ASSIGNMENT NO. 11 TO TRUST
ASSIGNMENT NO. 11 (this "Assignment"), dated as of June 30, 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 described below:
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 Assignment No. 10 to Trust dated as of February 1, 1999
by and between Seller and Trustee ("Assignment No. 10"), Seller conveyed
Receivables of certain Additional Accounts identified by the 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 "3426" (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 June 30, 1999.
"Addition Notice Date" shall mean, with respect to the Additional Accounts
designated hereby, May 27, 1999.
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 "3426" (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
inthe 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, Moody's and Fitch 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/ Dennis J. Colwell
Name: Dennis J. Colwell
Title: Senior Vice President
BANKERS TRUST COMPANY, not in its individual capacity, but solely as Trustee
By: /s/ Peter Becker
Name: Peter Becker
Title: Assistant Secretary