ASSIGNMENT NO. 5 TO TRUST
ASSIGNMENT NO. 5 (this "Assignment"), dated as of May 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 of the Seller,
identified by the code "3181" 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" (excluding roll-up agent banks identified by the
codes 1997 and 2997), 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, May 1, 1997.
"Addition Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, April 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
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, excluding roll-up agent banks identified by the
codes 1997 and 2997. 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, excluding roll-up agent banks
identified by the codes 1997 and 2997, 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