ASSIGNMENT NO. 10 TO TRUST
ASSIGNMENT NO. 10 (this "Assignment"), dated as of February 1, 1999,
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 Assignment No. 7 to Trust dated as of
November 1, 1997 by and between Seller and Trustee ("Assignment No. 7"),
Seller conveyed Receivables of certain Additional Accounts 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 the Trust as part of the corpus of the Trust;
WHEREAS, pursuant to Assignment No. 8 to Trust dated as of
February 2, 1998 by and between Seller and Trustee ("Assignment No. 8"),
Seller conveyed Receivables of certain Additional Accounts identified by the
code "4207" (excluding roll-up agent bank identified by the code 8999) to
the Trust as part of the corpus of the Trust;
WHEREAS, pursuant to Reassignment No. 1 of Removed Accounts dated
as of March 2, 1998 by and between Seller and Trustee, Seller removed
Receivables of certain Accounts and caused Trustee to reconvey the
Receivables of such Accounts from the Trust to Seller;
WHEREAS, pursuant to Reassignment No. 2 of Removed Accounts dated
as of May 28, 1998 by and between Seller and Trustee, Seller removed
Receivables of certain Accounts and caused Trustee to reconvey the
Receivables of such Accounts from the Trust to Seller;
WHEREAS, pursuant to Assignment No. 9 to Trust dated as of
June 30, 1998 by and between Seller and Trustee ("Assignment No. 9"),
Seller conveyed Receivables of certain Additional Accounts identified by the
codes and consisting of the agent banks describedbelow:
code "0519" (excluding the roll-up agent bank identified by the code 8999);
code "0561" (excluding the roll-up agent bank identified by the code 8999);
code "3425" (excluding the roll-up agent bank identified by the code 8999);
code "3428" (excluding the roll-up agent bank identified by the code 8999);
code "3429" (excluding the roll-up agent bank identified by the code 8999);
code "4125" (excluding the roll-up agent bank identified by the code 8999);
code "4126" (excluding the roll-up agent bank identified by the code 8999);
code "4127" (excluding the roll-up agent bank identified by the code 8999);
code "3427" (excluding the roll-up agent bank identified by the code 8999);
to the Trust as part of the corpus of the Trust;
WHEREAS, pursuant to the Pooling and Servicing Agreement, Seller
again wishes to designate certain Additional Accounts of the Seller,
identified by the code "3427" (excluding the roll-up agent bank identified
by the code 8999) 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, as of the close of business on February 1, 1999.
"Addition Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, December 21, 1998.
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 the code "3427" (excluding the roll-up agent bank identified
by the code 8999).
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, as of the close of business 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 asdescribed 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, ▇▇▇▇▇'▇ and ▇▇▇▇▇ IBCA, Inc.,
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: Vice President
BANKERS TRUST COMPANY, not in its individual capacity, but solely as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary