ASSIGNMENT NO. 6 TO TRUST
ASSIGNMENT NO. 6 (this "Assignment"), dated as of August 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 (defined 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 (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; and
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Seller again wishes to designate certain Additional Accounts of the Seller,
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 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, August 1, 1997.
"Addition Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, July 3, 1997.
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 "3180" in the dependent number
field, 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. 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 "3180" 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 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 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 ▇▇▇▇▇ 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
BANKERS TRUST COMPANY, not in its individual capacity, but solely as Trustee
By:/s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President