior to
the cancellation or
expiration of such
arrangement, the Master
Servicer designated such
arrangement in writing to
the Trustee as an
arrangement with respect to
which these provisions
apply; and
(vii) Discover Bank on behalf of the
Holder of the Seller Certificate
shall have delivered to the Trustee
an Officer's Certificate confirming
the items set forth in (i), (ii),
(iv), (v) and (vi) above. The
Trustee may conclusively rely on
such Officer's Certificate, shall
have no duty to make inquiries
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with regard to the matters set forth
therein and shall incur no liability
in so relying.
Upon satisfaction of the above conditions, the
Trustee shall execute and deliver the reassignment to Discover
Bank on behalf of the Holder of the Seller Certificate, and
the Receivables from the Removed Accounts shall no longer
constitute a part of the Trust.
3. Amendments to Section 3.02.
(a) Section 3.02(e) is hereby amended and
restated in its entirety to read as follows:
(e) No Servicer may sell receivables in
Charged-Off Accounts pursuant to Section
3.02(b)(iii) after March 31, 2001; provided,
however, that to the extent that the
Trustee, on behalf of the Trust, entered
into agreements with third parties on or
before March 31, 2001 that permit the Trust
to require, or obligate the Trust to accept,
reassignment of receivables in Charged-Off
Accounts sold prior to March 31, 2001
pursuant to such agreements, and to
substitute receivables in Charged-Off
Accounts for such reassigned receivables,
then the Trust shall be entitled to act
under such agreements and to substitute
receivables for such reassigned receivables,
such substitute receivables to be identified
by the Master Servicer as meeting the
requirements of such agreements; provided,
further, however, that the Master Servicer
shall use its best efforts to identify an
amount of substitute receivables that
closely approximates the amount of
reassigned receivables and that will satisfy
the substitution requirements of any such
agreement.
4. Amendments to Section 12.01.
(a) Section 12.01(b) is hereby amended and
restated in its entirety to read as follows:
(b) If as of the Distribution Date with
respect to each Series then outstanding in
the month immediately preceding the month in
which the Final Trust Termination Date
occurs the Aggregate Investor Interest would
be greater than zero (after giving effect to
all transfers, withdrawals and deposits to
occur on such date pursuant to applicable
Series Supplements), Receivables (or
interests therein), which shall be selected
at random from the Receivables, in an amount
sufficient to yield proceeds equal to the
Aggregate Investor Interest plus any accrued
and unpaid Certificate Interest with respect
to each outstanding Series and any amounts
owing to any Credit Enhancement Provider
with respect to any
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outstanding Series pursuant to the
applicable Series Supplement (after giving
effect to such transfers, withdrawals and
deposits) shall be sold on behalf of the
Trust before the Final Trust Termination
Date by an institution acceptable to the
Trustee and the Master Servicer that is
either (i) a nationally recognized
investment bank, (ii) a nationally
recognized commercial bank or (iii) any
other institution whose regular business
includes the sale of receivables or trust
certificates similar to the Investor
Certificates, and the proceeds therefor
shall be paid to the Trust on or prior to
the last Distribution Date with respect to
each Series then outstanding. No Seller and
no affiliate or agent of any Seller shall be
permitted to bid for or purchase Receivables
pursuant to this Section 12.01(b); provided,
however, that an affiliate or agent of any
Seller may act as selling institution for
the sale as specified in the preceding
sentence, so long as such affiliate or agent
does not act as principal in connection with
such sale. The proceeds of such sale shall
be treated as Collections on the Receivables
and shall be allocated among outstanding
Series and deposited in accordance with
Section 4.03 and the applicable Series
Supplements; provided, however, that any
such proceeds received after the end of the
Due Period related to the last Distribution
Date before the Final Trust Termination Date
shall nevertheless be deemed to have been
received during such Due Period. During such
period ending on such Distribution Date, the
Master Servicer and the Servicers shall
continue to process Collections on the
Receivables and deposit such Collections in
accordance with the provisions of Section
4.03. Section 12.03 will apply with respect
to any Receivables not sold pursuant to this
Section 12.01(b).
5. Amendments to Section 12.02.
(a) Section 12.02(c) is hereby amended and
restated in its entirety to read as follows:
(c) If as of the Distribution Date in the
month immediately preceding the month in
which a Series Termination Date occurs, the
Series Investor Interest with respect to
such Series is greater than zero (after
giving effect to all transfers, withdrawals
and deposits to occur on such date),
Receivables (or interests therein) in an
amount sufficient to yield proceeds equal to
the Series Investor Interest plus any
accrued and unpaid Certificate Interest and
with respect to such Series and any amounts
owing to the Credit Enhancement Provider
with respect to such Series pursuant to the
Series Supplement for such Series, if
applicable, on such Series Termination Date
(after giving effect to such transfers,
withdrawals and deposits) shall be sold on
behalf of the Trust by an institution
acceptable to the
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Trustee and the Master Servicer that is
either (i) a nationally recognized
investment bank, (ii) a nationally
recognized commercial bank or (iii) any
other institution whose regular business
includes the sale of receivables or of trust
certificates similar to the Investor
Certificates; provided, however, that in no
event shall the amount of Receivables sold
hereunder with respect to any Series exceed
the product of (A) the aggregate amount of
Receivables in the Trust and (B) a fraction
the numerator of which is the Series
Investor Interest of such Series and the
denominator of which is the Aggregate
Investor Interest, in each case, on such
Distribution Date in the month immediately
preceding the month in which such Series
Termination Date occurs; and provided,
further, the Receivables selected to be sold
hereunder shall not be materially different
from the Receivables remaining in the Trust
as of such Distribution Date and shall be
selected at random from the Receivables. The
proceeds (the "Series Termination Proceeds")
therefrom shall be paid to the Trust and
immediately deposited into the Series
Distribution Account with respect to such
Series and paid to the Investor
Certificateholders of such Series and to the
Credit Enhancement Provider or otherwise, if
applicable, pursuant to the terms of the
Series Supplement, on the Distribution Date
with respect to such Series immediately
following such deposit. Such payment shall
be deemed to be the final distribution with
respect to such Series. No Seller and no
affiliate or agent of any Seller shall be
permitted to bid for or purchase Receivables
pursuant to this Section 12.02(c); provided,
however, that an affiliate or agent may act
as selling institution for the sale as
specified in the first sentence of this
Section 12.02(c), so long as such affiliate
or agent does not act as principal in
connection with such sale.
6. Amendments to Section 12.03.
(a) Section 12.03 is hereby amended and restated
in its entirety to read as follows:
12.03 Sellers' Termination Rights. Upon the
termination of the Sellers' obligations and
responsibilities with respect to the Trust
pursuant to Section 12.01 and the surrender,
if applicable, of any certificated Seller
Certificate, the Trustee shall distribute to
each Holder of the Seller Certificate such
Holder's pro rata share of any Receivables
and cash remaining in the Trust in respect
of the Seller Interest. Such distribution
will be made without recourse,
representation or warranty except for the
warranty that since the date of transfer by
any Seller under this Agreement, the Trustee
has not sold, transferred or encumbered any
such Receivables or interests therein. Such
distribution shall transfer all right, title
and
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interest of the Trust in the Receivables,
whether then existing or thereafter created,
and all proceeds thereof except, if
applicable, for amounts held by the Trustee
pursuant to Section 12.02(b). The Trustee
shall execute and deliver such instruments
of transfer and assignment including,
without limitation, any document necessary
to release the Trust's security interest in
such Receivables and to release any filing
evidencing or perfecting such security
interest, in each case without recourse, as
shall be reasonably requested by the Holder
of the Seller Certificate to vest in the
Holder of the Seller Certificate all right,
title and interest which the Trust had in
the Receivables.
7. Amendments to Section 13.01.
(a) Immediately following the semicolon at the
end of Section 13.01(a)(i) the following
clause is added:
and provided, further, that the permitted
activities of the Trust may be significantly
changed pursuant to this Section 13.01(a)
only with the consent of the Holders of
Investor Certificates evidencing Fractional
Undivided Interests aggregating not less
than 51% of the Aggregate Invested Amount
(such percentage to be calculated without
taking into account the Class Invested
Amount represented by any Investor
Certificates beneficially owned by any
Seller or any affiliate or agent of any
Seller);
(b) Immediately following the semicolon at the
end of Section 13.01(a)(ii) the following
clause is added:
and provided, further, that the permitted
activities of the Trust may be significantly
changed pursuant to this Section 13.01(a)
only with the consent of the Holders of
Investor Certificates evidencing Fractional
Undivided Interests aggregating not less
than 51% of the Aggregate Invested Amount
(such percentage to be calculated without
taking into account the Class Invested
Amount represented by any Investor
Certificates beneficially owned by any
Seller or any affiliate or agent of any
Seller);
(c) The second to last sentence of Section
13.01(b) is deleted and replaced with:
For purposes of calculating whether a 66-2/3
% consent has been achieved pursuant to this
Section 13.01(b), the applicable Class
Invested Amount or Series Invested Amount
shall be calculated without taking into
account the Class Invested Amount
represented by any Investor Certificates
beneficially owned by any Seller or any
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affiliate or agent of any Seller, and no
Seller or affiliate or agent of a Seller
shall be entitled to vote on any amendment
pursuant to this Section 13.01(b).
Notwithstanding the foregoing, the permitted
activities of the Trust may be significantly
changed pursuant to this Section 13.01(b)
only with the consent of the Holders of
Investor Certificates evidencing Fractional
Undivided Interests aggregating not less
than 51% of the Aggregate Invested Amount
(such percentage to be calculated without
taking into account the Class Invested
Amount represented by any Investor
Certificates beneficially owned by any
Seller or any affiliate or agent of any
Seller).
8. 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.
9. Counterparts. This Amendment may be executed in two
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief Accounting
Officer and Treasurer
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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