LA1:909134.10
GOTTSCHALKS CREDIT CARD MASTER TRUST
AMENDMENT NO. 1
to
POOLING AND SERVICING AGREEMENT
and
SERIES 1999-1 SUPPLEMENT
each dated as of March 1, 1999
and each by and among
GOTTSCHALKS CREDIT RECEIVABLES CORPORATION,
as Depositor
GOTTSCHALKS INC.,
as Servicer
and
BANKERS TRUST COMPANY
as Trustee
November 16, 2000
THIS AMENDMENT NO. 1, dated as of
November 16, 2000 (this "Amendment"), by and
among GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION, a Delaware corporation, as
Depositor (the "Depositor"), GOTTSCHALKS INC.,
a Delaware corporation, as Servicer (the
"Servicer"), and BANKERS TRUST COMPANY, a New
York banking corporation, as Trustee (the
"Trustee"), is made for the purpose of
amending the Pooling and Servicing Agreement
dated as of March 1, 1999 (the "Pooling and
Servicing Agreement"), between the Depositor,
Servicer and Trustee and the Series 1999-1
Supplement thereto (the "Series 1999-1
Supplement").
RECITALS
WHEREAS, the parties hereto wish to
enter into this Amendment in order to amend
and supplement certain provisions of the
Pooling and Servicing Agreement and the Series
1999-1 Supplement relating to the calculation
of Series Allocation Percentages, the
amplification of certain representations and
warranties made by the Depositor, the
application of certain net investment earnings
on amounts held in the Collection Account and
to remove an ambiguity in the Pooling and
Servicing Agreement concerning the making of
amendments to the Pooling and Servicing
Agreement and supplements thereto; and
WHEREAS, the parties hereto intend
this Amendment to be effective only upon the
delivery of a consent by holders of more than
50% of the aggregate unpaid principal amount
of the Investor Certificates of Series 1999-1
(which constitutes the only outstanding Series
of Certificates as of the date hereof), which
consent is being delivered on the date hereof,
and the satisfaction of each of the other
conditions precedent to amendment pursuant to
Section 13.01(b)(ii) of the Pooling and
Servicing Agreement;
NOW, THEREFORE, in consideration of
the premises and the mutual covenants herein
contained, the parties hereto agree as
follows:
Section 1. Definitions. For all
purposes of this Amendment, unless otherwise
defined herein, all capitalized terms used
herein shall have the meanings attributed to
them in the Pooling and Servicing Agreement.
Section 2. Amendment to Definitions
in the Pooling and Servicing Agreement.
Section 1.01 of the Pooling and Servicing
Agreement is hereby amended by the replacement
of the following enumerated definitions of
"Adjusted Invested Amount" and "Series
Allocation Percentage" with the following
definitions:
"Adjusted Invested Amount" shall
mean, as of any date, the Required Series
Pool Balance specified in the related
Supplement as of such date; provided
that, if so specified in the related
Supplement, the Adjusted Invested Amount
for any Series may be calculated as a
different amount for purposes of
allocating Finance Charge Collections,
Principal Collections or Default Amounts
as between Series of Certificates and
depending on whether the date of
determination is during the Revolving
Period, Controlled Amortization Period
(as defined in the related Supplement) or
Early Amortization Period for such
Series, except that in each case any
change to the Adjusted Invested Amount
that results from an increase or decrease
in the outstanding balance of any
Certificate will affect allocation
percentages only from the date of such
change.
"Series Allocation Percentage" shall
mean for each Series as of any date of
determination, the ratio (expressed as a
percentage) of (i) the Adjusted Invested
Amount for such Series to (ii) the sum of
the Adjusted Invested Amounts for all
outstanding Series of Certificates, in
each case determined based on the type of
allocation being made and the period
during which such allocation is being
made.
Section 3. Amendment of Section
2.04(a) of Pooling and Servicing Agreement.
(a) Section 2.04(a) is amended by the addition
thereto of a clause (v) that reads as follows:
"(v) Each Receivable conveyed
hereunder was originated by Gottschalks, is
being serviced by Gottschalks and was sold by
Gottschalks to the Depositor under the
Receivables Purchase Agreement in compliance
with all laws, rules, regulations and orders
applicable to Receivables originated by
Gottschalks, including, without limitation,
rules and regulations relating to truth in
lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt
collection practices and privacy, where
failure to so comply could reasonably be
expected to have a material adverse effect on
the amount of Collections thereunder."
(b) The last sentence of Section
2.04(a)(iii) is hereby replaced by the
following sentence:
"If this Agreement constitutes the
grant of a security interest to the Trust
in such property, upon the filing of the
financing statement described in Section
2.01 and in the case of the Receivables
hereafter created and proceeds thereof,
upon such creation, the Trust shall have
a first priority perfected security
interest in such property (subject to
Section 9306 of the UCC as in effect in
the State of California), free and clear
of any Lien of any Person claiming
through or under the Depositor or any of
its Affiliates, except for Permitted
Liens."
Section 4. Amendment of Section
4.02 of Pooling and Servicing Agreement. The
third sentence of the Second paragraph of
Section 4.02 is hereby replaced by the
following sentence:
Each Business Day, all interest and
other investment income (net of losses
and investment expenses) earned on funds
on deposit in the Collection Account will
be released to the Depositor, unless the
Depositor has notified the Trustee in
writing that it elects to cause such
amounts to be retained in the Collection
Account and to be available, as of the
related Determination Date and
Distribution Date, for allocation and
application as Finance Charge Collections
for purposes of the definition of
"Deficiency Amount" in each Supplement
and for purposes of making corresponding
distributions or applications on such
related Distribution Date.
Section 5. Amendment to
Definitions in the Series 1999-1 Supplement.
Section 2.1 of the Series 1999-1 Supplement is
hereby amended by the replacement of the
enumerated definitions of "Allocation Day,"
"Investor Default Amount," "Investor
Investment Proceeds," "Portfolio Yield,"
"Required Series Pool Balance," "Series 1999-1
Allocation Percentage," "Series Default
Amount," "Series Finance Charge Collections"
and "Series Principal Collections" with the
following definitions:
"Allocation Day" means each day
during a Collection Period that
Gottschalks is open for business (which
currently excludes only Easter,
Thanksgiving and Christmas); provided
that Gottschalks will immediately notify
the Trustee and each Certificateholder in
writing of any change with respect to the
days on which Gottschalks is open for
business.
"Default Amount" shall mean, (i)
with respect to any Allocation Day during
a Collection Period, the aggregate amount
of Receivables recognized as becoming
Defaulted Receivables since the beginning
of the preceding Allocation Day but prior
to the beginning of the current
Allocation Day and (ii) with respect to
any Collection Period, means the
aggregate amount of Receivables
recognized as becoming Defaulted
Receivables during such Collection
Period.
"Investor Default Amount" shall
mean, (i) with respect to any Allocation
Day during a Collection Period, an amount
equal to the product of (a) the Default
Amount recognized by the Servicer on such
Allocation Day or, as required by the
context, an amount equal to the sum of
such amount plus such amount for each
prior Allocation Day during such
Collection Period, (b) the Floating
Allocation Percentage for the Related
Collection Period and (c) the Series 1999-
1 Allocation Percentage applicable to the
allocation of Default Amounts on such
Allocation Day, and (ii) with respect to
any Distribution Date, an amount equal to
the aggregate amount allocated as
Investor Default Amounts on each day
during the related (or, as applicable,
such) Collection Period.
"Investor Investment Proceeds" shall
mean, with respect to any Distribution
Date, all interest and other investment
earnings (net of losses and investment
expenses) on funds on deposit in the
Series Accounts as of the related
Determination Date, together with an
amount equal to the product of (i) the
Series 1999-1 Allocation Percentage
applicable to the allocation of Finance
Charge Collections as of such
Determination Date and (ii) the amount of
interest and other investment earnings
(net of losses and investment expenses)
on funds held in the Collection Account
credited as of such Determination Date
pursuant to Section 4.02 of the Pooling
and Servicing Agreement (to the extent
that the Depositor has directed the
Trustee to retain such amounts rather
than releasing them to the Depositor as
permitted by Section 4.02 of the Pooling
and Servicing Agreement).
"Portfolio Yield" means, with
respect to any Collection Period, the
annualized percentage equivalent of a
fraction (a) the numerator of which is
Series Finance Charge Collections for
such Collection Period less Series
Default Amounts for such Collection
Period and (b) the denominator of which
is the average of the Series Pool Balance
as of the open of business on each day
during such Collection Period.
"Required Series Pool Balance" shall
mean, as of any date of determination,
the sum of (a) the Fixed Base Invested
Amount on such date and (b) the
Subordinated Invested Amount on such
date; except that for purposes of
determining the Series 1999-1 Allocation
Percentage with respect to the allocation
of Principal Collections, during a
Collection Period that commences after
the termination of the Revolving Period,
the Required Series Pool Balance on such
date of determination shall be equal to
the Required Series Pool Balance
calculated as of the first day of the
last Collection Period to commence prior
to the termination of the Revolving
Period.
"Series Default Amount" shall mean,
(i) with respect to any Allocation Day
during a Collection Period, an amount
equal to the product of (a) the Default
Amount recognized by the Servicer on such
Allocation Day and (b) the Series 1999-1
Allocation Percentage applicable to the
allocation of Default Amounts on such
Allocation Day, and (ii) with respect to
any Distribution Date or Collection
Period, an amount equal to the aggregate
amount allocated as Series Default
Amounts on each day during the related
(or, as applicable, such) Collection
Period.
"Series Finance Charge Collections"
shall mean, with respect to any
Allocation Day during a Collection
Period, the product of (i) the aggregate
amount of Finance Charge Collections
received since the beginning of the
preceding Allocation Day but prior to the
beginning of the current Allocation Day
and (ii) the Series 1999-1 Allocation
Percentage applicable to the allocation
of Finance Charge Collections on such
Allocation Day.
"Series 1999-1 Allocation
Percentage" shall mean the Series
Allocation Percentage for Series 1999-1
as calculated in accordance with the
Agreement.
"Series Principal Collections" shall
mean, with respect to any Allocation Day
during a Collection Period, the product
of (i) the aggregate amount of Principal
Collections received since the beginning
of the preceding Allocation Day but prior
to the beginning of the current
Allocation Day and (ii) the Series 1999-1
Allocation Percentage applicable to the
allocation of Principal Collections on
such Allocation Day.
Section 6. Amendment to Section
4.1(b) of the the Series 1999-1 Supplement.
The clause in the first sentence of Section
4.1(b) which currently reads, "At the
beginning of each Business Day (an "Allocation
Day")," is replaced with the following: "At
the beginning of each Allocation Day,".
Section 7. Amendment to Section
13.01 of the Pooling and Servicing Agreement.
The following clause is added at the end of
13.01(b)(i) of the Pooling and Servicing
Agreement: "without the consent of each
affected Certificateholder." The parties
hereto agree that the absence of the foregoing
clause results in an ambiguity about the scope
of amendments that are permitted with the
consent of affected Certificateholders
pursuant to Section 13.01(b)(ii), (iii), (iv)
and (v), one or more of which, although
permitted by Section 13.01(b)(ii), (iii), (iv)
and (v), might appear to violate 13.01(b)(i).
In particular, amendments contemplated by this
Amendment which would be permitted by Section
13.01(b)(ii) arguably might contravene Section
13.01(b)(i). As a result, Section 13.01(b)(i)
is inconsistent with the lead-in language of
Section 13.01(b) and the language of clauses
(ii), (iii), (iv) and (v) of Section 13.01(b).
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blank.]
IN WITNESS WHEREOF, the Depositor, the
Servicer and the Trustee have caused this
Amendment to be duly executed by their
respective officers as of the day and year
first above written.
GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION, Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President & CEO
GOTTSCHALKS INC., Servicer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President & CEO
BANKERS TRUST COMPANY, Trustee
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: ASSISTANT VICE PRESIDENT