ASSIGNMENT NO. 4 TO TRUST
ASSIGNMENT NO. 4 (this "Assignment"), dated as of October 1, 1996,
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 (defined below).
W I T N E S S E T H
WHEREAS, the Seller and the Trustee are parties to the Pooling and
Servicing Agreement, dated as of June 1, 1993 (hereinafter as such agreement
may have been, or may from time to time be, amended, 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); and
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; and
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 the Pooling and Servicing Agreement, the Seller
again wishes to designate certain Additional Accounts of the Seller,
identified by the code "3181," 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, October 1, 1996.
"Addition Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, September 6, 1996.
2. Designation of Additional Accounts. The Seller shall deliver to
the Trustee, on behalf of the Trust, not later than five Business Days 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 code "3181" in the dependent number
field. 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 allocated to the Trust in respect of 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 code "3181"
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
allocated to the Trust in respect of 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 allocated
to the Trust in respect of such Receivables, and (E) 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, 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 the Seller 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 and its 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 pursuant to
Sections 2.5(k) and (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 pursuant to Sections 2.5(k) and (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 pursuant to Sections 2.5(k) and (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 and Moody's 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/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY, not in its individual capacity, but solely as Trustee
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Vice President
