ASSIGNMENT NO. 7 TO TRUST
ASSIGNMENT NO. 7 (this "Assignment"), dated as of November 1, 1997, by and
between PEOPLE'S BANK, a Connecticut stock savings bank (the "Seller"), and
BANKERS TRUST COMPANY, a New York banking corporation, not in its individual
capacity but solely as trustee (the "Trustee"), pursuant to the Pooling and
Servicing Agreement (referred to below).
W I T N E S S E T H
WHEREAS, the Seller and the Trustee are parties to the Amended and Restated
Pooling and Servicing Agreement dated as of March 18, 1997, amending and
restating in its entirety the Pooling and Servicing Agreement, dated as of
June 1, 1993, as amended by an Amendment thereto, dated as of September 24,
1997 (hereinafter as such amended and restated agreement may have been, or
may from time to time be, amended, restated, supplemented or otherwise
modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to Assignment No. 1 to Trust dated as of October 4, 1994
by and between Seller and Trustee ("Assignment No. 1"), Seller conveyed the
Receivables of certain Additional Accounts identified by the code "0509" to
the Trust as part of the corpus of Trust (with each of the capitalized terms
appearing in this or the following paragraphs having the meaning respectively
assigned thereto in Section 1 hereof);
WHEREAS, pursuant to Assignment No. 2 to Trust dated as of July 14, 1995 by
and between Seller and Trustee ("Assignment No. 2"), Seller conveyed
Receivables of certain Additional Accounts identified by the code "1815" to
the Trust as part of the corpus of the Trust;
WHEREAS, pursuant to Assignment No. 3 to Trust dated as of May 1, 1996 by
and between Seller and Trustee ("Assignment No. 3"), Seller conveyed
Receivables of certain Additional Accounts identified by the codes "0507,"
"0508," "2151," and "2152" to the Trust as part of the corpus of the Trust;
WHEREAS, pursuant to Assignment No. 4 to Trust dated as of October 1, 1996
by and between Seller and Trustee ("Assignment No. 4"), Seller conveyed
Receivables of certain Additional Accounts identified by the code "3181" to
the Trust as part of the corpus of the Trust;
WHEREAS, pursuant to Assignment No. 5 to Trust dated as of May 1, 1997 by
and between Seller and Trustee ("Assignment No. 5"), Seller conveyed
Receivables of certain Additional Accounts identified by the code "3180"
(excluding roll-up agent banks identified by the codes 1997 and 2997) to the
Trust as part of the corpus of the Trust;
WHEREAS, pursuant to Assignment No. 6 to Trust dated as of August 1, 1997 by
and between Seller and Trustee ("Assignment No. 6"), Seller conveyed
Receivables of certain Additional Accounts identified by the code "3180" and
consisting only of roll-up agent banks identified by the codes 1997 and 2997,
which were excluded from the Receivables of certain Additional Accounts
conveyed to the Trust pursuant to Assignment No. 5, to the Trust as part of
the corpus of the Trust;
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Seller again
wishes to designate certain Additional Accounts of the Seller, identified by
the codes and consisting of the agent banks described below:
code "0407-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "0509-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "1815-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "0507-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "0508-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "2151-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "2152-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "3181-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "3180-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "4209-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "2150-8999" (excluding agent banks identified by the codes 8012 and 8112);
to be included as Accounts and to convey the Receivables of such Additional
Accounts, whether now existing or hereinafter created, to the Trust as part
of the corpus of the Trust; and
WHEREAS, the Trustee is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Seller and the Trustee
hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and Servicing
Agreement and used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, November 1, 1997.
"Addition Notice Date" shall mean, with respect to the Additional Accounts
designated hereby, October 2, 1997.
2. Designation of Additional Accounts. The Seller shall deliver to the
Trustee, on behalf of the Trust, not later than five Business Days (or as
soon as is reasonably practicable) after the Addition Date, a computer file
or microfiche list containing a true and complete list of each VISA and
MasterCard account which as of the Addition Date shall be deemed to be an
Additional Account and included as an Account under the Pooling and Servicing
Agreement, such accounts being identified by account number as of the close
of business on the Addition Date by including in such computer file or
microfiche list codes, and consisting of such banks, described below:
code "0407-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "0509-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "1815-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "0507-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "0508-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "2151-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "2152-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "3181-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "3180-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "4209-8999" (excluding agent banks identified by the codes 8012 and 8112);
code "2150-8999" (excluding agent banks identified by the codes 8012 and 8112).
Such list shall be marked as Schedule 1 to this Assignment and, as of the
Addition Date, shall be incorporated into and made a part of this Assignment
and the Pooling and Servicing Agreement.
3. Conveyance of Receivables.
(a) The Seller does hereby transfer, assign, set over and otherwise
convey to the Trustee, on behalf of the Trust, for the benefit of the
Certificateholders, without recourse on and after the Addition Date, all
right, title and interest of the Seller in and to (i) the Receivables now
existing and hereafter created in the Additional Accounts designated hereby,
(ii) all monies and investments due or to become due with respect thereto
(including all Finance Charge Receivables), (iii) all proceeds of such
Receivables, (iv) Recoveries relating to such Receivables and (v) Interchange
related to such Receivables and allocated to the Trust pursuant to Section
2.5(k) of the Pooling and Servicing Agreement and all proceeds thereof.
(b) In connection with such transfer, assignment, set-over and
conveyance the Seller agrees to record and file, at its own expense, a
financing statement with respect to the Receivables now existing and hereafter
created in the Additional Accounts designated hereby (which may be a single
financing statement with respect to all such Receivables) for the transfer
of accounts, as defined in Section 9-106 of the UCC as in effect in the State
of New York, meeting the requirements of applicable state law in such manner
and such jurisdictions as are necessary to perfect the assignment of such
Receivables to the Trust, and to deliver a file-stamped copy of such financing
statement or other evidence of such filing (which may, for purposes of this
Section 3, consist of telephone confirmation of such filing) to the Trustee
on or prior to the date of this Assignment.
(c) In connection with such transfer, the Seller further agrees, at
its own expense, on or prior to the Addition Date to indicate in its computer
files, by including in such computer file or microfiche list the codes
described in Section 2 above with respect to the addition of Accounts, in
sequence in the dependent number field, that the Receivables created in
connection with the Additional Accounts designated hereby have been
transferred to the Trust pursuant to this Assignment for the benefit of the
Certificateholders.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
acceptance on behalf of the Trust of all right, title and interest previously
held by the Seller in and to (i) the Receivables now existing and hereafter
created in the Additional Accounts designated hereby, (ii) all monies and
investments due or to become due with respect thereto (including all Finance
Charge Receivables), (iii) all proceeds of such Receivables, (iv) Recoveries
relating to such Receivables and (v) Interchange relating to such Receivables
and allocated to the Trust pursuant to Section 2.5(k) of the Pooling and
Servicing Agreement and all proceeds thereof, and declares that it shall
maintain such right, title and interest, upon the trust set forth in the
Pooling and Servicing Agreement, for the benefit of all Certificateholders.
5. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Trustee and the Trust as of the Addition Date:
(a) Legal, Valid and Binding Obligation. This Assignment constitutes
a legal, valid and binding obligation of the Seller enforceable against the
Seller in accordance with its terms, except as such enforceability may be
limited (A) by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and the rights of creditors of Connecticut stock
savings banks, (B) by general principles of equity (whether considered in a
suit at law or in equity), (C) with respect to provisions indemnifying a
party against liability where such indemnification is contrary to public
policy, (D) by the effect of judicial decisions which have held that certain
covenants and provisions of agreements are unenforceable where (y) the breach
of such covenants or provisions imposes restrictions or burdens where it
cannot be demonstrated that such breach is a material breach of a material
covenant or provision, or (z) the creditor's enforcement of such covenants
or provisions under the circumstances would violate the creditor's implied
covenant of good faith and fair dealing, and (E) with respect to provisions
herein to the effect that the failure to exercise or delay in exercising
rights or remedies will not operate as a waiver of any such rights or
remedies, or to the effect that provisions therein may only be waived in
writing to the extent that an oral agreement modifying such provisions
has been entered into.
(b) Eligibility of Accounts. Each Additional Account designated hereby
is, as of the end of the day immediately preceding the Addition Date, an
Eligible Additional Account.
(c) Selection Procedures. No selection procedures believed by the
Seller to be materially adverse to the interests of the Investor
Certificateholders (without regard to any Enhancement) were utilized in
selecting the Additional Accounts designated hereby from the available
Eligible Additional Accounts owned by the Seller.
(d) Insolvency. As of the Addition Date, the Seller is not insolvent
and, after giving effect to the conveyance set forth in Section 3 above,
will not be insolvent.
(e) Security Interest. This Assignment constitutes either (i) a valid
transfer and assignment to the Trustee, on behalf of the Trust, of all right,
title and interest of the Seller in and to (A) the Receivables now existing
and hereafter created in the Additional Accounts designated hereby, (B) all
monies due or to become due with respect to such Receivables (including all
Finance Charge Receivables), (C) all proceeds (as defined in the UCC as in
effect in the State of New York) of such Receivables, (D) Recoveries relating
to such Receivables, and (E) Interchange allocated to the Trust pursuant to
Section 2.5(k) of the Pooling and Servicing Agreement and all proceeds thereof,
and such Receivables, monies, proceeds, and Recoveries and Interchange
allocated to the Trust pursuant to Sections 2.5(k) and 2.5(l) of the Pooling
and Servicing Agreement will be held by the Trust free and clear of any Lien
of any Person claiming through or under the Seller or any of its Affiliates,
except for (x) Liens permitted under Section 2.5(b) of the Pooling and
Servicing Agreement and subject to Section 9-306 of the UCC as in effect in
the States of Connecticut or New York, whichever is applicable, (y) the
interest of People's Structured Finance Corp., a wholly-owned Connecticut
subsidiary of the Seller ("Finance Corp.") and its assignees as permitted
under the Pooling and Servicing Agreement as Holder of the Exchangeable
Seller Certificate and (z) the right of the Seller or Finance Corp. and their
respective assignees as permitted under the Pooling and Servicing Agreement
to receive interest accruing on, and investment earnings in respect of, the
Collection Account, or any Series Account as provided in the Pooling and
Servicing Agreement and any related Supplement; or (ii) a grant of a security
interest (as defined in the UCC as in effect in the State of New York) in such
property to the Trust, which is enforceable with respect to the existing
Receivables of the Additional Accounts designated hereby, the proceeds (as
defined in the UCC as in effect in the State of New York) thereof, and
Recoveries and Interchange allocated to the Trust with respect to such
Receivables pursuant to Sections 2.5(k) and 2.5(1) of the Pooling and
Servicing Agreement upon the conveyance of such Receivables to the Trust,
and which will be enforceable with respect to the Receivables thereafter
created in respect of Additional Accounts designated hereby, the proceeds (as
defined in the UCC as in effect in the State of New York) thereof, and
Recoveries and Interchange allocated to the Trust with respect to such
Receivables pursuant to Sections 2.5(k) and 2.5(1) of the Pooling and
Servicing Agreement, upon such creation; and (iii) if this Assignment
constitutes the grant of a security interest to the Trust in such property,
upon the filing of a financing statement as described in Section 3 above with
respect to the Additional Accounts designated hereby and, in the case of
Receivables hereafter created in such Additional Accounts, the proceeds (as
defined in the UCC as in effect in the State of New York) thereof, and
Recoveries and Interchange allocated to the Trust with respect to such
Receivables pursuant to Sections 2.5(k) and 2.5(1) of the Pooling and
Servicing Agreement, upon such creation, the Trust shall have a first
priority perfected security interest in such property, except for Liens
permitted under Section 2.5(b) of the Pooling and Servicing Agreement and
subject to Section 9-306 of the UCC as in effect in the States of Connecticut
or New York, whichever is applicable.
6. Conditions Precedent. The acceptance of the Trustee set forth in
Section 4 above and the amendment of the Pooling and Servicing Agreement set
forth in Section 7 below are subject to the satisfaction, on or prior to the
Addition Date, of the following conditions precedent:
(a) Officer's Certificate. The Seller shall have delivered to the
Trustee a certificate of a Vice President or more senior officer, certifying
that (i) all requirements set forth in Section 2.6 of the Pooling and
Servicing Agreement for designating Additional Accounts and conveying the
Principal Receivables of such Accounts, whether now existing or hereafter
created, have been satisfied and (ii) each of the representations and
warranties made by the Seller in Section 5 above is true and correct as of
the Addition Date. The Trustee may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard to the matters
set forth therein, and shall incur no liability in so relying.
(b) Opinion of Counsel. The Seller shall have delivered to the Trustee
an Opinion of Counsel with respect to the Receivables in the Additional
Accounts designated hereby substantially in the form attached hereto.
(c) Additional Information. The Seller shall have delivered to the
Trustee such information as was reasonably requested by the Trustee to satisfy
itself as to the accuracy of the representation and warranty set forth in
Section 5(d) above.
(d) Notice of Addition of Accounts. The Seller shall have provided the
Trustee, the Rating Agency, the Servicer and each Enhancement Provider (as
defined in, and if so provided in, each Supplement in connection with the
related Series) with the notice specified in Section 2.6(g)(i) of the Pooling
and Servicing Agreement, at the time specified therein, or shall have received
satisfactory acknowledgment or waivers thereof (which, in the case of a Rating
Agency, may take the form of a ratings confirmation letter satisfying the
applicable conditions specified in clause (e) below).
(e) Rating Agency Confirmation. The Seller shall have delivered to the
Trustee and (to the extent so provided in the applicable Supplement) each
Enhancement Provider, Standard and Poor's, Xxxxx'x and Xxxxx Investors
Service, L.P., confirmation in writing that the inclusion of the accounts
designated hereby as Additional Accounts pursuant to this Assignment will not
result in the reduction or withdrawal of such Rating Agency's then existing
rating on any Series of Investor Certificates then issued and outstanding.
7. Amendment of the Pooling and Servicing Agreement. The Pooling and
Servicing Agreement is hereby amended to provide that all references therein
to the "Pooling and Servicing Agreement," to "this Agreement" and "herein"
shall be deemed from and after the Addition Date to be a reference to the
Pooling and Servicing Agreement as supplemented by this Assignment. Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and effect
in accordance with its terms, and except as expressly provided herein, the
execution, delivery and performance of this Agreement shall not constitute
or be deemed to constitute a waiver of compliance with or a consent to
noncompliance with any term or provision of the Pooling and Servicing
Agreement.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties to separate counterparts), each of
which shall be an original, but all of which together shall constitute one
and the same instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF
LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
duly executed and delivered by their respective duly authorized officers on
the day and year first above written.
PEOPLE'S BANK
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BANKERS TRUST COMPANY, not in its individual capacity, but solely as Trustee
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Vice President
