Section 21(1) of the FSMA does not apply to the issuer; and (ii) 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. Further, each Underwriter, severally and not jointly, has represented and agreed that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any retail investor in the European Economic Area. For the purposes of this provision, (A) the expression retail investor means a person who is one (or more) of the following: (I) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended) (MiFID II), (II) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (III) not a qualified investor as defined in Directive 2003/71/EC (as amended or superseded), (B) the expression offer includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe the Notes and (C) the states comprising the European Economic Area are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(c) Each of the Underwriters, severally and not jointly, represents that it will not, at any time that such Underwriter is acting as an underwriter (as defined in Section 2(a)(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, Funding, and the Issuer.
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