GOTTSCHALKS CREDIT RECEIVABLES CORPORATION
Purchaser
and
GOTTSCHALKS INC.
Seller
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of March 1, 1999
Schedule I List of Accounts
AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT, dated as of March 1, 1999,
between GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION, a Delaware corporation, (the
"Purchaser"), and GOTTSCHALKS INC., a Delaware
corporation, (the "Seller").
W I T N E S S E T H:
WHEREAS, the Seller in the ordinary
course of its business finances the purchase
of merchandise by consumers pursuant to
consumer revolving credit card accounts
thereby generating certain payment
obligations; and
WHEREAS, the Seller desires to sell
certain existing and future payment
obligations from time to time to the
Purchaser, and the Purchaser desires to sell
such payment obligations to the Gottschalks
Credit Card Master Trust, pursuant to the
Pooling and Servicing Agreement dated as of
March 1, 1999 (the "Pooling and Servicing
Agreement"), among the Purchaser, as
depositor, the Seller, as servicer, and
Bankers Trust Company, as Trustee;
NOW, THEREFORE, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Capitalized terms
used herein but not otherwise defined shall
have the meanings set forth in the Pooling and
Servicing Agreement, including any outstanding
Series Supplement thereto. The term
Agreement means this Amended and Restated
Receivables Purchase Agreement, as the same
may from time to time be amended, supplemented
or otherwise modified.
SECTION 1.2. Other Definitional Provisions.
(a) The words "hereof", "herein" and
"hereunder" and words of similar import when
used in this Agreement shall refer to this
Agreement as a whole and not to any particular
provision of this Agreement. Article,
Section, Schedule, and Exhibit references are
references to Articles, Sections, Schedules
and Exhibits in or to this Agreement unless
otherwise specified; and the term "including"
shall mean "including without limitation".
(b) The definitions contained in this
Agreement are applicable to the singular as
well as the plural forms of such terms and to
the masculine as well as to the feminine and
neuter genders of such terms.
ARTICLE II
Conveyance of Receivables
SECTION 2.1. Conveyance of Receivables.
(a) By execution of this Agreement, the
Seller does hereby sell, transfer, assign, set
over and otherwise convey, without recourse
(except as expressly provided herein), to the
Purchaser, on the Cut-Off Date (a) all of the
Seller's right, title and interest in, to and
under the Receivables existing at the close of
business on the Cut-Off Date and all monies
due or to become due and all amounts received
with respect thereto and all proceeds thereof
(including recoveries and "proceeds", as such
term is defined in Section 9306 of the UCC as
in effect in the State of California and
Section 9-306 of the UCC as in effect in the
State of New York, as applicable) and (b) all
of the Seller's rights, remedies, powers and
privileges with respect to such Receivables.
Subject to Article V hereof, as of each
Business Day prior to the earlier of (x) the
occurrence of a Liquidation Event specified in
Section 9.02(b) of the Pooling and Servicing
Agreement and (y) the Trust Termination Date
(each, a "Purchase Date"), the Seller does
hereby sell, transfer, assign, set over and
otherwise convey, without recourse (except as
expressly provided herein), to the Purchaser,
all of the Seller's right, title and interest
in, to and under the Receivables (other than
Receivables that are (i) charged off as of the
date of transfer of such Receivables, (ii)
repurchased by the Seller from the Purchaser
(upon receipt of payment therefor in
accordance with Section 2.2 or 2.4 hereof, as
applicable), (iii) generated during a Block
Period in Blocked Accounts, (iv) generated in
a Removed Account from and after the
applicable Removal Date, as provided in
Section 2.06(c) of the Pooling and Servicing
Agreement or (iv) arising under charge
accounts acquired by Gottschalks in connection
with the acquisition of new stores or another
retailer, or originated by Gottschalks at such
stores (unless, at the Purchaser's option,
such charge accounts are included as Charge
Accounts for purposes of the Pooling and
Servicing Agreement) owned by the Seller at
the close of business on such Purchase Date
and not theretofore conveyed to the Purchaser,
all monies due or to become due and all
amounts received with respect thereto and all
proceeds thereof (including proceeds, as
defined in Section 9306 of the UCC as in
effect in the State of California and Section
9-306 of the UCC as in effect in the State of
New York, as applicable, and Recoveries). The
foregoing sale, transfer, assignment, set-over
and conveyance and any subsequent sales,
transfers, assignments, set-overs and
conveyances do not constitute, and are not
intended to result in, the creation or an
assumption by the Purchaser of any obligation
of the Servicer, the Seller or any other
Person in connection with the Accounts or the
Receivables or under any agreement or
instrument relating thereto, including any
obligation to any Obligors.
(b) In connection with such sale, transfer,
assignment, set-over and conveyance the Seller
agrees to record and file, at its own expense,
one or more financing statements on form UCC-1
or amendments and assignments of previously
filed financing statements, to perfect the
interest of the Purchaser in the Receivables
conveyed by this Amended and Restated
Receivables Purchase Agreement as a sale of
"accounts" (as defined in Section 9106 of the
UCC as in effect in the state where the
Seller's or the Servicer's chief executive
offices or books and records relating to the
Receivables are located) meeting the
requirements of applicable state law in such
form as and in each jurisdiction in which any
such filing may be necessary to perfect, and
maintain the perfection of, the sale transfer,
assignment, set-over and conveyance of the
Receivables to the Purchaser, and to file and
record any continuation statements necessary
to maintain the continued perfection of such
interest, in each case naming the Seller as
seller and the Purchaser as buyer with
respect to the Receivables described in the
preceding paragraph, and to deliver a file-
stamped copy of such financing statements,
amendments and continuation statements, or
other evidence of such filings, to the
Purchaser as soon as practicable after receipt
thereof by the Seller. The Purchaser shall be
under no obligation whatsoever to make any
filing under the UCC in connection with such
sales to the Purchaser.
(c) The Seller further agrees, at its own
expense, on or prior to the date on which each
Charge Account becomes an Account, to indicate
in its computer files that the Receivables
created in connection with such Account have
been sold to the Purchaser pursuant to this
Agreement and sold to the Trust pursuant to
the Pooling and Servicing Agreement for the
benefit of the Certificateholders and the
other Beneficiaries and (b) not less than
weekly, to deliver to the Purchaser a computer
file or microfiche or written list containing
a true and complete list of all Accounts
specifying for each Account (i) its account
number, (ii) the aggregate amount of
Receivables outstanding in such Account and
(iii) the aggregate amount of Principal
Receivables in such Account. Such file,
microfiche or list, as supplemented from time
to time, shall be marked as Schedule I to this
Agreement and is hereby incorporated into and
made a part of this Agreement.
(d) The "Purchase Price" with respect to
Receivables sold hereunder shall be as
follows: (i) on the Cut-Off Date, an amount
equal to $__________ less certain gross costs
and expenses related to such purchase and sale
of Receivables and (ii) on each Purchase Date
thereafter, a price agreed to by the Purchaser
and the Seller at the time of such purchase by
the Purchaser; provided, however, that such
Purchase Price shall not, in the opinion of
the Purchaser, be materially less favorable to
the Purchaser than prices for transactions of
a generally similar character at the time of
the purchase taking into account the quality
of such Receivables and other pertinent
factors; and provided, further, that such
consideration shall in any event not be less
than reasonably equivalent value therefor.
(e) The parties hereto agree that (A) the
Purchase Price payable on the Cut-Off Date
shall be paid in (i) cash to the extent
available therefor from the net proceeds of
the initial sale of securities issued by the
Trust formed pursuant to the Pooling and
Servicing Agreement and (ii) by a capital
contribution in the amount of the difference,
if any, between the amount of the net proceeds
of such initial sale and the Purchase Price
payable on the Cut-Off Date, and that the
Purchase Price payable on each Purchase Date
will be paid in cash to the extent of amounts
distributable to the Depositor for such
purpose pursuant to the Pooling and Servicing
Agreement on such Purchase Date and remaining
after application to all due and unpaid
obligations of the Depositor under the Pooling
and Servicing Agreement and (ii) by a capital
contribution in the amount of the difference,
if any, between the amounts so distributable
to the Depositor on such Purchase Date and the
Purchase Price payable on such Purchase Date
(the "Purchase Consideration").
(f) All payments hereunder shall be made not
later than the close of business (New York
City time) on the date specified therefor in
lawful money of the United States of America
in same day funds to the bank account
designated in writing by the Seller to the
Purchaser from time to time. Whenever any
payment to be made hereunder shall be stated
to be due on a day other than a Business Day,
such payment shall be made on the next
succeeding Business Day.
(g) Subject to Article V hereof, on each
Business Day, the Seller shall evidence the
sale, transfer, assignment, set over and
conveyance of all its Receivables not
theretofore conveyed to the Purchaser by
delivering to the Purchaser a receivables
transmittal (a Receivables Transmittal)
specifying to the Purchaser the aggregate
outstanding balance of such Receivables.
Upon the receipt by the Seller on
any Purchase Date of the Purchase
Consideration for the Receivables to be sold
by the Seller on such date, all the Seller's
right, title and interest in and to such
Receivables shall have been sold, assigned,
transferred, conveyed and set over to the
Purchaser, and the Seller hereby acknowledges
the release of all of its right to control
such Receivables except its right to control
such Receivables in its capacity as Servicer
under the Pooling and Servicing Agreement.
(h) The parties hereto intend that the
transfers of Receivables effected by this
Agreement shall be and shall be treated as a
purchase and receipt of a capital contribution
by the Purchaser and a sale and capital
contribution by the Seller of the Receivables
and not as a lending transaction. In the
event that, notwithstanding such express
intent of the parties, a court of competent
jurisdiction were to hold that this Agreement
evidences a loan rather than a sale and
capital contribution, then the Seller shall be
deemed to have granted to the Purchaser as of
the date hereof a security interest (as
defined in the UCC as in effect in California
and New York) in, to and under the Receivables
now existing and hereafter created, as
specified in Section 2.1(a), all monies due or
to become due with respect thereto and all
other proceeds of such Receivables (including
any Recoveries with respect thereto), which
grant is enforceable with respect to
Receivables and the proceeds thereof upon
execution and delivery of this Agreement, and
which will be enforceable with respect to such
Receivables hereafter created and the proceeds
thereof, upon such creation. If this
Agreement constitutes the grant of a security
interest to the Purchaser in such property,
upon the filing of the financing statements
described in this Section 2.1 and in the case
of the Receivables hereafter created and
proceeds thereof, upon such creation, the
Purchaser shall have a first priority security
interest in such property (subject to Section
9306 of the UCC as in effect in California),
free and clear of any Lien other than
Permitted Liens.
SECTION 2.2. Representations and Warranties
of the Seller Relating to the Seller and the
Agreement. The Seller hereby represents and
warrants to the Purchaser as of the date
hereof and as of each Closing Date as follows:
(a) Organization and Good Standing. The
Seller is a corporation duly organized and
validly existing and in good standing under
the law of the State of Delaware and has full
corporate power, authority and legal right to
own its properties and conduct its business as
such properties are presently owned and such
business is presently conducted, and to
execute, deliver and perform its obligations
under this Agreement.
(b) Due Qualification. The Seller is duly
qualified to do business and is in good
standing as a foreign corporation (or is
exempt from such requirement) and has obtained
all necessary licenses and approvals in each
jurisdiction in which the conduct of its
business requires such qualification except
where the failure to so qualify or be in good
standing or obtain licenses or approvals would
not have a material adverse effect on its
ability to perform its obligations hereunder.
(c) Due Authorization. The execution and
delivery of this Agreement and the
consummation of the transactions provided for
or contemplated by this Agreement have been
duly authorized by the Seller by all necessary
corporate action on the part of the Seller.
(d) No Conflict. The execution and delivery
by the Seller of this Agreement, the
performance by the Seller of the transactions
contemplated by this Agreement and the
fulfillment of the terms hereof and thereof
applicable to the Seller, will not conflict
with, result in any breach of any of the terms
and provisions of, or constitute (with or
without notice or lapse of time or both) a
material default under, any indenture,
contract, agreement, mortgage, deed of trust,
or other instrument to which the Seller is a
party or by which it or its properties are
bound.
(e) No Violation. The execution and delivery
of this Agreement by the Seller, the
performance by the Seller of the transactions
contemplated by this Agreement and the
fulfillment of the terms hereof and thereof
applicable to the Seller, will not conflict
with or violate any Requirements of Law
applicable to the Seller or give rise to an
adverse claim upon the Seller or the
Receivables.
(f) No Proceedings. There are no proceedings
or investigations, pending or, to the best
knowledge of the Seller, threatened against
the Seller, before any Governmental Authority
(i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the
consummation of any of the transactions
contemplated by this Agreement, (iii) seeking
any determination or ruling that, in the
reasonable judgment of the Seller, would
affect the performance by the Seller of its
obligations under this Agreement, (iv) seeking
any determination or ruling that would
materially and adversely affect the validity
or enforceability of this Agreement or (v)
seeking to affect adversely the income or
franchise tax attributes of the Trust and of
the Investor Certificates under the United
States Federal or any state income or
franchise tax systems. There are no
injunctions, writs, restraining orders or
other orders of any nature that would
adversely affect the performance by the Seller
of its obligations under this Agreement or the
transactions contemplated hereby.
(g) All Consents Required. All
authorizations, consents, orders, approvals or
other actions of any Person or of any
governmental body or official required in
connection with the execution and delivery by
the Seller of this Agreement, the performance
by the Seller of the transactions contemplated
by this Agreement, and the fulfillment by the
Seller of the terms hereof or thereof, have
been obtained.
(h) Enforceability. This Agreement has been
duly executed and delivered by the Seller and
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
by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar
laws now or hereafter in effect affecting the
enforcement of creditors' rights in general
and except as such enforceability may be
limited by general principles of equity
(whether considered in a suit at law or in
equity) and the availability of equitable
remedies.
(i) Place of Business; Legal Name. The
principal place of business of the Seller is
located in Fresno, California and the offices
where the Seller keeps its records concerning
the Receivables and related contracts are
located in Fresno, California and there have
been no other such locations during the prior
four month period. The legal name of the
Seller is as set forth in this Agreement, and
the Seller has no trade names, fictitious
names, assumed names or "doing business as"
names, except for "Village East" and
"▇▇▇▇▇▇/Gottschalks".
(j) Use of Proceeds. No proceeds of the sale
of any Receivables will be used by the Seller
to purchase or carry any margin security.
(k) Record of Accounts. Schedule I to this
Agreement (as in effect on the date in
question) is an accurate and complete listing
in all material respects of all of the
Accounts, and the information contained
therein with respect to the identity of such
Accounts and the Receivables existing
thereunder is true and correct in all material
respects.
(l) Tax Returns. The Seller has filed all
required tax returns on a timely basis.
(m) Compliance with Laws. The Seller has
complied with all applicable laws, rules,
regulations and orders in respect of the
conduct of its business and the ownership of
its properties and purchased assets, and has
maintained all applicable permits,
certifications, licenses and other rights of
whatever nature necessary for the conduct of
its business.
(n) Pension Plans. All pension or profit
sharing plans of the Seller and its
consolidated subsidiaries have been fully
funded in accordance with the Seller's
applicable pension or profit sharing plan
agreements.
(o) Solvency. The Seller (i) is not
insolvent and will not become insolvent after
giving effect to the transactions contemplated
hereby, (ii) is paying its debts as such debts
become due and (iii) after giving effect to
the transactions contemplated hereby, will
have adequate capital to conduct its business.
(p) Business Reasons for Sale. The Seller
has valid business reasons for selling the
Receivables to the Purchaser under this
Agreement and is not obtaining a loan secured
by the Receivables as collateral. The Seller
will to the fullest extent permitted by
generally accepted accounting principles and
by applicable law, record each purchase
hereunder as a sale on its books and records,
reflect each purchase in its financial
statements and tax returns as a sale and
recognize gain or loss, as the case may be, on
each purchase hereunder.
(q) No Material Adverse Effect. There has
been no material adverse change with respect
to the Seller's operations, including its
ability to perform its obligations under this
Agreement.
The representations and warranties
set forth in this Section 2.2 shall survive
the transfer and assignment of the Receivables
to the Purchaser. Upon discovery by the
Seller or the Purchaser of a breach of any of
the foregoing representations and warranties,
the party discovering such breach shall give
prompt written notice to the other party.
In the event of any breach of any of
the representations and warranties set forth
in this Section 2.2 and if, as a result of any
such breach, the Purchaser shall be obligated
to purchase the Investors' Interest and/or the
Depositor Interest pursuant to Section 2.03 of
the Pooling and Servicing Agreement, the
Seller shall repurchase such Investors'
Interest and/or Depositor Interest, as the
case may be, and shall pay to the Purchaser on
the Business Day preceding the Distribution
Date on which such purchase of the Investors'
Interest and/or the Depositor Interest, as
applicable, is to be made by the Purchaser an
amount equal to the purchase price therefor as
specified in Section 2.03 of the Pooling and
Servicing Agreement. The obligation of the
Seller to purchase such Investors' Interest
and/or Depositor Interest, as the case may be,
pursuant to this Section 2.2 shall constitute
the sole remedy against the Seller respecting
an event of the type specified in the first
sentence of this Section 2.2 available to the
Purchaser and to the Holders of the Investor
Certificates and/or the Holder of the
Exchangeable Certificate (or the Trustee on
behalf of such Certificateholders).
SECTION 2.3. Representations and Warranties
of the Seller Relating to the Receivables.
The Seller hereby represents and warrants to
the Purchaser as of the Cut-Off Date and each
Purchase Date that:
(a) No Liens. Each Receivable sold hereunder
has been conveyed to the Purchaser free and
clear of any Lien (except for Permitted Liens)
and the Purchaser has received good title to
each such Receivable.
(b) All Consents Required. All appraisals,
consents, orders, approvals, authorizations or
other actions of any Person or any
governmental body or official required in
connection with the conveyance of each
Receivable hereunder to the Purchaser have
been duly obtained and are in full force and
effect.
(c) Valid Sale. This Agreement constitutes a
valid sale, transfer, assignment, set-over and
conveyance to the Purchaser of all right,
title and interest of the Seller in and to the
Receivables described in Section 2.1(a)
hereof, all monies due or to become due with
respect thereto (including Finance Charge
Receivables), and all proceeds of such
Receivables (including Recoveries) and such
Receivables and all proceeds thereof will be
held by the Purchaser free and clear of any
Lien of any Person claiming through or under
the Seller or any of its Affiliates except for
Permitted Liens.
(d) Account or General Intangible. The
Seller has taken no action to cause any
Receivable sold hereunder to be anything other
than an "account" or "general intangible"
(each as defined in Section 9106 of the UCC as
in effect in the State of California and
Section 9-106 of the UCC as in effect in the
State of New York, as applicable). The Seller
has taken no action to evidence any Receivable
sold hereunder by any "instrument" or "chattel
paper" (each as defined in Section 9105 of the
UCC as in effect in the State of California
and Section 9-105 of the UCC as in effect in
the State of New York, as applicable).
The representations and warranties
set forth in this Section 2.3 shall survive
the transfer and assignment of the Receivables
to the Purchaser. Upon discovery by the
Seller or the Purchaser of a breach of any of
the representations and warranties set forth
in this Section 2.3, the party discovering
such breach shall give prompt written notice
to the other party.
SECTION 2.4. Repurchase of Receivables. In
the event any representation or warranty under
Section 2.3 is not true and correct as of the
date specified therein with respect to any
Receivable or Account and the Purchaser is, as
the result of any such breach, required to
accept a reassignment of such Receivable or
all Receivables in such Account pursuant to
Section 2.04(c) of the Pooling and Servicing
Agreement, then, within thirty (30) days (or
such longer period as may be agreed to by the
Purchaser) of the earlier to occur of the
discovery of any such event by the Seller or
the Purchaser, or receipt by the Seller or the
Purchaser of written notice of any such event
given by the Trustee or any Enhancement
Provider, the Seller shall repurchase the
Receivable or Receivables of which the
Purchaser is required to accept reassignment
pursuant to the Pooling and Servicing
Agreement on the Business Day preceding the
Determination Date on which such reassignment
is to occur.
The Seller shall purchase each such
Receivable pursuant to this Section 2.4 by
making a payment to the Purchaser in
immediately available funds on the Business
Day preceding the Determination Date on which
such reassignment is to occur in an amount
equal to the Purchase Price for such
Receivable. Upon payment of the Purchase
Price by delivery of such immediately
available funds, the Purchaser shall
automatically and without further action be
deemed to sell, transfer, assign, set over and
otherwise convey to the Seller, without
recourse, representation or warranty, all the
right, title and interest of the Purchaser in
and to such Receivable and all monies due or
to become due with respect thereto and all
proceeds thereof. The Purchaser shall execute
such documents and instruments of transfer or
assignment and take such other actions as
shall reasonably be requested by the Seller to
effect the conveyance of such Receivables
pursuant to this Section. The obligation of
the Seller to repurchase any such Receivable
shall constitute the sole remedy respecting
the event giving rise to such obligation
available to the Purchaser and to the
Certificateholders (or the Trustee on behalf
of Certificateholders).
SECTION 2.5. Covenants of the Seller. So
long as the Purchaser shall have any ownership
interest in any Receivables sold by the Seller
or until a termination date pursuant to
Section 5.01 shall have occurred, whichever is
later, the Seller covenants that:
(a) Receivables to be Accounts or General
Intangibles. The Seller shall take no action
to cause any Receivable sold hereunder to be
evidenced by any "instrument" or "chattel
paper" (each as defined in Section 9105 of the
UCC as in effect in the State of California
and Section 9-105 of the UCC as in effect in
the State of New York, as applicable). The
Seller shall take no action to cause any
Receivable sold hereunder to be anything other
than an "account" or "general intangible"
(each as defined in Section 9106 of the UCC as
in effect in the State of California and
Section 9-106 of the UCC as in effect in the
State of New York, as applicable). In the
event that any Receivable sold hereunder
shall, at any time, be evidenced by any
"instrument" or "chattel paper", the Seller
shall indicate or cause to be indicated on
such "instrument" or "chattel paper" a legend
stating that such Receivable has been conveyed
to the Purchaser pursuant to this Agreement
and conveyed to the Trust pursuant to the
Pooling and Servicing Agreement for the
benefit of the Certificateholders and other
Beneficiaries and shall deliver such
instrument or chattel paper to the Trustee to
be held thereby unless and until the Seller,
in its capacity as Servicer under the Pooling
and Servicing Agreement, requests in writing
the Trustee to return such instrument or
chattel paper to it (i) in connection with the
repurchase by or reassignment to the Seller of
the related Receivable or (ii) in connection
with its enforcement, as Servicer, of such
Receivable (in which case the writing to the
Trustee shall certify that return of such
instrument or chattel paper is necessary for
the conduct of such enforcement and that such
enforcement is being undertaken on behalf of
the Trust or Trustee).
(b) Negative Pledge. Except for the
conveyances hereunder, the Seller will not
sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or
suffer to exist any Lien (other than Permitted
Liens) on any Receivable sold hereunder,
whether now existing or hereafter created, or
any interest therein; the Seller will
immediately notify the Purchaser of the
existence of any Lien on any Receivable sold
hereunder; and the Seller shall defend the
right, title and interest of the Purchaser
(and of the Trustee as assignee and transferee
thereof under the Pooling and Servicing
Agreement) in, to and under the Receivables
sold hereunder, whether now existing or
hereafter created, against all claims of third
parties claiming through or under the Seller.
(c) Charge Account Agreements and Financial
Guidelines. The Seller shall comply with and
perform its obligations under any Charge
Account Agreement to which the Seller is a
party that relates to the Accounts and the
Financial Guidelines except insofar as any
failure to comply or perform would not
materially and adversely affect the rights of
the Trust or any of the Beneficiaries.
Subject to compliance with all Requirements of
Law, the Seller may change the terms and
provisions of such Charge Account Agreements
or the Financial Guidelines in any respect
(including the calculation of the amount or
the timing of charge-offs and the rate of the
finance charges, if any, assessed thereon)
only if (i) such change would not, in the
reasonable judgment of the Seller, cause an
Early Amortization Event to occur and, if the
Seller owns a comparable segment of revolving
credit card accounts which have
characteristics the same as, or substantially
similar to, the Accounts that are the subject
of such change, such change is made applicable
to such comparable segments of accounts or
(ii) the Seller shall reasonably determine
that such change is necessary in order to
satisfy any Requirement of Law.
(d) Conveyance of Accounts. The Seller
covenants and agrees that it will not convey,
assign, exchange or otherwise transfer any
Account to any Person prior to the termination
of this Agreement.
(e) Compliance with Laws, Etc. The Seller
shall comply in all material respects with all
applicable laws, rules, regulations and orders
applicable to the Receivables sold hereunder,
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.
(f) Preservation of Corporate Existence.
Except as provided in Section 4.1, the Seller
shall preserve and maintain in all material
respects its corporate existence, corporate
rights (charter and statutory) and corporate
franchises.
(g) Access to Certain Information Regarding
the Receivables. The Seller shall provide to
the Purchaser and its assigns and their agents
access to the documentation regarding the
Accounts and the Receivables, such access
being afforded without charge but only (i)
upon reasonable request, (ii) during normal
business hours, (iii) subject to the Seller's
normal security and confidentiality
procedures, and (iv) at offices designated by
the Seller. Nothing in this Section 2.5(g)
shall derogate from the obligation of the
Seller, the Purchaser or its assigns, or their
respective agents, to observe any applicable
law prohibiting disclosure of information
regarding the Obligors and the failure of the
Seller to provide access as provided in this
Section 2.5(g) as a result of such obligation
shall not constitute a breach of this Section
2.5(g).
(h) Keeping of Records and Books of Account.
The Seller shall maintain and implement, or
cause to be maintained or implemented,
administrative and operating procedures
reasonably necessary or advisable for the
collection of all such Receivables, and, until
the delivery to any Successor Servicer
appointed pursuant to the Pooling and
Servicing Agreement, keep and maintain, or
cause to be kept and maintained, all
documents, books, records and other
information reasonably necessary or advisable
for the collection of all such Receivables.
(i) Performance and Compliance with
Receivables and Charge Account Agreements.
The Seller shall at its expense take all
actions on its part reasonably necessary to
maintain in full force and effect its rights
under all Charge Account Agreements to which
the Seller is a party.
(j) Location of Records. The Seller shall
keep its chief place of business and chief
executive office, and the offices where it
keeps the records concerning the Receivables
and all underlying Charge Account Agreements
(and all original documents relating thereto),
at ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ or upon prior written notice to the
Purchaser, at such other locations in a
jurisdiction where all action required by
Section 2.5(m) shall have been taken and
completed and be in full force and effect.
The Seller shall at all times maintain its
principal executive office within the United
States of America.
(k) Furnishing Copies, Etc. The Seller shall
furnish to the Purchaser (i) upon the
Purchaser's request, a certificate of the
chief financial officer of the Seller
certifying, as of the date thereof, that no
termination event described in Section 5.1 has
occurred and is continuing and setting forth
the computations used by the chief financial
officer of the Seller in making such
determination; (ii) as soon as possible and in
any event within five days after the
occurrence of any such termination event or
event that upon notice or with the passage of
time or expiration of an applicable cure
period (or both) may become a termination
event, a statement of the chief financial
officer of the Seller setting forth details of
such termination event or event that with the
passage of time or expiration of an applicable
cure period (or both) may become a termination
event and the action that the Seller proposes
to take or has taken with respect thereto; and
(iii) promptly following the Purchaser's
request thereof, such other information,
documents, records or reports with respect to
the Receivables sold hereunder or the
underlying Charge Account Agreements or the
conditions or operations, financial or
otherwise, of the Seller, as the Purchaser may
from time to time reasonably request.
(l) Obligation to Record and Report. The
Seller shall to the fullest extent permitted
by generally accepted accounting principles
and by applicable law, record each purchase
hereunder as a sale on its books and records,
reflect each purchase in its financial
statements and tax returns as a sale and
recognize gain or loss, as the case may be, on
each purchase hereunder.
(m) Continuing Compliance with the Uniform
Commercial Code. The Seller shall, without
limiting the requirements of Section 2.5(o),
at its expense, preserve, continue, and
maintain or cause to be preserved, continued,
and maintained the Purchaser's valid and
properly protected title to each Receivable
sold hereunder free of any Lien other than
Permitted Liens, including, without
limitation, filing or recording UCC financing
statements, or amendments or assignments
thereof, or continuation statements in each
relevant jurisdiction.
(n) Collections of Receivables. The Seller
shall cause all Collections in respect of
Receivables sold hereunder to be processed in
accordance with the collection arrangements
set forth in Section 4.03 of the Pooling and
Servicing Agreement.
(o) Further Action Evidencing Purchases. (i)
The Seller agrees that from time to time, at
its expense, it will promptly execute and
deliver all further instruments and documents,
and take all further action, that may be
necessary or desirable or that the Purchaser
may reasonably request, to protect or more
fully evidence the Purchaser's ownership,
right, title and interest in the Receivables
sold by the Seller and its rights under the
Charge Account Agreements with respect
thereto, or to enable the Purchaser to
exercise or enforce any such rights. Without
limiting the generality of the foregoing, the
Seller will upon the request of the Purchaser
(A) execute and file such financing or
continuation statements, or amendments
thereto, and such other instruments or
notices, as may be necessary or, in the
opinion of the Purchaser, desirable, (B)
indicate on its books and records (including,
without limitation, originals and copies of
sale slips and billing statements, to the
extent practicable) that Receivables have been
sold and assigned by the Seller to the
Purchaser and by the Purchaser to the Trust
pursuant to the Pooling and Servicing
Agreement, and provide to the Purchaser, upon
request, copies of any such records and (C)
contact customers to confirm and verify
Receivables. The Seller hereby irrevocably
authorizes the Purchaser to file one or more
financing or continuation statements, and
amendments thereto, relative to all or any
part of the Receivables sold by the Seller, or
the underlying Charge Account Agreements with
respect thereto, without the signature of the
Seller where permitted by law. If the Seller
fails to perform any of its agreements or
obligations under this Agreement, the
Purchaser may (but shall not be required to)
perform, or cause performance of, such
agreements or obligations, and the expenses of
the Purchaser incurred in connection therewith
shall be payable by the Seller.
(p) Change in Business. The Seller shall not
make any change in the nature of its business
as conducted on the date hereof that could
reasonably be expected to have a material
adverse effect on the value or collectibility
of the Receivables.
(q) Account Allocations. In the event that
the Seller is unable for any reason to
transfer Receivables to the Purchaser, then
the Seller agrees that it shall allocate,
after the occurrence of such event, payments
on each affected Account with respect to the
principal balance of such Account first to the
oldest principal balance of such Account and
to have such payments applied as Collections
in accordance with the terms of the Pooling
and Servicing Agreement. The parties hereto
agree that Finance Charge Receivables,
whenever created, accrued in respect of
Principal Receivables which have been conveyed
to the Purchaser and by the Purchaser to the
Trust shall continue to be a part of the Trust
notwithstanding any cessation of the transfer
of additional Principal Receivables to the
Purchaser and Collections with respect thereto
shall continue to be allocated and paid in
accordance with Article IV of the Pooling and
Servicing Agreement.
(r) Operations of Seller. The Seller agrees
that it shall conduct its operations in such a
manner that the Purchaser would not be
substantively consolidated into the bankruptcy
estate of the Seller or have its separate
corporate existence disregarded in the event
of a bankruptcy of the Seller.
(s) Compliance with Certain Provisions of the
Pooling and Servicing Agreement. The Seller
agrees that it shall, as Servicer or Seller,
as applicable, comply with and observe the
provisions of Article III of the Pooling and
Servicing Agreement. The Seller further
agrees that it shall comply, as Seller, with
the meet and confer requirements set forth in
Section 8.06(b) of the Pooling and Servicing
Agreement.
SECTION 2.6. Customer Service Adjustments.
The Seller may accept a return of goods for
full or partial credit or make a daily
adjustment in the principal amount or finance
or other charges accrued or payable with
respect to the account of a customer who has
purchased merchandise or services on credit
under a Charge Account Agreement, provided
that such adjustment is permitted under the
Seller's applicable Financial Guidelines. The
aggregate amount of all such adjustments made
by the Seller during any Collection Period
shall be payable to the Purchaser by the
Seller in immediately available funds and
shall be due no later than the next succeeding
Determination Date.
ARTICLE III
Administration and Servicing of Receivables
SECTION 3.1. Acceptance of Appointment and
Other Matters Relating to the Servicer.
(a) The Seller agrees to act as the
Servicer under this Agreement and the Pooling
and Servicing Agreement, and the Purchaser
consents to the Seller acting as Servicer.
The Seller, as Servicer, will have ultimate
responsibility for servicing, managing and
making collections on the Receivables and for
holding such Receivables in trust for the
benefit of the Purchaser and the Trust. The
Seller, as Servicer, will have the authority
to make any management decisions relating to
such Receivables, to the extent such authority
is granted to the Servicer under this
Agreement and the Pooling and Servicing
Agreement.
(b) The Seller, as Servicer, shall
service and administer the Receivables sold
hereunder in accordance with the provisions of
the Pooling and Servicing Agreement.
(c) In the event that a Successor
Servicer is appointed pursuant to the Pooling
and Servicing Agreement, such Successor
Servicer shall act as Successor Servicer under
this Agreement and the Purchaser consents to
the appointment of such Successor Servicer
hereunder.
SECTION 3.2. Servicing Compensation. As
full compensation for its servicing activities
hereunder and under the Pooling and Servicing
Agreement, the Seller, as Servicer, shall be
entitled to receive the Servicing Fee on each
Distribution Date. The Servicing Fee shall be
paid in accordance with the terms of the
Pooling and Servicing Agreement.
SECTION 3.3. Allocations and Applications of
Collections and Other Funds. The Seller, as
Servicer, will apply all Collections with
respect to the Receivables sold hereunder and
all funds on deposit in the Collection Account
as described in Article IV of the Pooling and
Servicing Agreement.
SECTION 3.4. Other Actions Taken by the
Seller. The Seller hereby agrees that upon
the occurrence of an event described in
Section 10.01(e) of the Pooling and Servicing
Agreement with respect to the Seller, the
Seller hereby agrees to cause its customer
service employees to distribute envelopes to
Obligors for mail-in payments rather than
accepting In-Store Payments at the customer
service window.
ARTICLE IV
Other Matters Relating to the Seller
SECTION 4.1. Merger or Consolidation of,
or Assumption, of the Obligations of the
Seller. The Seller shall not consolidate with
or merge into any other corporation or convey
or transfer its properties and assets
substantially as an entirety to any Person,
unless:
(a) immediately after giving effect to any
such transaction, the consolidated tangible
net worth of the surviving person shall not
have materially decreased, determination to be
made on a pro forma basis after giving effect
to the proposed transaction; and
(b) the corporation formed by such
consolidation or into which the Seller is
merged or the Person which acquires by
conveyance or transfer the properties and
assets of the Seller substantially as an
entirety shall be a corporation organized and
existing under the laws of the United States
of America or any State thereof or the
District of Columbia and, if the Seller is not
the surviving entity, such corporation shall
expressly assume, by written agreement
supplemental hereto, executed and delivered to
the Purchaser, in form satisfactory to the
Purchaser, the performance of every covenant
and obligation of the Seller hereunder and
shall benefit from all the rights granted to
the Seller;
(c) the Seller shall have delivered to the
Purchaser and the Trustee (i) an Officers'
Certificate signed by a Vice President (or any
more senior officer) stating that such
consolidation, merger, conveyance or transfer
complies with this Section 4.1 and that all
conditions precedent herein provided for
relating to such transaction have been
complied with and (ii) an Opinion of Counsel
that such supplemental agreement is legal,
valid and binding and that the entity
surviving such consolidation, conveyance or
transfer is organized and existing under the
laws of the United States of America or any
State thereof or the District of Columbia;
(d) the Seller shall have delivered notice to
the Rating Agencies of such consolidation,
merger, conveyance or transfer and the Rating
Agency Condition shall have been satisfied;
and
(e) Consent of Certificateholders shall have
been obtained, which consent shall not be
unreasonably withheld in the event that the
Rating Agency Condition shall have been
satisfied.
provided, however, that notwithstanding the
provisions at this Section 4.1, the Seller
shall not merge into or convey or transfer its
properties and assets substantially as an
entirety to the Purchaser.
SECTION 4.2. Seller Indemnification of the
Purchaser. The Seller shall indemnify and
hold harmless the Purchaser, from and against
any loss, liability, expense, claim, damage or
injury suffered or sustained by reason of any
acts, omissions or alleged acts or omissions
arising out of activities of the Seller
pursuant to this Agreement (including, without
limitation, as Servicer hereunder) or arising
out of or based on the arrangement created by
this Agreement and the activities of the
Seller taken pursuant thereto (other than
collection losses on the Receivables or
amounts due with respect thereto, unless such
collection losses arise from a breach of a
representation or warranty by the Seller),
including any judgment, award, settlement,
reasonable attorneys' fees and other costs or
expenses incurred in connection with the
defense of any actual or threatened action,
proceeding or claim; provided, however, that
the Seller shall not indemnify the Purchaser
if such acts, omissions or alleged acts or
omissions constitute fraud, gross negligence
or willful misconduct by the Purchaser; and
provided, further, that the Seller shall not
indemnify the Purchaser for any liabilities,
cost or expense of the Purchaser with respect
to any Federal, state or local income or
franchise taxes (or any interest or penalties
with respect thereto) required to be paid by
the Purchaser in connection herewith to any
taxing authority. Any indemnification under
this Article IV shall survive the termination
of this Agreement.
ARTICLE V
Termination
SECTION 5.1. Termination. This Agreement
will terminate immediately after the Trust
terminates pursuant to the Pooling and
Servicing Agreement. In addition, the
Purchaser shall not sell and the Seller shall
not purchase Receivables hereunder following
the occurrence of a Liquidation Event or Early
Amortization Event relating to the insolvency
or bankruptcy of the Seller.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1. Amendment. (a) This Agreement
may be amended from time to time by the Seller
and the Purchaser without the consent of any
of the Certificateholders (but with notice to
the Rating Agency) to:
(i) add to the covenants of the Seller for
the benefit of the Certificateholders, or to
surrender any right or power conferred upon
the Seller herein; or
(ii) cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other
provision herein or in any Certificate.
provided, however, that such action shall
not adversely affect in any material respect
the interests of any Certificateholder or the
Holder of the Exchangeable Certificate.
(b) This Agreement may also be amended from
time to time by the Purchaser and Seller with
the consent of the Holders of Investor
Certificates evidencing more than 50% of the
aggregate unpaid principal amount of the
Investor Certificates of each materially
adversely affected Series for the purpose of
adding, eliminating or changing provisions;
provided, however, that no such amendment
shall (i) reduce in any manner the amount of
or delay the timing of any distributions to be
made to Certificateholders or deposits of
amounts to be so distributed without the
consent of each affected Certificateholder,
(ii) change the definition of or the manner of
calculating the interest of any
Certificateholders without the consent of each
affected Certificateholder, (iii) reduce the
aforesaid percentage required to consent to
any such amendment without the consent of each
Certificateholder or (iv) adversely affect the
rating of any Series or Class by any Rating
Agency without the consent of the Holders of
Investor Certificates of such Series or Class
evidencing more than 50% of the aggregate
unpaid principal amount of the Investor
Certificates of such Series or Class. Any
amendment to be effected pursuant to this
subsection (b) shall be deemed to materially
adversely affect all outstanding Series, other
than any Series with respect to which such
action shall not adversely affect in any
material respect the interests of any Holder
of Investor Certificates of such Series. The
Trustee may, but shall not be obligated to,
enter into any such amendment which affects
the Trustee's rights, duties or immunities
under this Agreement or otherwise.
(c) Promptly after the execution of any such
amendment or consent (other than an amendment
pursuant to subsection (a) above), the Seller
shall furnish notification of the substance of
such amendment to the Trustee, each
Certificateholder, each Enhancement Provider
and each Rating Agency.
(d) It shall not be necessary for the consent
of Certificateholders under this Section 6.1
to approve the particular form of any proposed
amendment, but it shall be sufficient if such
consent shall approve the substance thereof.
The manner of obtaining such consents and of
evidencing the authorization of the execution
thereof by Certificateholders shall be subject
to such reasonable requirements as the Trustee
may prescribe.
(e) Notwithstanding anything in this Section
6.1 to the contrary, no amendment may be made
to this Agreement which would adversely affect
in any material respect the interests of any
Enhancement Provider without the consent of
such Enhancement Provider.
SECTION 6.2. Limited Recourse.
Notwithstanding anything to the contrary
contained herein, the obligations of the
Purchaser hereunder shall not be recourse to
the Purchaser (or any person or organization
acting on behalf of the Purchaser or any
affiliate, officer or director of the
Purchaser), other than to any assets of the
Purchaser not pledged to third parties or
otherwise encumbered in a manner permitted by
the Purchaser's Certificate of Incorporation;
provided, however, that any payment by the
Purchaser made in accordance with this Section
6.2 shall be made only after payment in full
of any amounts that the Purchaser is obligated
to deposit in the Collection Account pursuant
to the Pooling and Servicing Agreement.
SECTION 6.3. No Petition. The Seller hereby
covenants and agrees that it will not at any
time institute, or join in instituting,
against the Purchaser any bankruptcy,
reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings
under any United States Federal or state
bankruptcy or similar law.
SECTION 6.4. Governing Law. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 6.5. Notices. All demands, notices
and communications hereunder shall be in
writing and shall be deemed to have been duly
given if personally delivered at or mailed by
registered mail, return receipt requested, to
the parties at such addresses specified in the
Pooling and Servicing Agreement.
SECTION 6.6. Severability of Provisions. If
any one or more of the covenants, agreements,
provisions or terms of this Agreement shall
for any reason whatsoever be held invalid,
then such covenants, agreements, provisions or
terms shall be deemed severable from the
remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way
affect the validity or enforceability of the
other provisions of this Agreement or of the
Certificates or rights of the
Certificateholders.
SECTION 6.7. Assignment. Notwithstanding
anything to the contrary contained herein,
this Agreement may not be assigned by the
Seller without the prior consent of the
Purchaser and the Trustee. The Purchaser may
assign its rights, remedies, powers and
privileges under this Agreement to the Trustee
on behalf of the Trust pursuant to the Pooling
and Servicing Agreement.
SECTION 6.8. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in
exercising, on the part of the Purchaser or
the Seller, as the case may be, any right,
remedy, power or privilege under this
Agreement shall operate as a waiver thereof;
nor shall any single or partial exercise of
any right, remedy, power or privilege under
this Agreement preclude any other or further
exercise thereof or the exercise of any other
right, remedy, power or privilege. The
rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of
any rights, remedies, powers and privileges
provided by law.
SECTION 6.9. Counterparts. This Agreement
may be executed in two or more counterparts
(and by different parties on separate
counterparts), each of which shall be an
original, but all of which together shall
constitute one and the same instrument.
SECTION 6.10. Third-Party Beneficiaries.
This Agreement will inure to the benefit of
and be binding upon the parties hereto, the
Certificateholders and the other Beneficiaries
and their respective successors and permitted
assigns. Except as otherwise provided in this
Agreement, no other Person will have any right
or obligation hereunder.
SECTION 6.11. Merger and Integration. Except
as specifically stated otherwise herein, this
Agreement sets forth the entire understanding
of the parties relating to the subject matter
hereof, and all prior understandings, written
or oral, are superseded by this Agreement.
This Agreement may not be modified, amended,
waived, or supplemented except as provided
herein.
SECTION 6.12. Headings. The headings herein
are for purposes of reference only and shall
not otherwise affect the meaning or
interpretation of any provision hereof.
SECTION 6.13. Rule 144A Information. For so
long as any of the Investor Certificates of
any Series or Class are restricted
securities within the meaning of Rule
144(a)(3) under the 1933 Act, the Seller
agrees to cooperate with the Purchaser to
provide to any Certificateholders of such
Series or Class and to any prospective
purchaser of Investor Certificates designated
by such Certificateholder, upon the request of
such Certificateholder or prospective
purchaser, any information required to be
provided to such holder or prospective
purchaser to satisfy the condition set forth
in Rule 144A(d)(4) under the 1933 Act.
IN WITNESS WHEREOF, the Seller and
the Purchaser have caused this Amended and
Restated Receivables Purchase Agreement to be
duly executed by their respective officers as
of the day and year first above written.
GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION, as Purchaser
By: \s\ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
GOTTSCHALKS INC.,
as Seller
By: \s\ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
SCHEDULE I
List of Accounts
The list of all Accounts specifying
for each Account, (i) its account number (ii)
the aggregate amount of Receivables
outstanding in such Account, and (iii) the
aggregate amount of Principal Receivables in
such Account has been delivered in the form of
computer tape. Such tape is incorporated
herein by this reference.
ARTICLE I Definitions.
SECTION 1.1. Definitions 1
SECTION 1.2. Other Definitional Provisions 1
ARTICLE II Conveyance of Receivables.
SECTION 2.1. Conveyance of Receivables 2
SECTION 2.2. Representations and Warranties of the
Seller Relating to the Seller and the
Agreement 4
SECTION 2.3. Representations and Warranties of the
Seller Relating to the Receivables 7
SECTION 2.4. Repurchase of Receivables 8
SECTION 2.5. Covenants of the Seller 8
SECTION 2.6. Customer Service Adjustments 12
ARTICLE III Administration and Servicing of Receivables.
SECTION 3.1. Acceptance of Appointment and Other
Matters Relating to the Servicer 12
SECTION 3.2. Servicing Compensation 13
SECTION 3.3. Allocations and Applications of
Collections and Other Funds 13
SECTION 3.4. Other Actions Taken by the Seller 13
ARTICLE IV Other Matters Relating to the Seller.
SECTION 4.1. Merger or Consolidation of, or
Assumption, of the Obligations
of the Seller 13
SECTION 4.2. Seller Indemnification of the
Purchaser 14
ARTICLE V Termination.
SECTION 5.1. Termination 14
ARTICLE VI Miscellaneous Provisions.
SECTION 6.1. Amendment 15
SECTION 6.2. Limited Recourse 16
SECTION 6.3. No Petition 16
SECTION 6.4. Governing Law 16
SECTION 6.5. Notices 16
SECTION 6.6. Severability of Provisions 16
SECTION 6.7. Assignment 16
SECTION 6.8. No Waiver; Cumulative Remedies 17
SECTION 6.9. Counterparts 17
SECTION 6.10. Third-Party Beneficiaries 17
SECTION 6.11. Merger and Integration 17
SECTION 6.12. Headings 17
SECTION 6.13. Rule144A Information 17
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