LA1:817659
GOTTSCHALKS CREDIT RECEIVABLES CORPORATION
Depositor
GOTTSCHALKS INC.
Servicer
and
BANKERS TRUST COMPANY
Trustee
SERIES 1999-1 SUPPLEMENT
Dated as of March 1, 1999
to
POOLING AND SERVICING AGREEMENT
Dated as of Xxxxx 0, 0000
XXXXXXXXXXX CREDIT CARD MASTER TRUST
TABLE OF CONTENTS
ARTICLE I
CREATION OF THE SERIES 1999-1 CERTIFICATES
SECTION 1.1.Designation. 1
ARTICLE II
DEFINITIONS
SECTION 2.1.Definitions. 1
ARTICLE III
SERVICING FEE
SECTION 3.1.Servicing Compensation 12
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
SECTION 4.1.Allocations and Distributions 13
SECTION 4.2.Determination of FBC Monthly
Interest 23
SECTION 4.3.Determination of FBC Monthly
Principal. 24
SECTION 4.4.Series Accounts. 24
SECTION 4.5.Capitalized Interest Account 27
SECTION 4.6.Retained Amount Account. 27
SECTION 4.7.Spread Account 28
SECTION 4.8.Deficiency Amount. 30
SECTION 4.9.Investor Charge-Offs. 30
SECTION 4.10.Trustee Expenses Associated with Servicing Assumption 31
ARTICLE V
DISTRIBUTIONS AND REPORTS
SECTION 5.1.Distributions 32
SECTION 5.2.Other Notices to Holders. 32
ARTICLE VI
THE CERTIFICATES
SECTION 6.1.The Fixed Base Certificates. 32
SECTION 6.2.Transfer Restrictions. 32
SECTION 6.3.The Subordinated Certificate 35
SECTION 6.4.The Exchangeable Certificate 36
ARTICLE VII
EARLY AMORTIZATION EVENTS; SERVICER DEFAULTS;
MERGER OF SERVICER
SECTION 7.1.Additional Early Amortization
Events. 36
SECTION 7.2.Waiver 37
SECTION 7.3.Additional Servicer Defaults 38
SECTION 7.4.Merger or Consolidation of, or
Assumption of, the Obligations of
the Servicer 39
ARTICLE VIII
OPTIONAL REPURCHASE
SECTION 8.1.Optional Xxxxxxxxxx 00
ARTICLE IX
FINAL DISTRIBUTIONS
SECTION 0.0.Xxxxx Distributions 39
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Ratification of Agreement 41
SECTION 10.2. Counterparts 41
SECTION 10.3. Governing Law 41
SECTION 10.4. Rating Agency Notice 41
SECTION 10.5. Additional Document Delivery on
First Distribution Date 41
EXHIBITS
EXHIBIT A-1 Form of Fixed Based Certificate
EXHIBIT A-2 Form of Subordinated Certificate
EXHIBIT B Form of Distribution Date Statement
EXHIBIT C Form of Rule 144A Transferee Certificate
EXHIBIT D Form of Non Rule 144A Representation Letter
SCHEDULES
SCHEDULE I List of Series Accounts
SERIES 1999-1 SUPPLEMENT dated as of
March 1, 1999 (the Series Supplement), among
GOTTSCHALKS CREDIT RECEIVABLES CORPORATION, a
Delaware corporation, as Depositor,
GOTTSCHALKS INC., a Delaware corporation, as
Servicer, and BANKERS TRUST COMPANY, a New
York banking corporation, not in its
individual capacity but solely as Trustee.
RECITALS
Section 6.03 of the Pooling and
Servicing Agreement, dated as of March 1,
1999, among the Depositor, the Servicer and
the Trustee (the Agreement), provides, among
other things, that the Depositor may from time
to time direct the Trustee to authenticate and
deliver, on behalf of the Trust, one or more
new Series of Investor Certificates
representing fractional undivided interests in
the Trust and in connection therewith to enter
into Series Supplements with the Servicer and
the Trustee to provide for the issuance,
authentication and delivery of a new Series of
Investor Certificates and to specify the
Principal Terms thereof. Pursuant to this
Series Supplement, the Depositor and the
Trustee on behalf of the Trust shall hereby
create a new Series of Investor Certificates
and specify the Principal Terms thereof.
ARTICLE I
Creation of the Series 1999-1 Certificates
SECTION 1.1. Designation. There is hereby
created a Series of Investor Certificates to
be issued pursuant to the Agreement and this
Series Supplement to be known as the
Gottschalks Credit Card Master Trust, Series
1999-1 Certificates. The Series 1999-1
Certificates will be issued in two
certificated Classes, the first of which shall
be known as the 7.664% Fixed Base Credit Card
Certificates, Series 1999-1; and the second
of which shall be known as the Subordinated
Certificate, Series 1999-1.
(a) In the event that any term or provision
contained herein shall conflict with or be
inconsistent with any term or provision
contained in the Agreement, the terms and
provisions of this Series Supplement shall
govern.
ARTICLE II
Definitions
SECTION 2.1. Definitions. (a) Whenever
used in this Series Supplement, the following
words and phrases shall have the following
meanings.
Accelerated Payment shall mean any
FBC Principal Collections that are paid to the
Fixed Base Certificateholders during the
Controlled Amortization Period (in excess of
any then current Controlled Amortization
Amount) or otherwise prior to the Expected
Final Distribution Date due to the
commencement of an Early Amortization Period
on any date other than as a result of the
occurrence of a Servicer Default pursuant to
clauses (d) and (f) of Section 7.3.
Adjusted Invested Amount shall
mean, as of any date, an amount equal to the
Required Series Pool Balance.
Allocation Day shall have the
meaning specified in Section 4.1(b) hereof.
Applicable Interest Rate shall
mean, as of any date of determination and for
any Investor Certificate, the per annum
interest rate applicable to such Investor
Certificate as of such date.
Capitalized Interest Account shall
have the meaning specified in Section 4.4 and
Section 4.5 hereof. Deposits into and
withdrawals from the Capitalized Interest
Account shall be made in accordance with the
provisions of Section 4.5 hereof.
Certificates shall mean,
collectively, the Fixed Base Certificates and
the Subordinated Certificate.
Closing Date shall mean March 1,
1999.
Controlled Amortization Amount
means one-twelfth of the Fixed Base Invested
Amount on the Controlled Amortization Date.
Controlled Amortization Date means
August 1, 2003.
Controlled Amortization Period
shall mean, unless an Early Amortization
Period shall have commenced prior thereto, the
period commencing on the day immediately
following the last day of the Revolving
Period, and ending upon the first to occur of
(a) the commencement of an Early Amortization
Period, (b) the payment in full to the Fixed
Base Certificateholders of the Fixed Base
Invested Amount and any unreimbursed FBC
Investor Charge-Offs and (c) the Expected
Final Distribution Date.
Credit Watch shall mean the
publication by the Rating Agency of a report
indicating that the Fixed Base Certificates
are being monitored for possible upgrade or
downgrade, and Credit Watch with negative
implications shall mean the publication by
the Rating Agency of a report indicating that
the Fixed Base Certificates are being
monitored for possible downgrade.
Default Amount with respect to any
Collection Period, means the aggregate amount
of Receivables which become Defaulted
Receivables during such Collection Period.
Default Rate with respect to any
Collection Period, means the annualized
percentage equivalent of a fraction, the
numerator of which is the Default Amount for
such month and the denominator of which is the
Pool Balance as of the first day of such
month.
Deficiency Amount shall mean, with
respect to any Distribution Date, the amount,
if any, by which (i) the sum of (A) the
Monthly Senior Servicing Fee for the Related
Distribution Date, (B) the FBC Monthly
Interest for the Related Interest Period, (C)
all FBC Carryover Interest for the Related
Interest Period, and (D) the Investor Default
Amount, if any, for the Related Collection
Period, exceeds (ii) the sum of (A) the
Investor Finance Charge Collections retained
in the Collection Account during the Related
Collection Period pursuant to Section
4.1(c)(ii), (B) the Investor Finance Charge
Collections retained in the Collection Account
pursuant to Section 4.1(c)(iii) during the
Related Collection Period, (C) the Investor
Finance Charge Collections retained in the
Collection Account pursuant to Section
4.1(c)(iv) during the Related Collection
Period and (D) the Investor Investment
Proceeds on deposit in the Collection Account
on such Determination Date.
Delinquency Rate with respect to
any Collection Period, means the percentage
equivalent of a fraction, the numerator of
which is the aggregate of the balances of
Eligible Receivables that are 60 or more days
Contractually Delinquent as of the last day of
such month, and the denominator of which is
the Pool Balance as of the last day of such
month.
Distribution Date shall mean the
fifteenth day of each month (or, if such day
is not a Business Day, the next succeeding
Business Day), commencing April 15, 1999.
Early Amortization Event for
Series 1999-1 shall mean any Early
Amortization Event specified in Section 9.01
of the Agreement, together with any additional
Early Amortization Event specified in Section
7.1 hereof.
Eligible Past Due Receivables
shall mean any Receivable that is 120 or more
days Contractually Delinquent but has not been
classified as a Defaulted Receivable such
that, but for the operation of clause (h) of
the definition of Eligible Receivables, it
would be classified as an Eligible
Receivable.
Excess Spread means the annualized
percentage equivalent of a fraction, (a) the
numerator of which is Investor Finance Charge
Collections for such month less (i) the amount
of accrued Monthly Senior Servicing Fees for
such month, (ii) interest accrued on the Fixed
Base Certificates during such month and (iii)
the Investor Default Amount for such month,
and (b) the denominator of which is the
Required Series Pool Balance as of the close
of business on the Distribution Date during
such month.
Exchangeable Component shall mean,
as of any time of determination, in the case
of the Retained Amount Account, the amount set
forth as of such time on the ledger maintained
by the Servicer in accordance with Section
4.4(e) hereof as representing the net balance
of deposits made to the Retained Amount
Account pursuant to Section 4.6(a)(i) hereof
less amounts withdrawn therefrom in accordance
with Section 4.6.
Exchangeable Holder's Interest
means, for purposes of making allocations of
Series Finance Charge Collections, Series
Principal Collections or Default Amounts
allocated to any Series, the difference (but
not less than zero) between the Series Pool
Balance and the Required Series Pool Balance.
Exchangeable Holder's Percentage
means, for purposes of making any allocation
as to which the Floating Allocation Percentage
is applicable, 100% minus the Floating
Allocation Percentage, and for purposes of
making any allocation as to which the
Fixed/Floating Allocation Percentage is
applicable, 100% minus the Fixed/Floating
Allocation Percentage, provided that in any
case the Exchangeable Holder's Percentage
shall not be less than zero.
Expected Final Distribution Date
means the August 2004 Distribution Date.
FBC Additional Interest shall have
the meaning specified in Section 4.2 hereof.
FBC Allocation Percentage shall
mean, with respect to any Collection Period,
the percentage equivalent of a fraction, the
numerator of which is the Fixed Base Invested
Amount and the denominator of which is the
Required Series Pool Balance, in each case, as
of the first day of such Collection Period.
FBC Carryover Interest shall mean,
for any Collection Period, an amount equal to
the sum of (a) the amount of any FBC Monthly
Interest previously due but not distributed on
the Fixed Base Certificates on a prior
Distribution Date, (b) to the extent permitted
under applicable law, the amount of any FBC
Additional Interest to accrue during the
Related Interest Period and (c) the amount of
any FBC Additional Interest previously due but
not distributed on the Fixed Base Certificates
on a prior Distribution Date.
FBC Interest Rate shall mean, with
respect to any Interest Period and the Fixed
Base Certificates, a fixed interest rate per
annum equal to 7.664, and, upon a downgrade or
a withdrawal of the ratings of the Fixed Base
Certificates, 8.414%.
FBC Interest Shortfall shall have
the meaning specified in Section 4.2 hereof.
FBC Investor Charge-Off shall have
the meaning specified in Section 4.9 hereof.
FBC Investor Default Amount shall
mean, with respect to each Distribution Date,
an amount equal to the portion of the Investor
Default Amount for the Related Collection
Period that will be allocated to the Fixed
Base Invested Amount as set forth in Section
4.9 hereof.
FBC Monthly Interest shall have
the meaning specified in Section 4.2 hereof.
FBC Monthly Principal shall have
the meaning specified in Section 4.3 hereof.
FBC Principal Allocation
Percentage shall mean, (a) with respect to
any Collection Period commencing during the
Revolving Period, the percentage equivalent of
a fraction, the numerator of which is the
Fixed Base Invested Amount and the denominator
of which is the Required Series Pool Balance,
in each case, as of the first day of such
Collection Period and after giving effect to
any distributions made as of such date, or (b)
with respect to any Collection Period
commencing during the Controlled Amortization
Period or an Early Amortization Period, the
percentage equivalent of a fraction, the
numerator of which is the Fixed Base Invested
Amount as of the first day of the last
Collection Period commencing during the
Revolving Period, and the denominator of which
is the Required Series Pool Balance as of the
first day of the last Collection Period
commencing during the Revolving Period.
FBC Principal Collections shall
mean, for any Allocation Day, an amount equal
to the Series Principal FBC Collections for
such day minus the product of (a) the amount
of Series Principal Collections distributed to
the Holder of the Exchangeable Certificate on
such day in accordance with Section 4.1(b)
(ii) hereof and (b) the FBC Principal
Allocation Percentage in effect on such
Allocation Day.
Fixed Base Certificate Balance
shall mean the aggregate principal amount of
the Fixed Base Certificates, which as of any
date of determination, will be the Initial
Fixed Base Invested Amount reduced to the
extent that principal payments are made to the
Holders of the Fixed Base Certificates.
Fixed Base Certificates shall have
the meaning specified in Section 6.1 hereof.
Fixed Base Certificateholder shall
mean, with respect to any Fixed Base
Certificate on any date, the Person in whose
name such Fixed Base Certificate is registered
on such date.
Fixed Base Invested Amount shall
mean, as of any date of determination, an
amount equal to (a) the Initial Fixed Base
Invested Amount, minus, (b) the amount of
principal payments made to the Fixed Base
Certificateholders in respect of the Fixed
Base Invested Amount prior to such date, and
minus, (c) the aggregate amount of FBC
Investor Charge-Offs previously allocated and
not reimbursed.
Fixed/Floating Allocation
Percentage shall mean, with respect to any
Collection Period during the Controlled
Amortization Period or an Early Amortization
Period, the percentage equivalent (which
percentage shall never exceed 100%) of a
fraction, the numerator of which is the
Required Series Pool Balance as of first day
of the last Collection Period to commence
during the Revolving Period and the
denominator of which is the Series Pool
Balance as of the first day of such current
Collection Period.
Floating Allocation Percentage
shall mean, with respect to any Collection
Period, the percentage equivalent (which
percentage shall never exceed 100%) of a
fraction, the numerator of which is the
Required Series Pool Balance and the
denominator of which is the Series Pool
Balance, in each case, as of the first day of
such Collection Period; provided, however,
that, with respect to the first Collection
Period, the Floating Allocation Percentage
shall mean the percentage equivalent of a
fraction, the numerator of which is the sum of
the Initial Fixed Base Invested Amount and the
Initial Subordinated Invested Amount, and the
denominator of which is the Series Pool
Balance as of the Closing Date.
Initial Fixed Base Invested Amount
shall mean $53,000,000.
Initial Subordinated Invested
Amount shall mean $6,550,562.
Interest Period shall mean, with
respect to any Distribution Date, the period
from and including the Distribution Date
immediately preceding such Distribution Date
(or, in the case of the first Distribution
Date, from and including the Closing Date) to
but excluding such Distribution Date.
Investor Component shall mean, as
of any time of determination, the amount set
forth as of such time on the ledger maintained
by the Servicer in accordance with Section
4.4(e) hereof as representing the net balance
of deposits made to the Retained Amount
Account pursuant to Sections 4.1(d) (i) (A)
(3), 4.1(d) (i) (B) (4), 4.1(d)(ii)(A)(5) and
4.1(d)(ii)(B)(5) hereof less amounts withdrawn
therefrom in accordance with Section 4.6.
Investor Default Amount shall
mean, (i) with respect to any Distribution
Date, an amount equal to the product of (a)
the Default Amount for the Related Collection
Period, (b) the Floating Allocation Percentage
for the Related Collection Period and (c) the
Series 1999-1 Allocation Percentage for the
Related Collection Period and, (ii) with
respect to any day during a Collection Period,
an amount equal to the product of (a) the
Default Amount recognized by the Servicer
through such day of such Collection Period,
(b) the Floating Allocation Percentage for the
Related Collection Period and (c) the Series
1999-1 Allocation Percentage for the Related
Collection Period.
Investor Default Holdback Amount
shall mean, with respect to (a) any Collection
Period (other than the initial Collection
Period), the greater of (A) the Investor
Default Amount which the Servicer reasonably
anticipates for such Collection Period or (B)
the average of the Investor Default Amounts
for each of the twelve consecutive Collection
Periods preceding such Collection Period (or,
for the initial twelve Collection Periods, for
as many Collection Periods as have occurred
since the Closing Date), and (b) the initial
Collection Period, $300,000.
Investor Finance Charge
Collections shall mean, as of any Allocation
Day, the product of the amount of Series
Finance Charge Collections received since the
beginning of the preceding Business Day and
(a) for any Collection Period commencing prior
to the commencement of an Early Amortization
Period, the Floating Allocation Percentage for
the current Collection Period or (b) for any
Collection Period commencing during an Early
Amortization Period, the Fixed/Floating
Allocation Percentage for the current
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,
together with an amount equal to the Series
Allocation Percentage of the interest and
other investment earnings (net of losses and
investment expenses) on funds held in the
Collection Account credited as of such date to
the Collection Account pursuant to Section
4.02 of the Agreement.
Investor Principal Collections
shall mean, as of any Allocation Day, the sum
of (a) the FBC Principal Collections and (b)
the Subordinated Principal Collections, in
each case, determined for such day.
Make Whole Premium shall mean,
with respect to any Accelerated Payment, the
aggregate of the present values calculated in
accordance with standard financial practices
and discounted at the Reinvestment Yield of
the amount of the positive difference, if any,
of (a) the amount of interest that would have
accrued on such Accelerated Payment had it
been paid as all or a portion of the next
possible payment or payments of one or more
Controlled Amortization Amounts (taking into
account any previous payments of Controlled
Amortization Amounts or Accelerated Payments)
rather than being paid currently, over (b) the
amount of interest that would accrue on such
Accelerated Payment if it were reinvested
currently in one or more instruments in
amounts and having maturities corresponding to
the one or more next possible payments
described in clause (a) and bearing interest
at the Reinvestment Yield. The Make Whole
Premium shall never be less than zero.
Monthly Payment Rate with respect
to any Collection Period, shall mean the
percentage equivalent of a fraction, the
numerator of which is the aggregate amount of
all Collections in respect of Eligible
Receivables received during such month, and
the denominator of which is the Pool Balance
as of the first day of such month.
Monthly Senior Servicing Fee shall
mean, (i) with respect to any Distribution
Date relating to a Collection Period during
which Gottschalks, Inc. (or any successor
entity resulting from a transaction meeting
the requirements of Section 8.04 of the
Agreement or Section 7.4 hereof) is the
Servicer, five-sixths of the Monthly Servicing
Fee for the Related Collection Period and (ii)
with respect to any Distribution Date relating
to a Collection Period during which
Gottschalks, Inc. (or any successor entity
resulting from a transaction meeting the
requirements of Section 8.04 of the Agreement
or Section 7.4 hereof) is not the Servicer,
100% of the Monthly Servicing Fee for the
Related Collection Period.
Monthly Servicing Fee shall mean,
with respect to any Distribution Date, an
amount equal to one-twelfth of 3.00% per annum
of the Required Series Pool Balance as of the
first day of the Related Collection Period.
Monthly Subordinated Servicing Fee
shall mean, (i) with respect to any
Distribution Date relating to a Collection
Period during which Gottschalks, Inc. (or any
successor entity resulting from a transaction
meeting the requirements of Section 8.04 of
the Agreement or Section 7.4 hereof) is the
Servicer, one-sixth of the Monthly Servicing
Fee for the Related Collection Period and (ii)
with respect to any Distribution Date relating
to a Collection Period during which
Gottschalks, Inc. (or any successor entity
resulting from a transaction meeting the
requirements of Section 8.04 of the Agreement
or Section 7.4 hereof) is not the Servicer, 0%
of the Monthly Servicing Fee for the Related
Collection Period.
Optional Purchase Price shall
mean, with respect to any Distribution Date,
after giving effect to any deposits and
distributions otherwise to be made on such
Distribution Date, the sum of (a) the Fixed
Base Certificate Balance on such Distribution
Date, (b) accrued and unpaid interest on the
outstanding Fixed Base Certificate Balance
(including any FBC Carryover Interest), and
(c) any due but not distributed Make Whole
Premium (including any interest accrued
thereon, to the extent lawful, at the FBC
Interest Rate).
Portfolio Yield shall mean, 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 Series Pool Balance as of the
first day of such Collection Period.
Rating Agency shall mean Duff &
Xxxxxx Credit Rating Company or its
successors.
Reinvestment Yield shall mean,
with respect to any Accelerated Payment, the
yield to maturity implied by (a) the yields
reported, as of 10:00 a.m. New York City time
on the Business Day next preceding the
Distribution Date on which such Accelerated
Payment is to be made, on the display
designated as Page 678 on the Telerate
Service (or such other display as may replace
Page 678 on the Telerate Service) for actively
traded U.S. Treasury securities having a
maturity equal or closest to the Remaining
Average Life of such Accelerated Payment as of
such Distribution Date, plus 1.0% per annum,
or (b) if such yields shall not be reported as
of such time or the yields reported as of such
time shall not be ascertainable, the Treasury
Constant Maturity Series yields reported, for
the latest day for which such yields shall
have been so reported as of the Business Day
preceding the Distribution Date on which such
Accelerated Payment is to be made, in Federal
Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively
traded U.S. Treasury securities having a
constant maturity equal to the Remaining
Average Life of such Accelerated Payment as of
such Distribution Date, plus 1.0% per annum.
Such implied yield shall be determined, if
necessary, by (x) converting U.S. Treasury
xxxx quotations to bond-equivalent yields in
accordance with accepted financial practice
and (y) interpolating linearly between
reported yields. The Servicer shall calculate
the Reinvestment Yield with respect to any
Accelerated Payment.
Related Collection Period shall
mean, with respect to (a) any Distribution
Date, the preceding Collection Period and (b)
any Allocation Day, the Collection Period
during which such Allocation Day occurs.
Related Distribution Date shall
mean, with respect to any Collection Period or
Determination Date or Allocation Day, the
Distribution Date following, as applicable,
such Collection Period or Determination Date
or the calendar month in which such Allocation
Day occurs.
Related Interest Period shall
mean, with respect to (a) any Distribution
Date, the Interest Period ended on the
preceding day and (b) any Collection Period,
the Interest Period which commences during
such Collection Period.
Remaining Average Life shall mean,
at any time of determination after the
commencement of an Early Amortization Period,
the number of years obtained by dividing the
then Remaining Dollar-Years of the Fixed Base
Certificates by the Fixed Base Invested Amount
at such time. The term Remaining
Dollar-Years means the amount obtained by (a)
multiplying (i) the amount of each remaining
payment with respect to the Fixed Base
Certificates, assuming that such payments are
made in the Controlled Amortization Amounts
(using the Fixed Base Invested Amount at the
time an Early Amortization Period commenced in
order to calculate such Controlled
Amortization Amounts) over the number of
months comprising the Controlled Amortization
Period, by (ii) the number of years
(calculated to the nearest one-twelfth) which
will elapse between the date as of which the
calculation is made and each Distribution Date
during the notional Controlled Amortization
Period and (b) totaling all the products
obtained in clause (a).
Required Exchangeable Certificate
Amount means, for any date of determination,
the product of (i) the Required Series Pool
Balance as of such date of determination and
the greater of (A) 7.00% and (B) the
percentage equivalent of a fraction:
(1) the numerator of which is the
net amount of charge account refunds or
return credits that were given to account
holders by Gottschalks during the
calendar month of the prior calendar year
corresponding to the current calendar
month in which such determination is
being made (the Anniversary Month); and
(2) the denominator of which is the
aggregate amount of net sales credited to
Charge Accounts and recognized by
Gottschalks during such Anniversary
Month.
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.
Retained Amount Account shall have
the meaning specified in Section 4.4 hereof.
Deposits into and withdrawals from the
Retained Amount Account shall be made in
accordance with the provisions of Section 4.6
hereof.
Retained Exchangeable Amount has
the meaning specified in Section 4.6(a)(ii).
Revolving Period shall mean the
period beginning at the opening of business on
the Closing Date and ending on the earlier of
(a) the last day of the Related Collection
Period for the Distribution Date that is to
occur in August, 2003 and (b) the close of
business on the Business Day immediately
preceding the day on which an Early
Amortization Period commences.
Series Accounts shall have the
meaning specified in Section 4.4 hereof.
Series Cut-Off Date shall mean the
Cut-Off Date.
Series Default Amount shall mean,
with respect to any Distribution Date, an
amount equal to the product of (a) the Default
Amount for the Related Collection Period, and
(b) the Series 1999-1 Allocation Percentage
for the Related Collection Period.
Series Finance Charge Collections
shall mean, with respect to the aggregate
amount of Finance Charge Collections received
on any Business Day, the product of such
Finance Charge Collections and the Series 1999-
1 Allocation Percentage for the Related
Collection Period.
Series Issuance Date shall mean
March 1, 1999.
Series 1999-1 shall mean the
Series of Investor Certificates and the
Subordinated Certificate created pursuant to
this Series Supplement.
Series 1999-1 Allocation
Percentage shall mean, for any Collection
Period, the Series Allocation Percentage for
Series 1999-1 as calculated for such
Collection Period in accordance with the
Agreement.
Series Pool Balance shall mean, as
of any date of determination, the product of
(a) the Pool Balance as of such date and (b)
the Series 1999-1 Allocation Percentage for
such date.
Series Principal Collections shall
mean, with respect to the aggregate amount of
Principal Collections received since the
beginning of the preceding Business Day, the
product of such Principal Collections and the
Series 1999-1 Allocation Percentage for the
Related Collection Period.
Series Principal FBC Collections
shall mean, for each Allocation Day, an amount
equal to the product of (a) the amount of the
Series Principal Collections received on any
Business Day and (b) the FBC Principal
Allocation Percentage in effect on such
Allocation Day.
Series Principal SC Collections
shall mean, for each Allocation Day, an amount
equal to the product of (a) the amount of the
Series Principal Collections received on any
Business Day and (b) the Subordinated
Principal Allocation Percentage in effect on
such Allocation Day.
Series Termination Date shall mean
the August 2006 Distribution Date.
Servicing Fee Rate shall mean 3.0%
per annum.
Spread Account shall have the
meaning specified in Section 4.4 hereof.
Deposits into and withdrawals from the Spread
Account shall be made in accordance with the
provisions of Section 4.7 hereof.
Spread Account Requirement as of
any date of determination means zero, unless a
Spread Account Trigger occurs, in which case
Spread Account Requirement shall mean (i) the
sum of (a) the Fixed Base Certificate Balance,
(b) the amount by which the accrued and unpaid
Monthly Servicing Fee payable on the next
Distribution Date exceeds Investor Finance
Charge Collections allocable thereto through
such date, (c) the amount by which accrued and
unpaid interest on the Fixed Base Certificates
(including FBC Carryover Interest) payable on
the next Distribution Date exceeds Investor
Finance Charge Collections allocable thereto
through such date and (d) the amount by which
the Investor Default Amount through such date
exceeds Investor Finance Charge Collections
allocated therefor through such date as the
Investor Default Holdback Amount, minus (ii)
the sum of (a) the amount of Investor
Principal Collections then on deposit in the
Collection Account and available for the
payment of principal on the Fixed Base
Certificates and (b) the Investor Component of
the amount on deposit in the Retained Amount
Account.
Spread Account Trigger shall mean
the occurrence of any of the following events;
(1) the rating of the Fixed Base Certificates
are put on Credit Watch with negative
implications by the Rating Agency or (2) any
of the following conditions is true, taken as
an average of the relevant calculation for
each of the three preceding consecutive
calendar months; (i) the Portfolio Yield is
less than 14.5%; (ii) the Default Rate exceeds
8.5%; (iii) the Excess Spread is less than
3.00%; (iv) the Delinquency Rate exceeds
2.00%; or (v) the Monthly Payment Rate is less
than 22.5%.
Standby Servicer shall mean
Bankers Trust Company or such other party as
may be appointed by the Trustee to stand ready
to act as a Successor Servicer in the event
that Gottschalks is removed as Servicer.
Subordinated Allocation Percentage
shall mean, with respect to any Collection
Period, the percentage equivalent of a
fraction the numerator of which is the
Subordinated Invested Amount and the
denominator of which is the Required Series
Pool Balance, in each case, as of the first
day of such Collection Period.
Subordinated Certificate means the
Certificate issued pursuant to Section 6.3
hereof, substantially in the form of Exhibit
A-2.
Subordinated Invested Amount shall
mean, as of any date of determination, an
amount equal to (a) the Initial Subordinated
Invested Amount, minus, (b) the amount, if
any, by which the aggregate amount of
Subordinated Investor Charge-Offs exceeds the
Subordinated Investor Charge-Offs reimbursed
pursuant to Section 4.1(c)(vi), and minus (c)
the amount of principal payments made to the
holder of the Subordinated Certificate in
respect of the Subordinated Invested Amount
pursuant to Section 4.1(d)(ii)(C)(7) prior to
such date, provided that at no time shall the
Subordinated Invested Amount be less than
zero.
Subordinated Investor Charge-Offs
shall have the meaning specified in Section
4.9(b) hereof.
Subordinated Principal Allocation
Percentage shall mean, (a) with respect to
any Collection Period commencing during the
Revolving Period, the percentage equivalent of
a fraction, the numerator of which is the
Subordinated Invested Amount and the
denominator of which is the Required Series
Pool Balance, in each case, as of the first
day of such Collection Period, or (b) with
respect to any Collection Period commencing
during the Controlled Amortization Period or
any Early Amortization Period, the percentage
equivalent of a fraction, the numerator of
which is the Subordinated Invested Amount as
of the first day of the last Collection Period
to commence during the Revolving Period, and
the denominator of which is the Required
Series Pool Balance as of the first day of the
last Collection Period commencing during the
Revolving Period.
Subordinated Principal Collections
shall mean, for any Allocation Day, an amount
equal to the Series Principal SC Collections
for such day minus the product of (a) the
amount of Series Principal Collections
distributed to the holder of the Exchangeable
Certificate on such day in accordance with
Section 4.1(b)(ii) hereof and (b) the
Subordinated Principal Allocation Percentage
in effect on such Allocation Day.
Subordinated Reduction shall have
the meaning specified in Section 4.9(a)
hereof.
(b) Notwithstanding anything to the
contrary in this Series Supplement or the
Agreement, the term Rating Agency shall
mean, whenever used in this Series Supplement
or the Agreement with respect to the
Certificates, Duff & Xxxxxx.
(c) All capitalized terms used
herein and not otherwise defined herein have
the meanings ascribed to them in the
Agreement. The definitions in this Section
2.1 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.
(d) The words hereof, herein
and hereunder and words of similar import
when used in this Series Supplement shall
refer to this Series Supplement as a whole and
not to any particular provision of this Series
Supplement; references to any Article, Section
or Exhibit are references to Articles,
Sections and Exhibits in or to this Series
Supplement unless otherwise specified; and the
term including means including without
limitation.
(e) References herein to
Collections received shall be deemed to
include Collections received and processed as
to principal and finance charges and shall not
include unprocessed Collections (i.e.,
Collections which have been received but for
which the Servicer in the ordinary course of
its business has not yet identified in its
computer records the principal and finance
charge components).
ARTICLE III
Servicing Fee
SECTION 3.1. Servicing Compensation. The
Monthly Servicing Fee shall be payable to the
Servicer, in arrears, on each Distribution
Date occurring prior to the earlier of the
first Distribution Date following the Series
Termination Date and the first Distribution
Date on which the Fixed Base Invested Amount
and the Subordinated Invested Amount are both
zero. In no event shall the Trust, the
Trustee, the Fixed Base Certificateholders or
the holder of the Subordinated Certificate be
liable for any other servicing fee. The
Monthly Servicing Fee shall be payable to the
Servicer solely to the extent amounts are
available for distribution in accordance with
the terms of this Series Supplement.
Amounts payable in respect of the
Monthly Servicing Fee will be allocable from
Investor Finance Charge Collections (and from
amounts reallocated as Investor Finance Charge
Collections) pursuant to the priorities set
forth in Section 4.1 hereof. In the event
that Gottschalks Inc. (or any successor entity
resulting from a transaction meeting the
requirements of Section 8.04 of the Agreement
or Section 7.4 hereof) is no longer the
Servicer, the Monthly Senior Servicing Fee for
any calendar month (or portion thereof)
following such servicing transfer shall equal
100% of the Monthly Servicing Fee for such
calendar month (or portion thereof) during
which the successor servicer is acting in such
capacity. So long as Gottschalks Inc. (or any
successor entity resulting from a transaction
meeting the requirements of Section 8.04 of
the Agreement or Section 7.4 hereof) is the
Servicer, that portion of the Monthly Senior
Servicing shall equal five-sixths of the
Monthly Servicing Fee, with the remaining
Monthly Servicing Fee for such Servicer being
payable in the form of Monthly Subordinated
Servicing Fee. The Monthly Senior Servicing
Fee and the Monthly Subordinated Servicing Fee
shall be allocated to the Servicer pursuant to
Section 4.1(c)(ii).
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
SECTION 4.1. Allocations and Distributions.
(a) General. Series Finance Charge
Collections, Series Principal Collections and
Series Default Amounts, as they relate to the
Certificates and the Exchangeable Certificate,
shall be allocated and distributed as set
forth in this Article IV.
(b) Distribution of Collections to the Holder
of the Exchangeable Certificate. At the
beginning of each Business Day (an Allocation
Day), the Servicer shall direct the Trustee
in writing to withdraw from the Collection
Account and distribute to the holder of the
Exchangeable Certificate (i) an amount equal
to the product of (A) the Exchangeable
Holder's Percentage in effect on such day and
(B) the amount of Series Finance Charge
Collections received on the preceding Business
Day, and (ii) an amount equal to the product
of (A) the Exchangeable Holders Percentage in
effect on such day and (B) the amount of
Series Principal Collections received on the
preceding Business Day. On each Distribution
Date, the Servicer shall allocate to the
Holder of the Exchangeable Certificate an
amount equal to the product of (x) the
Exchangeable Holder's Percentage in effect on
such date and (y) the amount of Series Default
Amount for the Related Collection Period.
(c) Allocation of Investor Finance Charge
Collections. At the beginning of each
Allocation Day, the Servicer shall allocate
Investor Finance Charge Collections received
on the preceding Business Day as follows and
in the following priorities:
(i) first, if an Early Amortization Event has
occurred, resulting in the assumption of
servicing duties by the Trustee or causing the
Trustee to incur extraordinary expenses in
connection with the performance of its duties
as a result of such Early Amortization Event,
unless an amount equal to the reasonable costs
and expenses of the Trustee related to such
assumption of servicing duties or its
performance of such duties in connection with
such Early Amortization Event (such amount not
to exceed $200,000 less any amounts paid to
the Trustee in respect thereof from any letter
of credit or surety bond maintained for such
purpose pursuant to Section 4.10) is then on
deposit in the Collection Account for the
benefit of the Trustee and allocated therefor,
Investor Finance Charge Collections received
since the beginning of the preceding Business
Day shall be retained in the Collection
Account until such amount is then on deposit;
(ii) second, unless an amount equal to the
Monthly Senior Servicing Fee for the current
Interest Period, plus any previously unpaid
Monthly Senior Servicing Fee (but only with
respect to the then current Servicer) is then
on deposit in the Collection Account and
allocated therefor, Investor Finance Charge
Collections received since the beginning of
the preceding Business Day shall be retained
in the Collection Account until such amount is
then on deposit;
(iii) third, unless an amount equal to the
sum of the FBC Monthly Interest to accrue
during the Related Interest Period, plus the
amount of any FBC Carryover Interest for the
Related Collection Period is then on deposit
in the Collection Account and allocated
therefor, Investor Finance Charge Collections
received since the beginning of the preceding
Business Day shall be retained in the
Collection Account until such amounts are then
on deposit;
(iv) fourth, unless an amount equal to the
Investor Default Holdback Amount for the
current Collection Period is then on deposit
in the Collection Account and allocated
therefor, Investor Finance Charge Collections
received since the beginning of the preceding
Business Day shall be retained in the
Collection Account until such amount is then
on deposit;
(v) fifth, unless all unreimbursed FBC
Investor Charge-Offs as of such Allocation Day
have been reallocated as FBC Principal
Collections, Investor Finance Charge
Collections received since the beginning of
the preceding Business Day shall be
reallocated as FBC Principal Collections until
the amounts reallocated equal all unreimbursed
FBC Investor Charge-Offs;
(vi) sixth, unless all unreimbursed
Subordinated Investor Charge-Offs as of such
Allocation Day have been reallocated as
Subordinated Principal Collections, Investor
Finance Charge Collections received since the
beginning of the preceding Business Day shall
be reallocated as Subordinated Principal
Collections until the amounts reallocated
equal all unreimbursed Subordinated Investor
Charge-Offs;
(vii) seventh, unless the amount then on
deposit in the Spread Account is equal to the
Spread Account Requirement on such Allocation
Day, Investor Finance Charge Collections
received since the beginning of the preceding
Business Day shall be withdrawn from the
Collection Account in an amount equal to such
insufficiency and shall be deposited in the
Spread Account;
(viii) eighth, if such Allocation Day falls
within an Early Amortization Period that
commenced as a result of the occurrence of any
Early Amortization Event other than the
occurrence of a Servicer Default pursuant to
clauses (d) and (f) of Section 7.3, then,
unless an amount equal to the Make Whole
Premium for the Related Collection Period
(together with any Make Whole Premium
previously due but not paid on a prior
Distribution Date and any interest thereon at
the FBC Interest Rate) is then on deposit in
the Collection Account and allocated therefor,
Investor Finance Charge Collections received
since the beginning of the preceding Business
Day shall be retained in the Collection
Account until such amount is then on deposit
and allocated therefor;
(ix) ninth, unless an amount equal to the
Monthly Subordinated Servicing Fee for the
current Interest Period, plus any previously
unpaid Monthly Subordinated Servicing Fee, is
then on deposit in the Collection Account and
allocated therefor, Investor Finance Charge
Collections received since the beginning of
the preceding Business Day shall be retained
in the Collection Account until such amount is
then on deposit;
(x) tenth, unless an amount equal to the
amount necessary to reimburse any draws made
on any letter of credit or surety bond used to
cover expenses incurred pursuant to Section
4.1(c)(i) is on is then on deposit in the
Collection Account and allocated therefor,
Investor Finance Charge Collections received
since the beginning of the preceding Business
Day shall be retained in the Collection
Account until such amount is then on deposit;
(xi) eleventh, the balance, if any, of the
Investor Finance Charge Collections received
since the beginning of the preceding Business
Day (after making the allocations described in
paragraphs (i) through (x) above) shall be
distributed to the Depositor for application
in accordance with the Receivables Purchase
Agreement.
(d) Allocation of Principal Collections. (i)
At the beginning of each Allocation Day, the
Servicer shall allocate the FBC Principal
Collections for such day as follows and in the
following priorities:
(A) if such Allocation Day occurs during
the Revolving Period:
(1) first, unless an amount equal to the
amount of all unreimbursed FBC Investor Charge-
Offs is then on deposit in the Collection
Account and allocated therefor (to the extent
not already funded from Investor Finance
Charge Collections or amounts reallocated from
Subordinated Principal Collections pursuant to
Section 4.1(d)(ii)(A)(2)), FBC Principal
Collections received since the beginning of
the preceding Business Day shall be retained
in the Collection Account until the sum of
such amounts equals the amount of all
unreimbursed FBC Investor Charge-Offs;
(2) second, unless an amount equal to the
portion of the Investor Default Amount
allocable to the Fixed Base Invested Amount is
then on deposit in the Collection Account as
the Investor Default Holdback Amount or from
reallocated Subordinated Principal Collections
pursuant to Section 4.1(d)(ii)(A)(3), FBC
Principal Collections received since the
beginning of the preceding Business Day shall
be retained in the Collection Account until
such amount is then on deposit;
(3) third, if pursuant to Section 4.6(a)
hereof an amount is required to be deposited
in the Retained Amount Account on such day,
FBC Principal Collections received since the
beginning of the preceding Business Day in an
amount equal to the lesser of (x) the product
of (1) the amount of such required deposit and
(2) the FBC Allocation Percentage for such
Allocation Day, and (y) the balance, if any,
of FBC Principal Collections received since
the beginning of the preceding Business Day
shall be withdrawn from the Collection Account
and deposited in the Retained Amount Account;
and
(4) fourth, the balance, if any, of FBC
Principal Collections received since the
beginning of the preceding Business Day (after
making the allocations described in paragraphs
(1), (2) and (3) above) shall be distributed
to the Depositor for application in accordance
with the Receivables Purchase Agreement; or
(B) if such Allocation Day occurs during
the Controlled Amortization Period:
(1) first, unless an amount equal to the
Controlled Amortization Amount is then on
deposit in the Collection Account and
allocated therefor, FBC Principal Collections
received since the beginning of the preceding
Business Day shall be retained in the
Collection Account until such amount is then
on deposit;
(2) second, unless an amount equal to the
amount of all unreimbursed FBC Investor Charge-
Offs is then on deposit in the Collection
Account and allocated therefor (to the extent
not already funded from Investor Finance
Charge Collections or amounts reallocated from
Subordinated Principal Collections pursuant to
Section 4.1(d)(ii)(B)(3)), FBC Principal
Collections received since the beginning of
the preceding Business Day shall be retained
in the Collection Account until such amount is
then on deposit;
(3) third, unless an amount equal to the
portion of the Investor Default Amount
allocable to the Fixed Base Invested Amount
(to the extent not already funded from
Investor Finance Charge Collections or amounts
reallocated from Subordinated Principal
Collections pursuant to Section
4.1(d)(ii)(B)(4), or to be funded from amounts
on deposit in the Spread Account and available
for allocation therefor pursuant to Section
4.7) is then on deposit in the Collection
Account and allocated therefor, FBC Principal
Collections received since the beginning of
the preceding Business Day shall be retained
in the Collection Account until such amount is
then on deposit;
(4) fourth, if pursuant to Section 4.6(a)
hereof, an amount is required to be deposited
in the Retained Amount Account on such day
from Investor Principal Collections, FBC
Principal Collections received since the
beginning of the preceding Business Day in an
amount equal to the lesser of (x) the product
of (1) the amount of such required deposit and
(2) the FBC Allocation Percentage for such
Allocation Day, and (y) the balance, if any,
of FBC Principal Collections received since
the beginning of the preceding Business Day
shall be withdrawn from the Collection Account
and deposited in the Retained Amount Account;
and
(5) fifth, the balance, if any, of FBC
Principal Collections received since the
beginning of the preceding Business Day (after
making the allocations described in paragraphs
(1), (2), (3) and (4) above) shall be
distributed to the Depositor for application
in accordance with the Receivables Purchase
Agreement; or
(C) if such Allocation Day occurs during
an Early Amortization Period:
(1) first, unless an amount equal to the
Fixed Base Certificate Balance is then on
deposit in the Collection Account and
allocated therefor, FBC Principal Collections
received since the beginning of the preceding
Business Day shall be retained in the
Collection Account until such amount is then
on deposit;
(2) second, unless an amount equal to the
Make Whole Premium for the Related Collection
Period (together with any Make Whole Premium
previously due but not paid on a prior
Distribution Date and any interest thereon at
the FBC Interest Rate), is then on deposit in
the Collection Account and allocated therefor
(to the extent not already funded from
Investor Finance Charge Collections or amounts
reallocated from Subordinated Principal
Collections pursuant to Section
4.1(d)(ii)(C)(5)), FBC Principal Collections
received since the beginning of the preceding
Business Day shall be retained in the
Collection Account until such amount is then
on deposit;
(3) third, unless an amount equal to the
Subordinated Invested Amount is then on
deposit in the Collection Account and
allocated therefor, FBC Principal Collections
received since the beginning of the preceding
Business Day shall be retained in the
Collection Account until such amount is then
on deposit; and
(4) fourth, the balance, if any, of FBC
Principal Collections received since the
beginning of the preceding Business Day (after
making the allocation described in paragraphs
(1), (2) and (3) above) shall be distributed
to the Depositor for application in accordance
with the Receivables Purchase Agreement.
(ii) At the beginning of each Allocation Day,
the Servicer shall allocate the Subordinated
Principal Collections for such day as follows
and in the following priorities:
(A) if such Allocation Day occurs during
the Revolving Period:
(1) first, unless an amount equal to the sum
of the FBC Monthly Interest to accrue during
the Related Interest Period, plus the amount
of any FBC Carryover Interest for the Related
Collection Period, is then on deposit in the
Collection Account and allocated therefor (to
the extent not already funded from Investor
Finance Charge Collections or to be funded
from amounts on deposit in the Spread Account
and available for allocation therefor pursuant
to Section 4.7), Subordinated Principal
Collections received since the beginning of
the preceding Business Day shall be
reallocated as Investor Finance Charge
Collections in the amount of any such
deficiency;
(2) second, unless an amount equal to the
amount of all unreimbursed FBC Investor
Charge-Offs is then on deposit in the
Collection Account and allocated therefor (to
the extent not already funded from Investor
Finance Charge Collections), Subordinated
Principal Collections received since the
beginning of the preceding Business Day shall
be reallocated as FBC Principal Collections
and retained in the Collection Account until
the sum of such amounts equals the amount of
all unreimbursed FBC Investor Charge-Offs;
(3) third, on the last day of each Collection
Period, Subordinated Principal Collections
will be reallocated as Investor Finance Charge
Collections in the amount by which the
Investor Default Amount for such Collection
Period exceeds the sum of the amounts
allocated to the Investor Default Holdback
Amount (after giving effect to all allocations
of Investor Finance Charge Collections) and
amounts on deposit in the Spread Account and
available for allocation therefor pursuant to
Section 4.7;
(4) fourth, unless an amount equal to the
amount of all unreimbursed Subordinated
Investor Charge-Offs is then on deposit in the
Collection Account and allocated therefor,
Subordinated Principal Collections received
since the beginning of the preceding Business
Day shall be retained in the Collection
Account until the sum of such amounts equals
the amount of all unreimbursed Subordinated
Investor Charge-Offs (to the extent not
already funded from Investor Finance Charge
Collections);
(5) fifth, if pursuant to Section 4.6(a)
hereof an amount is required to be deposited
in the Retained Amount Account on such day,
Subordinated Principal Collections received
since the beginning of the preceding Business
Day in an amount equal to the lesser of (x)
the product of (1) the amount of such required
deposit and (2) the Subordinated Principal
Allocation Percentage for such Allocation Day,
and (y) the balance, if any, of Subordinated
Principal Collections received since the
beginning of the preceding Business Day shall
be withdrawn from the Collection Account and
deposited in the Retained Amount Account; and
(6) sixth, the balance, if any, of
Subordinated Principal Collections received
since the beginning of the preceding Business
Day (after making the allocations described in
paragraphs (1), (2), (3), (4) and (5) above)
shall be distributed to the Depositor for
application in accordance with the
Receivables Purchase Agreement; or
(B) if such Allocation Day occurs during
the Controlled Amortization Period:
(1) first, unless an amount equal to the sum
of the FBC Monthly Interest to accrue during
the Related Interest Period, plus the amount
of any FBC Carryover Interest for the Related
Collection Period is then on deposit in the
Collection Account and allocated therefor (to
the extent not already funded from Investor
Finance Charge Collections or to be funded
from amounts on deposit in the Spread Account
and available for allocation therefor pursuant
to Section 4.7), Subordinated Principal
Collections received since the beginning of
the preceding Business Day shall be
reallocated as Investor Finance Charge
Collections in the amount of any such
deficiency.
(2) second, unless an amount equal to the
Controlled Amortization Amount is then on
deposit in the Collection Account and
allocated therefor (to the extent not already
funded from FBC Principal Collections),
Subordinated Principal Collections received
since the beginning of the preceding Business
Day shall be reallocated as FBC Principal
Collections in the amount of any such
deficiency;
(3) third, unless an amount equal to the
amount of all unreimbursed FBC Investor
Charge-Offs is then on deposit in the
Collection Account and allocated therefor (to
the extent not already funded from Investor
Finance Charge Collections), Subordinated
Principal Collections received since the
beginning of the preceding Business Day shall
be reallocated as FBC Principal Collections
and retained in the Collection Account until
the sum of such amounts equals the amount of
all unreimbursed FBC Investor Charge-Offs;
(4) fourth, on the last day of each
Collection Period, Subordinated Principal
Collections will be reallocated as Investor
Finance Charge Collections in the amount by
which any Investor Default Amounts allocable
to the Fixed Base Invested Amount for such
Collection Period exceeds the sum of the
amount of Investor Finance Charge Collections
allocated thereto (i.e. the Investor Default
Holdback Amount) and amounts on deposit in the
Spread Account and available for allocation
therefor pursuant to Section 4.7 to fund such
deficiency;
(5) fifth, if pursuant to Section 4.6(a)
hereof an amount is required to be deposited
in the Retained Amount Account on such day,
Subordinated Principal Collections received
since the beginning of the preceding Business
Day shall be withdrawn from the Collection
Account in an amount equal to the lesser of
(x) the product of (1) the amount of such
required deposit and (2) the Subordinated
Principal Allocation Percentage for such
Allocation Day, and (y) the balance, if any,
of Subordinated Principal Collections received
since the beginning of the preceding Business
Day, and deposited in the Retained Amount
Account;
(6) sixth, unless an amount equal to the
amount of all unreimbursed Subordinated
Investor Charge-Offs is then on deposit in the
Collection Account and allocated therefor (to
the extent not already funded from Investor
Finance Charge Collections), Subordinated
Principal Collections received since the
beginning of the preceding Business Day shall
be retained in the Collection Account until
the sum of such amounts equals the amount of
all unreimbursed Subordinated Investor
Charge-Offs;
(7) seventh, unless an amount
equal to the amount by which the
Investor Default Amount for such
Collection Period exceeds the sum of
the amount of Investor Finance
Charge Collections allocated thereto
(i.e. the Investor Default Holdback
Amount) and amounts on deposit in
the Spread Account and available for
allocation therefor pursuant to
Section 4.7 is then on deposit in
the Collection Account and allocated
therefor (without duplication of
reallocations of Subordinated
Principal Collections pursuant to
clause (4) above), Subordinated
Principal Collections received since
the beginning of the preceding
Business Day shall be reallocated as
Investor Finance Charge Collections
in the amount of any such
deficiency; and
(8) eighth, the balance, if
any, of Subordinated Principal
Collections received since the
beginning of the preceding Business
Day (after making the allocations
described in paragraphs (1), (2),
(3), (4), (5), (6) and (7) above)
shall be distributed to the
Depositor for application in
accordance with the Receivables
Purchase Agreement; or
(C) if such Allocation Day occurs during
an Early Amortization Period:
(1) first, Subordinated Principal Collections
will be reallocated as Investor Finance Charge
Collections in the amount by which the sum of
FBC Monthly Interest to accrue during the
Related Interest Period, plus the amount of
any FBC Carryover Interest for the Related
Collection Period exceeds amounts on deposit
in the Collection Account in respect thereof
(after first giving effect to all allocations
of Investor Finance Charge Collections and
amounts on deposit in the Spread Account and
available for allocation therefor pursuant to
Section 4.7);
(2) second, unless an amount equal to the
amount of all unreimbursed FBC Investor
Charge-Offs is then on deposit in the
Collection Account and allocated therefor (to
the extent not already funded from Investor
Finance Charge Collections), Subordinated
Principal Collections received since the
beginning of the preceding Business Day shall
be reallocated as FBC Principal Collections
and retained in the Collection Account until
the sum of such amount equals the amount of
all unreimbursed FBC Investor Charge-Offs;
(3) third, unless an amount equal to the
amount of any Investor Default Amounts
allocable to the Fixed Base Invested Amount is
then on deposit in the Collection Account and
allocated therefor (to the extent not already
funded from Investor Finance Charge
Collections or to be funded from amounts on
deposit in the Spread Account and available
for allocation therefor pursuant to Section
4.7), Subordinated Principal Collections
received since the beginning of the preceding
Business Day shall be reallocated as Investor
Finance Charge Collections in the amount of
any such deficiency;
(4) fourth, Subordinated Principal
Collections will be reallocated as FBC
Principal Collections in the amount by which
the Fixed Base Certificate Balance exceeds
amounts on deposit in the Collection Account
in respect thereof (after first giving effect
to all allocations of FBC Principal
Collections);
(5) fifth, if amounts are required to be
allocated pursuant to Section 4.1(c)(vi),
unless an amount equal to the Make Whole
Premium for the Related Collection Period
(together with any Make Whole Premium
previously due but not paid on a prior
Distribution Date, plus interest thereon at
the FBC Interest Rate) is then on deposit in
the Collection Account and allocated therefor
(to the extent not already funded from
Investor Finance Charge Collections),
Subordinated Principal Collections received
since the beginning of the preceding Business
Day shall be reallocated as Investor Finance
Charge Collections in the amount of any such
deficiency;
(6) sixth, unless an amount equal to the
amount of all unreimbursed Subordinated
Investor Charge-Offs is then on deposit in the
Collection Account and allocated therefor (to
the extent not already funded from Investor
Finance Charge Collections), Subordinated
Principal Collections received since the
beginning of the preceding Business Day shall
be retained in the Collection Account until
the sum of such amounts equals the amount of
all unreimbursed Subordinated Investor
Charge-Offs; and
(7) seventh, the balance, if any, of
Subordinated Principal Collections received
since the beginning of the preceding Business
Day (after making the allocations described in
paragraphs (1), (2), (3), (4), (5) and (6)
above) shall (I) so long as the Subordinated
Invested Amount is greater than zero, be
retained in the Collection Account until an
amount equal to the Subordinated Invested
Amount is on deposit therein, and (II) if the
Subordinated Invested Amount is zero, be
distributed to the Depositor.
(e) Investor Default Holdback Amount. On the
last day of each Collection Period, the
Servicer shall direct the Trustee in writing
to apply the Investor Default Holdback Amount
retained in the Collection Account during such
Collection Period as follows: an amount equal
to the Investor Default Amount for such
Collection Period shall be reallocated as FBC
Principal Collections and applied pursuant to
Section 4.1(d)(i). To the extent the Investor
Default Holdback Amount for the related
Collection Period exceeds the related Investor
Default Amount for such Collection Period, the
excess Investor Default Holdback Amount shall
be deemed to be Investor Finance Charge
Collections available for application pursuant
to Section 4.1(c).
(f) Distributions.
(i) On or before each Determination Date, the
Servicer shall provide written directions to
the Trustee directing the Trustee to
distribute to the Fixed Base
Certificateholders on the following
Distribution Date from amounts on deposit in
the Collection Account:
(A) if such Determination Date
relates to a Collection Period that
commences during the Revolving
Period (and during or prior to which
no Early Amortization Event occurs),
an amount equal to the sum of the
amounts, if any, retained in the
Collection Account during the
Related Collection Period in respect
of the Fixed Base Certificates
pursuant to Section 4.1(c)(iii) and
4.1(d)(ii)(A)(1); or
(B) if such Determination Date
relates to a Collection Period that
commences after the termination of
the Revolving Period (and during or
prior to which no Early Amortization
Event occurs), an amount equal to
the sum of the amounts, if any,
retained in the Collection Account
during the Related Collection Period
in respect of the Fixed Base
Certificates pursuant to Sections
4.1(c)(iii), 4.1(c)(v),
4.1(d)(i)(B)(1), 4.1(d)(i)(B)(2),
4.1(d)(ii)(B)(1), 4.1(d)(ii)(B)(2),
4.1(d)(ii)(B)(3) and 4.1(e) (to the
extent allocated to amounts payable
to the Fixed Base
Certificateholders); or
(C) if such Determination Date
relates to a Collection Period that
commences after the occurrence of an
Early Amortization Event or during
which an Early Amortization Event
occurs, (1) an amount equal to the
sum of the amounts, if any, retained
in the Collection Account during the
Related Collection Period in respect
of the Fixed Rate Certificates
pursuant to Sections 4.1(c)(iii),
4.1(c)(v), 4.1(c)(viii),
4.1(d)(i)(C)(1), 4.1(d)(i)(C)(2),
4.1(d)(ii)(C)(1), 4.1(d)(ii)(C)(2)
and 4.1(d)(ii)(C)(4) and 4.1(e) (to
the extent allocated to amounts
payable to the Fixed Base
Certificateholders);
(ii) On or before each Determination Date, the
Servicer shall provide written directions to
the Trustee directing the Trustee to
distribute to the Servicer on the following
Distribution Date from amounts on deposit in
the Collection Account, an amount equal to the
sum of the amounts, if any, retained in the
Collection Account during the Related
Collection Period pursuant to Sections
4.1(c)(ii) and 4.1(c)(ix); provided, however,
so long as Gottschalks is the Servicer, the
Trustee shall first deduct from any amount
payable to the Servicer pursuant to this
paragraph an amount equal to the sum of (i)
any accrued but unpaid trustee's fees owed to
it pursuant to Section 11.05 of the Agreement
and (ii) any accrued but unpaid fees of the
Standby Servicer, but in no event in excess of
the Monthly Senior Servicing Fee;
(iii) On or before each Determination Date
that occurs during an Early Amortization
Period, the Servicer shall provide written
directions to the Trustee directing the
Trustee to distribute to the Subordinated
Certificateholder on the following
Distribution Date from amounts on deposit in
the Collection Account an amount equal to the
sum of the amounts, if any, retained in the
Collection Account during the Related
Collection Period in respect of the
Subordinated Certificates pursuant to Section
4.1(d)(ii)(C)(7);
(iv) On each Distribution Date, the Servicer
shall provide written instructions to the
Trustee directing the Trustee to distribute
all amounts retained in the Collection Account
pursuant to Section 4.1(c)(i) or Section
4.1(c)(x) that are necessary to cover any
expenses referred to in Section 4.1(c)(i); and
(v) On each Distribution Date, the Servicer
shall provide written instructions to the
Trustee directing the Trustee to distribute
all amounts retained in the Collection Account
pursuant to Section 4.1(c) and Section 4.1(d)
and not required for any other purpose
hereunder to the Depositor for application in
accordance with the Receivables Purchase
Agreement.
(g) Other Amounts. The withdrawals to be
made from the Collection Account pursuant to
this Section 4.1 do not apply to deposits into
the Collection Account that do not represent
Collections, including proceeds from the sale,
disposition or liquidation of Receivables
pursuant to Section 9.02 or Section 12.02 of
the Agreement, which shall be distributable
pursuant to the priorities set forth in
Article IX hereof.
SECTION 4.2. Determination of FBC Monthly
Interest. The amount of monthly interest (FBC
Monthly Interest) distributable from the
Collection Account (or, in the case of the
first Distribution Date, from the Capitalized
Interest Account) with respect to the Fixed
Base Certificates on any Distribution Date
shall be an amount equal to one-twelfth of the
product of (i) the Fixed Base Certificate
Balance as of the close of business on the
first day of the Related Collection Period,
and (ii) the FBC Interest Rate; provided that
in the case of the initial Interest Period the
FBC Monthly Interest shall be $496,456.89. On
the Determination Date preceding each
Distribution Date, the Servicer shall
determine the excess, if any, of (x) the sum
of FBC Monthly Interest for the Related
Interest Period, plus the amount, if any, of
the FBC Interest Shortfall which was due but
not paid on the prior Distribution Date (which
amount, as of the first Determination Date,
shall be zero) over (y) the amount which will
be available to be distributed to the Holders
of the Fixed Base Certificates on such
Distribution Date in respect thereof pursuant
to this Series Supplement (such excess, the
FBC Interest Shortfall). If, on any
Distribution Date, the FBC Interest Shortfall
is greater than zero, then an additional
amount (FBC Additional Interest) shall be
payable as provided herein with respect to
Fixed Base Certificates on each Distribution
Date following such Distribution Date, to but
excluding the Distribution Date on which the
FBC Interest Shortfall is paid to the Holders
of the Fixed Base Certificates, in an amount
equal to the product of (i) such FBC Interest
Shortfall (or the portion thereof which has
not previously been paid to Fixed Base
Certificateholders) and (ii) one-twelfth of
the FBC Interest Rate. Notwithstanding
anything to the contrary herein, FBC
Additional Interest shall be paid or
distributed on Fixed Base Certificates only to
the extent permitted by applicable law.
SECTION 4.3. Determination of FBC Monthly
Principal. The amount of monthly principal
(FBC Monthly Principal) distributable from
the Collection Account with respect to the
Fixed Base Certificates on each Distribution
Date prior to the Distribution Date relating
to the first Collection Period during the
Controlled Amortization Period or during which
an Early Amortization Event occurs shall be
zero. The amount of FBC Monthly Principal
distributable from the Collection Account with
respect to the Fixed Base Certificates on each
Distribution Date commencing with the
Distribution Date relating to the first
Collection Period during the Controlled
Amortization Period or during which an Early
Amortization Event occurs shall be the lesser
of (a) FBC Principal Collections (including
Investor Finance Charge Collections,
Subordinated Principal Collections, amounts on
deposit in the Spread Account and allocated
therefor pursuant to Section 4.7 and amounts
on deposit in the Retained Amount Account
reallocated as FBC Principal Collections) on
deposit in the Collection Account and
allocated thereto on such Distribution Date
and (b) either (i) prior to the occurrence of
an Early Amortization Event during such
Related Collection Period, the sum of (A) the
Controlled Amortization Amount and (B) the
amount of unreimbursed FBC Investor Charge-
Offs as of such Distribution Date, or (ii)
following the occurrence of an Early
Amortization Event during such Related
Collection Period, the Fixed Base Certificate
Balance.
SECTION 4.4. Series Accounts. (a) The
Servicer, for the benefit of the
Certificateholders, shall establish and
maintain in the name of the Trustee, on behalf
of the Trust, (i) an Eligible Deposit Account
(the Capitalized Interest Account), which
shall be identified as the Capitalized
Account for Gottschalks Credit Card Master
Trust, Series 1999-1, (ii) an Eligible
Deposit Account (the Retained Amount
Account), which shall be identified as the
Retained Amount Account for Gottschalks
Credit Card Master Trust, Series 1999-1, and
(iii) an Eligible Deposit Account (the Spread
Account), which shall be identified as the
Spread Account for Gottschalks Credit Card
Master Trust, Series 1999-1. Each of the
Capitalized Interest Account, the Retained
Amount Account and the Spread Account shall
bear a designation clearly indicating that the
funds deposited therein are held for the
benefit of the Certificateholders. The
Capitalized Interest Account, the Retained
Amount Account and the Spread Account are
referred to herein individually as a Series
Account and collectively as Series
Accounts.
(b) At the written direction of the Servicer,
funds on deposit in any Series Account shall
be invested by the Trustee in Eligible
Investments selected by the Servicer that will
mature no later than the date on which such
funds are expected to be withdrawn from such
Series Account. All such Eligible Investments
shall be held by the Trustee for the benefit
of the Certificateholders. All interest and
other investment earnings (net of losses and
investment expenses) of funds on deposit in
the Series Accounts shall be deposited in the
Collection Account and shall be treated by the
Servicer as Investor Finance Charge
Collections. In no event shall the Trustee be
liable for the selection of investments or for
investment losses incurred thereon. The
Trustee shall have no liability in respect of
losses incurred as a result of the liquidation
of any such investment prior to its stated
maturity or the failure of the party directing
such investment to provide timely written
investment direction. The Trustee shall have
no obligation to invest or reinvest any
amounts held hereunder in the absence of such
written investment direction.
(c) The Capitalized Interest Account shall be
maintained until all amounts on deposit
therein have been applied in accordance with
Section 4.5 hereof. The Retained Amount
Account shall be maintained until all amounts
on deposit therein have been applied in
accordance with Section 4.6(e) or (f) hereof.
The Spread Account shall be maintained until
all amounts on deposit therein have been
applied in accordance with Section 4.7(c)
hereof and the Fixed Base Certificate Balance
has been reduced to zero.
(d) The Trustee shall possess all right,
title and interest in and to all funds on
deposit from time to time in, and all Eligible
Investments credited to, the Series Accounts
and in all proceeds thereof. Each Series
Account shall be under the sole dominion and
control of the Trustee for the benefit of the
Certificateholders. If, at any time, any
Series Account ceases to be an Eligible
Deposit Account the Servicer shall within 10
Business Days (or such longer period, not to
exceed 30 calendar days, as to which each
Rating Agency may consent) instruct the
Trustee to establish a new Series Account
meeting the conditions specified in subsection
(a) above as an Eligible Deposit Account and
shall transfer any cash and/or any investments
to such new Series Account. Neither the
Depositor, the Servicer nor any person or
entity claiming by, through or under the
Depositor, the Servicer or any such person or
entity shall have any right, title or interest
in, or any right to withdraw any amount from,
any Series Account, except as expressly
provided herein. Schedule 1 hereto, which is
hereby incorporated into and made part of this
Series Supplement, identifies the Series
Accounts by setting forth for each such
account the account number of such account,
the account designation of such account and
the name of the institution with which such
account has been established. If a substitute
Series Account is established pursuant to this
Section 4.4, the Servicer shall provide to the
Trustee an amended Schedule 1, setting forth
the relevant information for such substitute
Series Account.
(e) The Servicer shall maintain a ledger for
the Retained Amount Account and shall record
in such ledger the Investor Component and the
Exchangeable Component of each deposit made by
the Trustee to, and each withdrawal by the
Trustee from, the Retained Amount Account.
The Servicer shall also maintain a ledger for
the Spread Account and shall record in such
ledger each deposit made by the Trustee to,
and withdrawal by the Trustee from, the Spread
Account.
(f) Pursuant to the authority granted to the
Servicer in Section 3.01(a) of the Agreement,
the Servicer shall have the power, revocable
by the Trustee, to instruct the Trustee to
make withdrawals and payments from the Series
Accounts for the purposes of carrying out the
Servicer's or the Trustee's duties hereunder.
(g) The Trustee hereby confirms that (i) the
Trustee is acting, with respect to the
establishment and maintenance of Series
Accounts, as a "securities intermediary" as
defined in Section 8-102 of the UCC or the
corresponding Section of the UCC in the
applicable State (in such capacity, the
Securities Intermediary), (ii) has
established each Series Account as a
"securities account" as such term is defined
in Section 8-501(a) of the UCC, (iii) the
Securities Intermediary shall, subject to the
terms of this Agreement, treat the Trustee as
entitled to exercise the rights that comprise
any financial asset credited to any Series
Account, and (iv) all securities or other
property underlying any financial assets
credited to any Series Account shall be
registered in the name of the Securities
Intermediary, endorsed to the Securities
Intermediary or in blank and in no case will
any financial asset credited to any Series
Account be registered in the name of any other
person, payable to the order of any other
person, or specially endorsed to any other
person, except to the extent the foregoing
have been specially endorsed by the Depositor
to the Trustee.
(h) The Trustee hereby agrees that any Series
Account and each item of property (whether
investment property, financial asset, security
or instrument), other than cash, credited to
any Series Account shall be treated as a
"financial asset" within the meaning of
Section 8-102(A)(9) of the UCC or the
corresponding Section of the UCC in the
applicable State.
(i) If at any time the Securities
Intermediary shall receive an "entitlement
order" (within the meaning of Section 8-
102(A)(8) of the UCC or the corresponding
Section of the UCC in the applicable State
issued by the Trustee and relating to any
Series Account, the Securities Intermediary
shall comply with such entitlement order
without further consent by any other person.
The Trustee hereby agrees only to issue
entitlement orders at the written direction of
the Servicer. The Securities Intermediary
shall have no obligation to act, and shall be
fully protected in refraining from acting, in
respect of the financial assets credited to
any Series Account in the absence of such an
entitlement order.
(j) In the event that the Securities
Intermediary has or subsequently obtains by
agreement, operation of law or otherwise a
security interest in the Securities Accounts,
or any security entitlement credited thereto,
the Securities Intermediary hereby agrees that
such security interest shall be subordinate to
the security interest of the Trustee. The
financial assets and other items deposited to
the Series Accounts (or any other securities
account maintained in the name of the
Securities Intermediary for the benefit of the
Trustee) will not be subject to deduction, set-
off, banker's lien, or any other right in
favor of any person other than the Trustee.
(k) The Trustee, in such capacity, has not
entered into and, until termination of this
Agreement, will not enter into, any agreement
with any other person relating to any Series
Account, or any financial assets credited
thereto pursuant to which it has agreed or
will agree to comply with entitlement orders
(as defined in Section 8-102(a)(8) of the UCC
or the corresponding Section of the UCC in the
applicable State) of such person. No
financial asset will be registered in the name
of the Trustee, in such capacity, payable to
its order, or specially endorsed to it, except
to the extent such financial asset has been
endorsed to the Securities Intermediary or in
blank.
SECTION 4.5. Capitalized Interest Account.
On the Closing Date, the Trustee shall deposit
in the Capitalized Interest Account from the
proceeds of the sale of the Fixed Base
Certificates and certain other amounts
collected in respect of the Receivables prior
to the Cut-Off Date an amount equal to the FBC
Monthly Interest that will have accrued and be
due and payable to the Holders of the Fixed
Base Certificates on the first Distribution
Date (as determined by the Servicer). On the
first Distribution Date, the Servicer shall
direct the Trustee in writing to withdraw from
the Capitalized Interest Account for
distribution to the Holders of the Fixed Base
Certificates an amount equal to the FBC
Monthly Interest that is due and payable on
such Distribution Date.
SECTION 4.6. Retained Amount Account. The
Servicer shall direct the Trustee in writing
to deposit amounts in, and withdraw amounts
from, the Retained Amount Account as follows:
(a) Deposits into Retained Amount Account.
(i) If on any Business Day
before the occurrence of an Early
Amortization Event, the Required Series
Pool Balance exceeds the Series Pool
Balance, as and to the extent set forth
in Section 4.1(d) hereof Investor
Principal Collections will be deposited
into the Retained Amount Account until
the sum of the Series Pool Balance and
the amount of Investor Principal
Collections then on deposit in the
Retained Amount Account (the Investor
Component of the balance of the Retained
Amount Account) equals the Required
Series Pool Balance on such date.
(ii) If on any Business Day
during a Collection period that commences
before the occurrence of an Early
Amortization Event, the Required
Exchangeable Certificate Amount on such
day exceeds the sum of the Exchangeable
Holder's Interest, the aggregate amount
of Eligible Past Due Receivables and
Retained Exchangeable Amounts then on
deposit in the Retained Amount Account,
the Trustee shall, in accordance with the
written directions of the Servicer,
deposit into the Retained Amount Account
from amounts otherwise distributable to
the holder of the Exchangeable
Certificate the amount of such excess
(the aggregate of the amounts so
deposited into the Retained Amount
Account on any Business Day, the
Retained Exchangeable Amount).
(b) Withdrawals of Excess Amounts from
Retained Amount Account.
(i) If on any Business Day
before the occurrence of an Early
Amortization Event, the sum of the Series
Pool Balance and the Investor Component
of amounts on deposit in the Retained
Amount Account exceeds the Required
Series Pool Balance, the Trustee will, in
accordance with the written directions of
the Servicer, withdraw the Investor
Component of funds in the Retained Amount
Account up to the amount of such excess
and distribute such amount to the
Depositor.
(ii) If on any Business Day
before the occurrence of an Early
Amortization Event, the sum of the
Exchangeable Holder's Interest, the
aggregate amount of Eligible Past Due
Receivables and Retained Exchangeable
Amounts then on deposit in the Retained
Amount Account exceeds the Required
Exchangeable Certificate Amount, the
Trustee will, in accordance with the
written directions of the Servicer,
withdraw the Retained Exchangeable Amount
up to the amount of such excess and
distribute such amount to the holder of
the Exchangeable Certificate.
(c) Withdrawals Following Termination of
Revolving Period.
(i) On each Distribution Date
relating to a Collection Period that
commences after the termination of the
Revolving Period (and during or prior to
which no Early Amortization Event
occurs), the Trustee shall, in accordance
with the written directions of the
Servicer, withdraw from the Investor
Component of amounts on deposit in the
Retained Amount Account the portion of
any Controlled Amortization Amount or any
Investor Default Amount allocable to the
Fixed Base Invested Amount pursuant to
Section 4.9 that is not funded from
Investor Finance Charge Collections,
amounts on deposit in the Spread Account
and allocated therefor pursuant to
Section 4.7, reductions of the
Subordinated Invested Amount, or
reallocations of Subordinated Principal
Collections and shall deposit such
amounts in the Collection Account as FBC
Principal Collections for application
pursuant to Section 4.1(d)(i) to make
payment on such Distribution Date of such
amounts to the Holders of the Fixed Base
Certificates or release to the Depositor
for application pursuant to the
Receivables Purchase Agreement. On the
Distribution Date relating to the first
Collection Period during which an Early
Amortization Event occurs or which
commences after the occurrence of an
Early Amortization Event, the Trustee
shall withdraw, in accordance with the
written directions of the Servicer, the
Investor Component of amounts on deposit
in the Retained Amount Account and
deposit such funds into the Collection
Account as FBC Principal Collections for
application pursuant to Section 4.1(d)
and for distribution on such Distribution
Date.
(ii) On the earlier of the
Distribution Date on which the Fixed Base
Certificate Balance in reduced to zero or
the August 2006 Distribution Date, the
Trustee shall, in accordance with the
written directions of the Servicer,
withdraw, the Retained Exchangeable
Amount on deposit in the Retained Amount
Account and distribute such amount to the
holder of the Exchangeable Certificate.
(d) Withdrawals upon Series Termination or
Payment in Full of Fixed Base Certificates.
At the close of business of the Servicer on
the earlier of (i) the Series Termination Date
and (ii) the date on which the Fixed Base
Certificate Balance has been reduced to zero,
the balance, if any, remaining in the Retained
Amount Account shall be withdrawn and
transferred to the Depositor.
SECTION 4.7. Spread Account.
(a) If on any Determination Date the Servicer
determines that a Deficiency Amount exists,
the Servicer shall direct the Trustee in
writing to withdraw from the Spread Account
and deposit in the Collection Account on the
Related Distribution Date an amount equal to
the lesser of (i) the amount of such
Deficiency Amount less, during the Controlled
Amortization Period, any amounts deposited in
the Collection Account pursuant to Section
4.6(c), and (ii) the balance of the Spread
Account. Amounts so deposited in the
Collection Account shall be set aside therein
to fund (in whole or part) the amount of any
such Deficiency Amount. In the event that a
withdrawal is made from the Spread Account on
any Determination Date and the amount of such
withdrawal is less than the Deficiency Amount
calculated on such Determination Date, then
the amount withdrawn shall be applied in the
following priority, first, against the amounts
described in clause (i)(A) of the definition
of Deficiency Amount, second, against the
amounts described in clause (i)(B) of the
definition of Deficiency Amount, third,
against the amounts described in clause (i)(C)
of the definition of Deficiency Amount, and
fourth, against the amounts described in
clause (i)(D) of the definition of Deficiency
Amount.
(b) On any Determination Date relating to a
Collection Period that commences after the
termination of the Revolving Period (and
during or prior to which no Early Amortization
Event occurs), following the applications made
pursuant to clause (a) above, the Servicer
shall direct the Trustee in writing (i.e. in
the Distribution Date Statement and by the
following provisions) to reallocate from
amounts remaining on deposit in the Spread
Account as FBC Principal Collections and
deposit into the Collection Account on the
related Distribution Date the amount by which
the Controlled Amortization Amount due on the
Related Distribution Date exceeds amounts
allocated therefor pursuant to Sections
4.1(d), 4.1(e), and 4.9. On any Determination
Date relating to a Collection Period during
which an Early Amortization Event occurs,
following the applications made pursuant to
clause (a) above, the Servicer shall direct
the Trustee in writing (i.e. in the
Distribution Date Statement and by the
following provisions) to reallocate amounts
remaining on deposit in the Spread Account as
FBC Principal Collections and deposit into the
Collection Account on the related Distribution
Date (i) the amount by which the Fixed Base
Certificate Balance on the Related
Distribution Date exceeds amounts allocated
therefor, pursuant to Sections 4.1(d), 4.1(e),
and 4.9 and (ii) the amount by which any Make
Whole Premium due on the Related Distribution
Date (plus interest accrued thereon, to the
extent lawful, at the FBC Interest Rate)
exceeds amounts allocated therefor, and,
thereafter, any remaining amounts on deposit
in the Spread Account will be applied to fund
the remaining unfunded amounts described in
Section 4.1(c), in the order of priorities set
forth therein.
(c) A Spread Account Trigger shall be cured
if no Early Amortization Events have occurred
and (i) on or prior to the Distribution Date
in August 2002, all Spread Account Triggers
have been complied with for three consecutive
months or (ii) after the Distribution Date in
August 2002, all Spread Account Triggers have
been complied with for six consecutive months.
Promptly after a Spread Account Trigger has
been cured, the Servicer shall give written
notice of such cure to the Trustee.
(d) If a Spread Account Trigger has been
cured, all funds retained in the Spread
Account will be reallocated as Investor
Finance Charge Collections and applied
pursuant to the priorities set forth in
Section 4.1(c); provided, however, that (a) if
a Spread Account Trigger is cured following
the commencement of a Controlled Amortization
Period, funds retained in the Spread Account
will be transferred to the Collection Account
on the related Distribution Date and applied
to cover any Deficiency Amount and then in
reduction of the Fixed Base Certificate
Balance, to the extent of any unpaid
Controlled Amortization Amount then due and
any unreimbursed Investor Charge-Offs
allocated thereto, and then to fund the
remaining unfunded amounts described in
Section 4.1(c), in the order of priorities set
forth therein, and (b) if an Early
Amortization Event occurs prior to any such
cure, any remaining amounts on deposit in the
Spread Account will be transferred to the
Collection Account on the related Distribution
Date and applied on such date to cover any
Deficiency Amount and then in reduction of the
Fixed Base Certificate Balance until on such
date it is reduced to zero and, thereafter, to
fund any accrued and unpaid Make Whole Premium
(together with interest thereon, to the extent
lawful, at the FBC Interest Rate), and then to
fund the remaining unfunded amounts described
in Section 4.1(c), in the order of priorities
set forth therein.
(e) On the earlier of the August 2006
Distribution Date or the Distribution Date on
which the Fixed Base Certificate Balance is
reduced to zero, any amounts remaining on
deposit in the Spread Account after all of the
foregoing applications have been made will be
applied to cover any accrued and unpaid Make
Whole Premium (plus interest thereon at the
FBC Interest Rate). Thereafter, any amounts
remaining on deposit in the Spread Account
will be applied to reduce the Subordinated
Invested Amount to zero and the balance, if
any, will be released to the Depositor..
SECTION 4.8. Deficiency Amount. On each
Determination Date, the Servicer shall
determine whether a Deficiency Amount exists.
In the event the Deficiency Amount for such
Distribution Date is greater than zero, the
Servicer shall give the Trustee written notice
thereof on the date of computation, and shall
give the Trustee the direction specified in
Section 4.7.
SECTION 4.9. Investor Charge-Offs. (a) On
each Distribution Date, the Trustee will, in
accordance with the written directions of the
Servicer, apply the Investor Default Holdback
Amount to fund any Investor Default Amount as
set forth in Section 4.1(e). Thereafter, the
Trustee will, in accordance with the written
directions of the Servicer, fund any
Deficiency Amount that represents Investor
Default Amounts not funded by the Investor
Default Holdback Amount from amounts on
deposit in the Spread Account and allocated
therefor pursuant to Section 4.7. Thereafter,
the Subordinated Invested Amount shall be
reduced by the amount of any remaining
Investor Default Amount for such Distribution
Date (a Subordinated Reduction). In the
event that a Subordinated Reduction would
cause the Subordinated Invested Amount to be a
negative number, the Subordinated Invested
Amount shall instead be reduced to zero, and
the Fixed Base Invested Amount shall be
reduced (not below zero) by the amount which
the Subordinated Invested Amount would have
been reduced below zero, except to the extent
that there are Subordinated Principal
Collections available to fund such amount
pursuant to Section 4.1(d)(ii) or amounts are
available to be withdrawn from the Investor
Component of amounts on deposit in the
Retained Amount Account and applied thereto
(such reduction to the Fixed Base Invested
Amount, a FBC Investor Charge-Off).
FBC Investor Charge-Offs shall be
reimbursed and the Fixed Base Invested Amount
shall thereupon be increased during the
Revolving Period or any related Distribution
Date (but not by an amount in excess of the
aggregate FBC Investor Charge-Offs), or the
Fixed Base Certificate Balance reduced without
corresponding reduction in the Fixed Base
Invested Amount to the extent such
reimbursements are made by payments of
principal to the Holders of the Fixed Base
Certificates on any Distribution Date pursuant
to Section 4.1(f)(i)(B) or (C), by the amount
of Investor Finance Charge Collections
reallocated as FBC Principal Collections for
that purpose pursuant to Section 4.1(c)(v),
from Subordinated Principal Collections
retained in the Collection Account pursuant to
Sections 4.1(d)(ii)(A)(2), 4.1(d)(ii)(B)(3)
and 4.1(d)(ii)(C)(2) hereof, from withdrawals
of the Investor Component of amounts on
deposit in the Retained Amount Account, and
from FBC Principal Collections retained in the
Collection Account pursuant to Sections
4.1(d)(i)(A)(1) and 4.1(d)(i)(B)(2).
(b) Subordinated Investor
Charge-Offs. Subordinated Reductions and
amounts withdrawn from Subordinated Principal
Collections pursuant to Sections
4.1(d)(ii)(A)(1), 4.1(d)(ii)(A)(2),
4.1(d)(ii)(B)(1), 4.1(d)(ii)(B)(2),
4.1(d)(ii)(B)(3), 4.1(d)(ii)(C)(1),
4.1(d)(ii)(C)(2) and 4.1(d)(ii)(C)(4) are
collectively referred to herein as
Subordinated Investor Charge-Offs.
Subordinated Investor Charge-Offs will result
in a reduction in the Subordinated Invested
Amount. Subordinated Investor Charge-Offs
shall be reimbursed to the extent that
Investor Finance Charge Collections are
reallocated as Subordinated Principal
Collections pursuant to Section 4.1(c)(vi)
hereof and (i) the Subordinated Invested
Amount increased during the Revolving Period
or any related Distribution Date (but not by
an amount in excess of the aggregate
Subordinated Investor Charge-Offs), or (ii) to
the extent such reimbursements are made by
payments of principal to the holder of the
Subordinated Certificate pursuant to Section
4.1(f)(i)(B) or (C), made without further
reduction to the Subordinated Invested Amount.
Reimbursements of Subordinated Investor
Charge-Offs will not be made in amounts in
excess of the aggregate amount of Subordinated
Investor Charge-Offs.
SECTION 4.10. Trustee Expenses Associated
with Servicing Assumption.
(a) The Servicer shall maintain a letter of
credit or surety bond in amount not to exceed
$200,000 (or such other amount as may be
agreed to in writing by the Servicer and the
Trustee), to be used to cover the reasonable
costs and expenses of the Trustee associated
with the Trustee's assumption of Servicing
duties. The requirements of this Section
4.10(a) shall not be deemed to have been met
until the Trustee shall have approved in
writing the form and substance of any such
letter of credit or surety bond, such approval
to not be unreasonably withheld.
(b) In the event of the commencement of an
Early Amortization Period or a Servicer
Default resulting in the assumption of
servicing duties by the Trustee, the Trustee
may draw upon the letter of credit or surety
bond in order to pay the reasonable costs and
expenses of the Trustee in connection with the
performance of its duties in connection with
such event, and shall provide to the Servicer
in writing an itemized report of each cost and
expense, the related duty and action
undertaken and the name of the recipient of
the related payment within three Business Days
of each such draw.
(c) Amounts drawn upon the letter of credit
shall be reimbursed from amounts allocated
pursuant to Section 4.1(c)(x).
(d) The Servicer may replace any then
existing letter of credit or surety bond with
either a letter of credit or a surety bond
with the written the consent of the Trustee,
such consent not to be unreasonably withheld.
ARTICLE V
Distributions and Reports
SECTION 5.1. Distributions. On each
Distribution Date, the Trustee shall
distribute to the Certificateholders of record
on the preceding Record Date (other than as
provided in Section 12.02 of the Agreement
respecting a final distribution) such
Certificateholder's pro rata share of the
amounts required to be distributed pursuant to
Article IV hereof and in accordance with the
written direction of the Servicer. Except as
provided in Section 12.02 of the Agreement
with respect to a final distribution,
distributions to Certificateholders hereunder
shall be made by wire transfer in immediately
available funds.
SECTION 5.2. Other Notices to Holders.
Notwithstanding any other provision of the
Agreement or this Series Supplement to the
contrary, the Trustee and the Servicer shall
promptly deliver to the initial Holders of the
Fixed Base Certificates a copy of each notice,
statement or other document received or
generated by it pursuant to Sections 3.03(b),
3.04(b), 3.05, 3.06, 9.01 or 10.01 of the
Agreement; provided, however, that the Trustee
shall not be required to deliver to the
initial Holders copies of notices, statements
or other documents received from the Servicer
and for which the Servicer is required to
deliver such notices, statements or other
documents directly to the Holders and vice
versa.
ARTICLE VI
The Certificates
SECTION 6.1. The Fixed Base Certificates.
The __% Fixed Base Credit Card Certificates,
Series 1999-1 (the Fixed Base Certificates)
upon original issuance, will be issued in
registered form in the form of one or more
definitive typewritten certificates
substantially in the form of Exhibit A-1
hereto, to be executed and delivered by, or on
behalf of, the Depositor to the Trustee for
authentication. The Trustee shall, upon the
written request of the Depositor, authenticate
and deliver the Fixed Rate Certificates to the
Person or Persons designated in such notice.
SECTION 6.2. Transfer Restrictions.
(a) The Trustee shall not authenticate and
deliver to any Person any Fixed Base
Certificate unless it contains a legend in
substantially the following form:
THIS CERTIFICATE HAS NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE 1933 ACT), OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION IN RELIANCE ON
EXEMPTIONS PROVIDED BY THE 1933 ACT AND SUCH
STATE OR FOREIGN SECURITIES LAWS. THE
CERTIFICATES ARE ELIGIBLE FOR PURCHASE
PURSUANT TO RULE 144A UNDER THE 1933 ACT. NO
RESALE OR OTHER TRANSFER OF THIS CERTIFICATE
SHALL BE MADE UNLESS SUCH RESALE OR TRANSFER
(A) IS MADE IN ACCORDANCE WITH SECTION 6.2 OF
THE SERIES 1999-1 SUPPLEMENT TO THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN AND
(B) IS MADE EITHER (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
1933 ACT, (ii) IN A TRANSACTION (OTHER THAN A
TRANSACTION IN CLAUSE (iv) BELOW) EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND APPLICABLE STATE AND FOREIGN SECURITIES
LAWS, (iii) TO GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION (THE DEPOSITOR) OR (iv) TO A
PERSON WHO THE TRANSFEROR OF THIS CERTIFICATE
REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE 1933 ACT THAT IS AWARE THAT THE
RESALE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR TO AN INSTITUTIONAL
ACCREDITED INVESTOR UNDER RULE 501(a)(1),
(2), (3) OR (7) UNDER THE 1933 ACT. IN THE
EVENT THAT THE TRANSFER OF A CERTIFICATE IS TO
BE MADE AS DESCRIBED IN CLAUSE (ii) OF THE
PRECEDING SENTENCE, THE PROSPECTIVE INVESTOR
IS REQUIRED TO DELIVER AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE DEPOSITOR TO THE EFFECT THAT
SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE 1933 ACT OR ANY APPLICABLE STATE OR
FOREIGN SECURITIES LAWS. THE PROSPECTIVE
TRANSFEREE IN A TRANSFER OF A CERTIFICATE TO
BE MADE AS DESCRIBED IN CLAUSES (ii) AND (iv)
ABOVE MUST DELIVER TO THE TRUSTEE A
REPRESENTATION LETTER REQUIRED BY SECTION 6.2
OF THE SERIES 1999-1 SUPPLEMENT TO THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
PROSPECTIVE PURCHASERS OF THE CERTIFICATES ARE
HEREBY NOTIFIED THAT THE SELLER OF ANY
CERTIFICATES MAY BE RELYING ON THE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SECTION
5 OF THE ACT PROVIDED BY RULE 144A UNDER THE
ACT.
THIS CERTIFICATE OR A BENEFICIAL INTEREST
HEREIN MAY NOT BE TRANSFERRED UNLESS THE
TRUSTEE HAS RECEIVED (I) A CERTIFICATE FROM
THE TRANSFEREE TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN,
TRUST OR ACCOUNT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED (ERISA), OR SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE CODE), OR A
GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF
ERISA OR SECTION 414(d) OF THE CODE SUBJECT TO
ANY FEDERAL STATE OR LOCAL LAW WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (SIMILAR
LAW) (EACH, A BENEFIT PLAN) AND IS NOT AN
ENTITY INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL
ACCOUNT IF THE ASSETS IN ANY SUCH ACCOUNTS
CONSTITUTE PLAN ASSETS FOR PURPOSES OF
REGULATION SECTION 2510.3-101 OF ERISA, WHOSE
UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS
BY REASON OF A BENEFIT PLAN'S INVESTMENT IN
THE ENTITY (SUCH BENEFIT PLAN OR ENTITY, A
BENEFIT PLAN INVESTOR) AND (II) A
CERTIFICATE TO THE EFFECT THAT IF THE
TRANSFEREE IS A PARTNERSHIP, GRANTOR TRUST OR
S CORPORATION FOR FEDERAL INCOME TAX PURPOSES
(A FLOW-THROUGH ENTITY), ANY CERTIFICATES
OWNED BY SUCH FLOW-THROUGH ENTITY WILL
REPRESENT LESS THAN 50% OF THE VALUE OF ALL
THE ASSETS OWNED BY SUCH FLOW-THROUGH ENTITY
AND NO SPECIAL ALLOCATION OF INCOME, GAIN,
LOSS, DEDUCTION OR CREDIT FROM SUCH
CERTIFICATES WILL BE MADE AMONG THE BENEFICIAL
OWNERS OF SUCH FLOW-THROUGH ENTITY.
IN ADDITION, NO RESALE OR OTHER TRANSFER
OF THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE PERMITTED UNLESS IMMEDIATELY AFTER
GIVING EFFECT TO SUCH RESALE OR OTHER
TRANSFER, THERE WOULD BE FEWER THAN 100
CERTIFICATEHOLDERS.
(b) No transfer of any Fixed Base
Certificates shall be made unless such resale
or transfer is made (i) pursuant to an
effective registration statement under the
1933 Act, (ii) in a transaction (other than a
transaction in clause (iv) below) exempt from
the registration requirements of the 1933 Act
and applicable state and foreign securities
laws, (iii) to the Depositor or (iv) to a
Person who the transferor of such Fixed Base
Certificate reasonably believes is a qualified
institutional buyer within the meaning of Rule
144A under the 1933 Act and that is aware that
the resale or other transfer is being made in
reliance on Rule 144A or to an institutional
accredited investor as defined in Rule
501(a)(1), (2), (3) or (7) under the 1933 Act
(an Institutional Accredited Investor). In
the event that a transfer is to be made as
described in clause (ii) of the preceding
sentence, the prospective transferee shall
deliver or cause to be delivered an Opinion of
Counsel in form and substance satisfactory to
the Trustee and the Depositor to the effect
that such transfer may be made without
registration under the 1933 Act or any
applicable state or foreign securities laws.
In the event that a transfer is to be made to
an Institutional Accredited Investor as
described in clause (iv) or in a transaction
as described in clause (ii), the Trustee shall
require that the transferee execute a
representation letter acceptable to and in
form and substance satisfactory to the Trustee
(provided that the form attached as Exhibit C
or Exhibit D, as applicable, shall be deemed
acceptable if it is completed in a manner
acceptable to the Trustee) certifying to the
Trustee the facts surrounding such transfer,
which representation letter shall not be an
expense of the Trustee, the Depositor or the
Servicer. In the case of a transfer under
either clause (ii) or clause (iv), the Holder
of a Fixed Base Certificate desiring to effect
such transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor and the
Servicer against any liability that may result
if the transfer is not so exempt or is not
made in accordance with the 1933 Act and such
state and foreign securities laws. Neither
the Depositor, the Servicer nor the Trustee is
under any obligation to register any Fixed
Base Certificates under the 1933 Act or any
applicable state or foreign securities laws.
Prospective purchasers of Fixed Base
Certificates are hereby notified that the
seller of any Fixed Base Certificate may be
relying on the exemption from the registration
requirements of Section 5 of the Act provided
by Rule 144A under the Act.
(c) Fixed Base Certificates or beneficial
interests therein may not be transferred
unless the Trustee has received a certificate
to the effect that if the transferee is a
partnership, grantor trust or S corporation
for federal income tax purposes (a
Flow-Through Entity), any Fixed Base
Certificates owned by such Flow-Through Entity
will represent less than 50% of the value of
all the assets owned by such Flow-Through
Entity and no special allocation of income,
gain, loss, deduction or credit from such
Fixed Base Certificates will be made among the
beneficial owners of such Flow-Through Entity.
(d) No Fixed Base Certificate or beneficial
interest therein may be transferred to a
transferee (other than the Initial Holder) who
is an employee benefit plan, trust or account,
subject to ERISA, or subject to Section 4975
of the Code, or a governmental plan defined in
Section 3(32) of ERISA or Section 414(d) of
the Code subject to any federal, state or
local law which is, to a material extent,
similar to the foregoing provisions of ERISA
or the Code, or to an entity, including an
insurance company separate account or an
insurance company general account if the
assets in any such accounts constitute Plan
Assets for the purposes of regulation Section
2510-3101 of ERISA, whose underlying assets
include Benefit Plan assets by reason of a
Benefit Plan's investment in the entity.
Unless the Trustee shall have received a
certificate from the transferee making the
representations with respect to such ERISA
matters set forth in Exhibit C hereto, the
Trustee shall not permit a transfer of Fixed
Base Certificates to such transferee.
(e) The Depositor shall, whenever the Trust
is not subject to Section 13 or 15(d) of the
Exchange Act, make available, upon request, to
any holder of such Fixed Base Certificates in
connection with any sale thereof and any
prospective purchaser of Fixed Base
Certificates from such holder the information
specified in Rule 144A(d)(4) under the 1933
Act.
(f) In addition, no resale or other transfer
of the Fixed Base Certificates or any interest
therein shall be permitted unless immediately
after giving effect to such resale or other
transfer, there would be fewer than 100 Fixed
Base Certificateholders.
(g) Prior to due presentation of a
Certificate for registration of transfer, the
Trustee, the Certificate Registrar and any of
their respective agents may treat the Person
in whose name any Certificate is registered as
the owner of such Certificate for the purpose
of receiving distributions and for all other
purposes whatsoever, and neither the Trustee,
the Certificate Registrar nor any of their
respective agents shall be affected by any
notice to the contrary.
(h) The Trustee may conclusively rely and
shall be fully protected in acting upon any
certificate or investment representation
letter delivered to it under this Article VI
or under Article VI of the Agreement.
SECTION 6.3. The Subordinated Certificate.
The Subordinated Certificate will be issued in
definitive registered form, substantially in
the form of Exhibit A-2, and shall upon issue,
be executed and delivered by the Depositor to
the Trustee for authentication. The Trustee
shall authenticate and deliver the
Subordinated Certificate to the Depositor
simultaneously with its delivery of the Fixed
Base Certificates. The Subordinated
Certificate shall not be transferable.
SECTION 6.4. The Exchangeable Certificate.
The Exchangeable Certificate will be issued in
definitive registered form, and shall be
executed, authenticated and delivered as
provided in Section 6.02 of the Agreement.
The Exchangeable Certificate shall be a single
certificate and shall represent the entire
Depositor Interest.
ARTICLE VII
Early Amortization Events; Servicer Defaults;
Merger of Servicer
SECTION 7.1. Additional Early Amortization
Events. If any one or more of the following
events shall occur:
(a) failure on the part of the
Depositor (i) to make any payment or
deposit required to be made by the
Depositor by the terms of (A) the
Agreement or (B) this Series
Supplement, within two Business Days
of Depositor's receipt of written
notice of such nonpayment or (ii)
duly to observe or perform in any
material respect any covenants or
agreements of the Depositor set
forth in the Agreement or this
Series Supplement, which failure to
observe or perform has a material
adverse effect on the
Certificateholders and which
continues unremedied for a period of
30 days after the earlier of (A) the
date the Depositor has knowledge
thereof and (B) the date on which
written notice of such failure,
requiring the same to be remedied,
shall have been given to the
Depositor by the Trustee, or to the
Depositor and the Trustee by the
Holders of Certificates representing
more than 50% of the Invested
Amount, and continues to affect
materially and adversely the
interests of the Certificateholders
for such period; or
(b) the balance of the
Investor Component of the Retained
Amount Account is required to exceed
$3.5 million for 60 consecutive
days; or
(c) the Subordinated Invested
Amount is reduced by a writedown of
33% or more of its initial balance
on a day when the Fixed Base
Invested Amount is greater than
zero; or
(d) the Fixed Base Certificate
Balance is not reduced to zero on or
before the Expected Final
Distribution Date, or any Controlled
Amortization Amount is not paid in
full when due; or
(e) any representation or
warranty made by the Depositor in
the Agreement or this Series
Supplement, or any information
contained in a computer file or
microfiche list or written list
required to be delivered by the
Depositor pursuant to Section 2.01,
2.06 or 2.08 of the Agreement, (i)
shall prove to have been incorrect
in any material respect when made or
when delivered, which continues to
be incorrect in any material respect
for a period of 60 days after the
earlier of (A) the date the
Depositor has knowledge thereof and
(B) the date on which written notice
of such failure, requiring the same
to be remedied, shall have been
given to the Depositor by the
Trustee, or to the Depositor and the
Trustee by the Holders of
Certificates representing more than
50% of the Invested Amount, and (ii)
as a result of which the interests
of the Certificateholders are
materially and adversely affected
and continue to be materially and
adversely affected for such period;
provided, however, that an Early
Amortization Event pursuant to this
subsection 7.1(e) shall not be
deemed to have occurred hereunder if
the Depositor has accepted
reassignment of or repurchased the
related Receivable, or all of such
Receivables, if applicable, during
such period in accordance with the
provisions of the Agreement; or
(f) the rating of the Fixed
Base Certificates is withdrawn or
downgraded below BBB;
(g) the sum of (A) the
Exchangeable Holder's Interest and
(B) the aggregate principal amount
of any Eligible Past Due Receivables
and (C) the Retained Exchangeable
Amount is reduced below the Required
Exchangeable Certificate Amount;
(h) the Required Series Pool
Balance shall exceed the Series Pool
Balance during any Block Period and
the Depositor shall fail to (i)
designate additional Charge Accounts
as Supplemental Accounts as required
pursuant to Section 2.08(c) of the
Agreement or (ii) convey Receivables
in Supplemental Accounts to the
Trust within five (5) Business Days
after the day on which it is
required to convey such Receivables
pursuant to the Agreement;
(i) taken as an average of the
relevant calculation for each of the
three preceding calendar months:
(i) the Portfolio Yield
is less than 12.0%;
(ii) the Default Rate
exceeds 10.0%;
(iii) the Excess
Spread is less than 1.0%;
(iv) the Delinquency Rate
exceeds 3.00%; or
(v) the Monthly Payment
Rate is less than 17.5%.
then, in the case of any such event
described in this Section 7.1, subject to
applicable law, an Early Amortization Event
shall occur without any notice or other action
on the part of the Trustee or the
Certificateholders (except as otherwise
provided in any such subsection), immediately
upon the occurrence of such event.
SECTION 7.2. Waiver. Notwithstanding the
declaration or occurrence of an Early
Amortization Period, the Holders of
Certificates representing more than 50% of the
FBC Invented Amount may, by written notice to
the Trustee, waive such Early Amortization
Event. Such waiver shall be binding upon all
Fixed Base Certificateholders and the other
parties to this Series Supplement. In the
case of such a waiver, all parties hereto and
all such Certificateholders shall be restored
to their former positions and rights hereunder
and any such Early Amortization Period shall
be deemed not to be continuing; provided,
however, this Section 7.2 shall not apply in
the case that a Servicer Default described in
clause (a) or (d) of Section 7.3 results in an
Early Amortization Event of the type described
in Section 9.01(c) of the Agreement.
SECTION 7.3. Additional Servicer Defaults.
If any one of the following events shall occur
and be continuing with respect to the
Servicer, it shall be deemed a Servicer
Default, subject to the provisions of Section
10.01 of the Agreement:
(a) the replacement for any reason of
Gottschalks as the Servicer; provided,
however, a Servicer Default shall not be
deemed to have occurred if (i) such Successor
Servicer, immediately after giving effect to
such transaction, has a financial condition,
taking into account such elements as (1)
liquidity, (2) leverage position and (3) net
worth equal to or stronger than Gottschalks,
and (ii) such Servicer has been appointed with
Consent of Certificateholders, such consent
not to be unreasonably withheld in accordance
with Section 8.04 of the Agreement.
(b) the Servicer shall have received a
qualified opinion from its Independent
Certified Public Accountants arising from the
discovery of an accounting irregularity.
(c) the Servicer's Adjusted Net Worth,
determined on any day in accordance with
generally accepted accounting principles shall
be less than the greater of (i) $70.0 million
or (ii) the amount stipulated in the
Servicer's line of credit agreement with
Congress Financial Corporation, Western (or
any replacement line of credit).
(d) a final judgment, claim, suit, or fine
shall have been entered against, or a
nonappealable fine imposed upon, the Servicer
which creates a liability of more than
$1,000,000 in excess of insured amounts and
has not been stayed (by appeal or otherwise),
vacated, discharged or otherwise satisfied
within 60 calendar days of the entry of such
final judgement.
(e) Gottschalks fails to maintain a credit
facility equal to or greater than the lesser
of (i) $80 million or (ii) $95 million less
any amounts raised subsequent to the Closing
Date pursuant to any offerings of equity
securities or offerings of subordinated debt
whose maturity extends beyond the Distribution
Date in August 2004.
(f) Xxx Xxxxxxxxx (i) has become deceased,
(ii) has been rendered unable to work for a
period of six consecutive months, (iii) has
resigned from Gottschalks or (iv) has
otherwise ceased working for Gottschalks and
has not been replaced within 150 days (after
the initial instance described in (i), (ii),
(iii) or (iv) above) with a replacement which
is acceptable to the Holders holding more than
50% of the Fixed Base Invested Amount (whose
acceptance will not be unreasonably withheld).
SECTION 7.4. Merger or Consolidation of, or
Assumption of, the Obligations of the
Servicer. Subject to section 8.04 of the
Agreement, the Servicer shall not consolidate
with or merge into any other entity or convey
or transfer its properties and assets
substantially as an entirety to any Person,
unless:
(a) immediately after giving effect to such
transaction, the financial condition of the
Servicer, taking into account such elements as
(i) liquidity, (ii) leverage position and
(iii) net worth shall be equal to or stronger
than Gottschalks; and
(b) the Servicer shall have obtained the
consent of holders of more than 50% of the
Fixed Base Invested Amount (not to be
unreasonably withheld in the event the Rating
Agency Condition shall have been satisfied).
ARTICLE VIII
Optional Repurchase
SECTION 8.1. Optional Repurchase. On any
Distribution Date occurring after the date on
which the Fixed Base Invested Amount is
reduced to 10% or less of the Initial Fixed
Base Invested Amount, the Servicer shall have
the option to purchase the entire amount of,
but not less than the entire amount of, the
Receivables, at a purchase price equal to the
Optional Purchase Price for such Distribution
Date.
(a) The Depositor shall give the Servicer and
the Trustee at least ten (10) days' prior
written notice of the Distribution Date on
which the Depositor intends to exercise such
purchase option. Not later than 12:00 noon,
New York City time, on such Distribution Date
the Servicer shall deposit the Optional
Purchase Price into the Collection Account in
immediately available funds. Such purchase
option is subject to payment in full of the
Optional Purchase Price. The Optional
Purchase Price shall be distributed as set
forth in Section 9.1(a) hereof.
ARTICLE IX
Final Distributions
SECTION 9.1. Final Distributions. (a) The
amount to be deposited into the Collection
Account by the Depositor with respect to the
purchase of the Fixed Base Certificates
pursuant to Section 2.03 of the Agreement
shall equal the Optional Purchase Price as of
the first Distribution Date following the
Collection Period in which the obligation
arises under the Agreement. The Optional
Purchase Price deposited into the Collection
Account pursuant to this Section 9.1 or
Section 8.1 of this Series Supplement and
allocated to Series 1999-1, shall be applied
by the Trustee at the written direction of the
Servicer (i.e. as set forth in the
Distribution Date Statement and below), not
later than 2:00 p.m., New York City time, on
the Distribution Date on which such amounts
are deposited, provided that if such deposit
is not made prior to 1:00 p.m., New York City
time, the Trustee shall not be required to
make such applications until the following
Business Day (or, in either case, if such date
is not a Distribution Date, on the immediately
following Distribution Date). The Optional
Purchase Price shall be applied on such
Distribution Date to pay following amounts in
the following order of priority: (i) accrued
and unpaid interest on the unpaid Fixed Base
Certificate Balance (including any FBC
Carryover Interest), (ii) the Fixed Base
Certificate Balance on such Distribution Date
and (iii) any accrued and unpaid Make Whole
Premium (together with interest thereon, to
the extent lawful, at the FBC Interest Rate).
(b) Termination Proceeds deposited into the
Collection Account pursuant to Section
12.02(c) of the Agreement and allocated to
Series 1999-1 and the Certificates, shall be
applied by the Trustee at the written
direction of the Servicer (i.e. as set forth
in the Distribution Date Statement and below),
not later than 2:00 p.m., New York City time,
on the Distribution Date on which such amounts
are deposited, provided that if such deposit
is not made prior to 1:00 p.m., New York City
time, the Trustee shall not be required to
make such applications until the following
Business Day (or, in either case, if such date
of distribution is not a Distribution Date, on
the immediately following Distribution Date).
Termination Proceeds shall be applied to pay
following amounts in the following order of
priority: (i) all accrued and unpaid interest
on the unpaid Fixed Base Certificate Balance
(including any FBC Carryover Interest), (ii)
the Fixed Base Certificate Balance, (iii) any
accrued and unpaid Make Whole Premium
(together with interest thereon, to the extent
lawful, at the FBC Interest Rate), (iv) any
unreimbursed Subordinated Investor Charge-Offs
and (v) the Subordinated Invested Amount.
(c) Trust Liquidation Proceeds deposited into
the Collection Account pursuant to Section
9.02(c) of the Agreement and allocated to
Series 1999-1 shall be applied by the Trustee
at the written direction of the Servicer (i.e.
as set forth in the Distribution Date
Statement and below), not later than 2:00
p.m., New York City time, on the Distribution
Date on which such amounts are deposited,
provided that if such deposit is not made
prior to 1:00 p.m., New York City time, the
Trustee shall not be required to make such
applications until the following Business Day
(or, in either case, if such date of
distribution is not a Distribution Date, on
the immediately following Distribution Date).
Trust Liquidation Proceeds shall be applied to
pay following amounts in the following order
of priority: (i) all accrued and unpaid
interest on the unpaid Fixed Base Certificate
Balance (including any FBC Carryover
Interest), (ii) the Fixed Base Certificate
Balance, (iii) any accrued and unpaid Make
Whole Premium (together with interest thereon,
to the extent lawful, at the FBC Interest
Rate), (iv) any unreimbursed Subordinated
Investor Charge-Offs and (v) the Subordinated
Invested Amount.
(d) Notwithstanding anything to the contrary
contained in this Series Supplement or the
Agreement, any distribution made pursuant to
this Section 9.1 shall be deemed to be a final
distribution pursuant to Section 12.02 of the
Agreement with respect to the Certificates.
Any such final distribution shall be made no
later than the August 2006 Distribution Date.
(e) Notwithstanding Section 12.02 of the
Agreement, no Certificateholder shall be
required to surrender its Investor
Certificate(s) in order to receive its final
distribution under the Agreement and this
Series Supplement.
ARTICLE X
Miscellaneous Provisions
SECTION 10.1. Ratification of Agreement. As
amended and supplemented by this Series
Supplement, the Agreement is ratified and
confirmed and the Agreement as so amended and
supplemented by this Series Supplement, shall
be read, taken and construed as one and the
same instrument.
SECTION 10.2. Counterparts. This Series
Supplement may be executed in two or more
counterparts, each of which when so executed
shall be deemed to be an original, but all of
which shall together constitute but one and
the same instrument.
SECTION 10.3. Governing Law. THIS SERIES
SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO ITS CONFLICTS OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.4. Rating Agency Notice. No
amendment or waiver with respect to any Early
Amortization Event shall be effective until
such time as the Rating Agency has consented
to such waiver.
SECTION 10.5. Additional Document Delivery on
First Distribution Date. On the Distribution
Date in April 1999, the Servicer shall deliver
to each Holder that has purchased Fixed Base
Certificates directly from the Depositor an
agreed upon procedures letter prepared by its
Independent Certified Public Accountants which
confirms the accuracy of data provided in the
Distribution Date Statement delivered on such
Distribution Date.
IN WITNESS WHEREOF, the Depositor,
the Servicer and the Trustee have caused this
Series Supplement to be duly executed by their
respective officers as of the day and year
first above written.
GOTTSCHALKS CREDIT RECEIVABLES CORPORATION, as
Depositor
By: \s\ Xxxxxxx Xxxxx
Title: President
GOTTSCHALKS INC., as Servicer
By: \s\ Xxx Xxxxxxxxx
Title: President
BANKERS TRUST COMPANY, not in its individual
capacity but solely as Trustee
By: \s\ Xxxxxxx Xxxxxx
Title: Vice President
SCHEDULE I
List of Series Accounts
Bankers Trust Company
ABA # 000000000
ACCT:
REF: Gottschalks 1999-1
Attn:
Gottschalks Credit Card Master Trust Series
1999-1 Capitalized Interest Account:
Gottschalks Credit Card Master Trust Series
1999-1 Retained Amount Account:
Gottschalks Credit Card Master Trust Series
1999-1 Spread Account:
EXHIBIT A-1
FORM OF FIXED BASE CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
1933 ACT), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION IN RELIANCE ON
EXEMPTIONS PROVIDED BY THE 1933 ACT AND SUCH
STATE OR FOREIGN SECURITIES LAWS. THE
CERTIFICATES ARE ELIGIBLE FOR PURCHASE
PURSUANT TO RULE 144A UNDER THE 1933 ACT. NO
RESALE OR OTHER TRANSFER OF THIS CERTIFICATE
SHALL BE MADE UNLESS SUCH RESALE OR TRANSFER
(A) IS MADE IN ACCORDANCE WITH SECTION 6.2 OF
THE SERIES 1999-1 SUPPLEMENT TO THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN AND
(B) IS MADE EITHER (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
1933 ACT, (ii) IN A TRANSACTION (OTHER THAN A
TRANSACTION IN CLAUSE (iv) BELOW) EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND APPLICABLE STATE AND FOREIGN SECURITIES
LAWS, (iii) TO GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION (THE DEPOSITOR) OR (iv) TO A
PERSON WHO THE TRANSFEROR OF THIS CERTIFICATE
REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE 1933 ACT THAT IS AWARE THAT THE
RESALE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR TO AN INSTITUTIONAL
ACCREDITED INVESTOR UNDER RULE 501(a)(1),
(2), (3) OR (7) UNDER THE 1933 ACT. IN THE
EVENT THAT THE TRANSFER OF A CERTIFICATE IS TO
BE MADE AS DESCRIBED IN CLAUSE (ii) OF THE
PRECEDING SENTENCE, THE PROSPECTIVE INVESTOR
IS REQUIRED TO DELIVER AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE DEPOSITOR TO THE EFFECT THAT
SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE 1933 ACT OR ANY APPLICABLE STATE OR
FOREIGN SECURITIES LAWS. THE PROSPECTIVE
TRANSFEREE IN A TRANSFER OF A CERTIFICATE TO
BE MADE AS DESCRIBED IN CLAUSES (ii) AND (iv)
ABOVE MUST DELIVER TO THE TRUSTEE A
REPRESENTATION LETTER REQUIRED BY SECTION 6.2
OF THE SERIES 1999-1 SUPPLEMENT TO THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
PROSPECTIVE PURCHASERS OF THE CERTIFICATES ARE
HEREBY NOTIFIED THAT THE SELLER OF ANY
CERTIFICATES MAY BE RELYING ON THE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SECTION
5 OF THE ACT PROVIDED BY RULE 144A UNDER THE
ACT.
THIS CERTIFICATE OR A BENEFICIAL INTEREST
HEREIN MAY NOT BE TRANSFERRED UNLESS THE
TRUSTEE HAS RECEIVED (I) A CERTIFICATE FROM
THE TRANSFEREE TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN,
TRUST OR ACCOUNT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED (ERISA), OR SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE CODE), OR A
GOVERNMENTAL PLAN DEFINED IN SECTION 3(32) OF
ERISA OR SECTION 414(d) OF THE CODE SUBJECT TO
ANY FEDERAL STATE OR LOCAL LAW WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (SIMILAR
LAW) (EACH, A BENEFIT PLAN) AND IS NOT AN
ENTITY INCLUDING AN INSURANCE COMPANY SEPARATE
ACCOUNT OR AN INSURANCE COMPANY GENERAL
ACCOUNT IF THE ASSETS IN ANY SUCH ACCOUNTS
CONSTITUTE PLAN ASSETS FOR PURPOSES OF
REGULATION SECTION 2510.3-101 OF ERISA, WHOSE
UNDERLYING ASSETS INCLUDE BENEFIT PLAN ASSETS
BY REASON OF A BENEFIT PLAN'S INVESTMENT IN
THE ENTITY (SUCH BENEFIT PLAN OR ENTITY, A
BENEFIT PLAN INVESTOR) AND (II) A
CERTIFICATE TO THE EFFECT THAT IF THE
TRANSFEREE IS A PARTNERSHIP, GRANTOR TRUST OR
S CORPORATION FOR FEDERAL INCOME TAX PURPOSES
(A FLOW-THROUGH ENTITY), ANY CERTIFICATES
OWNED BY SUCH FLOW-THROUGH ENTITY WILL
REPRESENT LESS THAN 50% OF THE VALUE OF ALL
THE ASSETS OWNED BY SUCH FLOW-THROUGH ENTITY
AND NO SPECIAL ALLOCATION OF INCOME, GAIN,
LOSS, DEDUCTION OR CREDIT FROM SUCH
CERTIFICATES WILL BE MADE AMONG THE BENEFICIAL
OWNERS OF SUCH FLOW-THROUGH ENTITY.
IN ADDITION, NO RESALE OR OTHER TRANSFER
OF THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE PERMITTED UNLESS IMMEDIATELY AFTER
GIVING EFFECT TO SUCH RESALE OR OTHER
TRANSFER, THERE WOULD BE FEWER THAN 100
CERTIFICATEHOLDERS.
No. $
GOTTSCHALKS CREDIT CARD MASTER TRUST
7.664% FIXED BASE CERTIFICATE
SERIES 1999-1
This certifies that
(the Fixed Base Certificateholder) is the
registered owner of a fractional undivided
interest in certain assets of a trust (the
Trust) created pursuant to the Pooling and
Servicing Agreement, dated as of March 1,
1999, among Gottschalks Credit Receivables
Corporation, as depositor (the Depositor),
Gottschalks Inc., as servicer (the
Servicer), and Bankers Trust Company, as
trustee (the Trustee) (the Pooling and
Servicing Agreement), as supplemented by the
Series 1999-1 Supplement dated as of March 1,
1999, among the Depositor, the Servicer and
the Trustee (the Series Supplement).
Capitalized terms used but not otherwise
defined herein shall have the meanings
ascribed thereto in the Pooling and Servicing
Agreement or the Series Supplement, as
applicable.
The corpus of the Trust includes (i)
all Receivables sold, transferred, assigned,
set over and otherwise conveyed to the Trust
pursuant to Section 2.01 of the Pooling and
Servicing Agreement, (ii) all monies due or to
become due and all amount 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 Miscellaneous Payments, (iii)
all monies on deposit in, and Eligible
Investments credited to, the Collection
Account or any Series Account and (iv) all
monies as are from time to time available
under any Enhancements.
This Certificate is one of a series
of Investor Certificates entitled Gottschalks
Credit Card Master Trust, 7.664% Fixed Base
Credit Card Certificates, Series 1999-l (the
Fixed Base Certificates), each of which are
issued under and subject to the terms,
provisions and conditions of the Pooling and
Servicing Agreement and the Series Supplement.
By acceptance hereof, the Fixed Base
Certificateholder assents to and is bound by
the terms, provisions and conditions of the
Pooling and Servicing Agreement and Series
Supplement, as each may be amended from time
to time. Although a summary of certain
provisions of the Pooling and Servicing
Agreement and the Series Supplement is set
forth below, this Certificate does not purport
to summarize the Pooling and Servicing
Agreement and the Series Supplement and
reference is made to the Pooling and Servicing
Agreement and the Series Supplement for
information with respect to the interests,
rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties
and obligations of the Trustee. A copy of the
Pooling and Servicing Agreement and the Series
Supplement (without schedules) may be
requested from the Trustee by writing to the
Trustee at Bankers Trust Company, Four Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust & Agency Group, Structured
Finance Team.
The Depositor has structured the
Pooling and Servicing Agreement, the Series
Supplement and the Investor Certificates with
the intention that the Investor Certificates
will qualify under applicable federal, state,
local and foreign tax law as indebtedness of
the Depositor. The Depositor, the Servicer
and each Holder of Investor Certificates agree
to treat and to take no action inconsistent
with the treatment of the Investor
Certificates (or beneficial interest therein)
as indebtedness of the Depositor for purposes
of federal, state, local and foreign income or
franchise taxes and any other tax imposed on
or measured by income. Each Holder of
Investor Certificates, by acceptance of its
Certificate, agrees to be bound by the
provisions of Section 3.07 of the Pooling and
Servicing Agreement.
Interest shall accrue on the Fixed
Base Certificate Balance represented by this
Certificate from its date of issuance to and
including the last day of the first Interest
Period and, with respect to each Interest
Period thereafter, at the rate of 7.664% per
annum or, upon a downgrade, modification or
withdrawal of the Rating Agency's rating of
the Fixed Base Certificates, 8.414% per annum.
Interest shall be payable on each Distribution
Date only to the extent that Investor Finance
Charge Collections for the Related Collection
Period are sufficient to pay such interest
after paying all Monthly Senior Servicing Fees
then outstanding. Interest that is due but
not paid on any Distribution Date shall be
payable on the next Distribution Date and
interest shall, to the extent permitted by
applicable law, accrue on such unpaid amount
until paid at the rate of 7.664 per annum.
Principal shall be payable in
respect of this Certificate commencing on the
Distribution Date relating to the Collection
Period during which the Controlled
Amortization Period commences or an Early
Amortization Event occurs, if earlier. During
the Controlled Amortization Period, principal
shall be payable, as and to the extent
provided in Article IV of the Series
Supplement, on each Distribution Date
(commencing on the Distribution Date in
September 2003) in the amount of the
Controlled Amortization Amount and any
unreimbursed FBC Investor Charge-Offs. During
an Early Amortization Period, principal shall
be payable, as and to the extent provided in
Article IV of the Series Supplement, on each
Distribution Date in the amount of the Fixed
Base Certificate Balance.
In general, payments of principal
with respect to the Fixed Base Certificates
are limited to the unpaid Fixed Base Invested
Amount, which may be less than the unpaid
principal balance of the Fixed Base
Certificates pursuant to the terms of the
Pooling and Servicing Agreement and the Series
Supplement. The Expected Final Distribution
Date with respect to Fixed Base Certificates
is the August 2004 Distribution Date, but
principal with respect to the Fixed Base
Certificates may be paid earlier or later
under certain limited circumstances described
in the Pooling and Servicing Agreement and the
Series Supplement. If the principal of the
Fixed Base Certificates has not been paid in
full prior to the August 2006 Distribution
Date, as set forth more fully in the Series
Supplement, the Trustee will use its best
efforts to sell or cause to be sold on such
Series Termination Date Receivables (or
interests therein) in an amount equal to the
interest in the Pool Balance represented by
the Certificates, subject to certain
limitations, and shall immediately deposit the
Termination Proceeds allocable to the Series
1999-1 Certificateholders' Interest in the
Collection Account. The Termination Proceeds
shall be allocated and distributed to the
Fixed Base Certificateholders and the Holder
of the Exchangeable Certificate in accordance
with the Pooling and Servicing Agreement and
the Series Supplement.
The Fixed Base Certificates are
issuable only in minimum denominations of
$l,000,000 and integral multiples of $100,000
in excess thereof. The transfer of this
Certificate shall be registered in the
Certificate Register upon surrender of this
Certificate for registration of transfer at
any office or agency maintained by the
Transfer Agent and Registrar accompanied by a
written instrument of transfer, in a form
satisfactory to the Trustee or the Transfer
Agent and Registrar, duly executed by the
Fixed Base Certificateholder or such Fixed
Base Certificateholder's attorney-in-fact, and
duly authorized in writing with such signature
guaranteed, and thereupon one or more new
Fixed Base Certificates in authorized
denominations of like aggregate amount will be
issued to the designated transferee or
transferees.
The Pooling and Servicing Agreement
and the Series Supplement may be amended from
time to time, in certain circumstances, by the
Servicer, the Depositor, the Trustee and (if
the Seller is not the Servicer) the Seller
without the consent of any of the
Certificateholders. The Pooling and Servicing
Agreement and the Series Supplement may also
be amended from time to time as specified by
the Pooling and Servicing Agreement by the
Servicer, the Depositor and the Trustee, upon
satisfaction of the Rating Agency Condition
with the consent of (i) the Holder of the
Exchangeable Certificate, if it would be
adversely affected by such amendment, and (ii)
the Holders of Investor Certificates
evidencing more than 50% of the aggregate
unpaid principal amount of the Investor
Certificates of all adversely affected Series,
for the purpose of adding any provisions to or
changing in any manner or eliminating or
waiving any of the provisions of the Pooling
and Servicing Agreement or any Supplement or
of modifying in any manner the rights of the
Certificateholders. Any such amendment and
any such consent by the Holder of this
Certificate shall be conclusive and binding on
such Holder and upon all future Holders of
this Certificate and of any Certificate issued
in exchange hereof or in lieu hereof whether
or not notation thereof is made upon this
Certificate.
Other then with respect to the
Initial Holder, this Certificate may not be
acquired or held by or for the account of any
employee benefit plan or individual retirement
account subject to Title I of ERISA or Section
4975 of the Internal Revenue Code, or any
trust established under any such employee
benefit plan or individual retirement account
(or established to hold the assets thereof),
or any governmental plan (as defined in
section 3(32) of ERISA or Section 414(d) of
the Code) or subject to any law or regulation
similar to those contained in Section 406 of
ERISA or Section 4975 of the Internal Revenue
Code (each such employee benefit plan,
individual retirement account and trust, an
ERISA Plan). No part of the funds used by
any Person to acquire or hold this Certificate
may constitute assets (within the meaning of
ERISA and any applicable rules and
regulations) of an ERISA Plan.
THIS CERTIFICATE SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Depositor
has caused this Certificate to be duly
executed.
GOTTSCHALKS CREDIT RECEIVABLES CORPORATION, as
Depositor
By: \s\ Xxxxxxx Xxxxx
Title: President
CERTIFICATE OF AUTHENTICATION
This is one of the Gottschalks
Credit Card Master Trust % Fixed Base
Credit Card Certificates, Series 1999-1
referred to in the Series Supplement.
BANKERS TRUST COMPANY, not in its individual
capacity, but solely in its capacity as
Trustee
By: \s\ Xxxxxxx Xxxxxx
Title: Vice President
Dated:
EXHIBIT A-2
FORM OF SUBORDINATED CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED AFTER
INITIAL PURCHASE.
THIS CERTIFICATE MAY NOT BE ACQUIRED OR HELD
BY OR FOR THE ACCOUNT OF AN ERISA PLAN (AS
DEFINED BELOW)
THE GOTTSCHALKS CREDIT CARD MASTER
TRUST HAS NOT BEEN REGISTERED UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM. THE
TRANSFER, ASSIGNMENT, EXCHANGE, PLEDGE OR
OTHER CONVEYANCE OF THIS CERTIFICATE IS NOT
PERMITTED EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT AND 1999-1 SERIES
SUPPLEMENT TO THE POOLING AND SERVICING
AGREEMENT UNDER WHICH THIS CERTIFICATE IS
ISSUED (COPIES OF WHICH ARE AVAILABLE FROM THE
TRUSTEE UPON REQUEST). ANY TRANSFEREE OF THIS
CERTIFICATE IS DEEMED AS OF THE DATE OF SUCH
TRANSFER TO MAKE CERTAIN REPRESENTATIONS
RELATING TO ERISA AND OTHER MATTERS.
GOTTSCHALKS CREDIT CARD MASTER TRUST
SUBORDINATED CERTIFICATE
SERIES 1999-1
This certifies that GOTTSCHALKS
CREDIT RECEIVABLES CORPORATION (the
Subordinated Certificateholder) is the
registered owner of a fractional undivided
interest not allocated to the Investors'
Interest or the Exchangeable Interest in
certain assets of a trust (the Trust)
created pursuant to the Pooling and Servicing
Agreement, dated as of March 1, 1999, among
Gottschalks Credit Receivables Corporation, as
depositor (the Depositor), Gottschalks Inc.,
as servicer (the Servicer), and Bankers
Trust Company, as trustee (the Trustee) (the
Pooling and Servicing Agreement), as
supplemented by the Series 1999-1 Supplement
dated as of March 1, 1999, among the
Depositor, the Servicer and the Trustee, (the
Series Supplement). Capitalized terms used
but not otherwise defined herein shall have
the meanings ascribed thereto in the Pooling
and Servicing Agreement or the Series
Supplement, as applicable.
The corpus of the Trust includes (i)
all Receivables sold, transferred, assigned,
set over and otherwise conveyed to the Trust
pursuant to Section 2.01 of the Pooling and
Servicing Agreement, (ii) all monies due or to
become due and all amount received with
respect thereto and all proceeds thereof
(including proceeds, as defined in Section
9-306 of the UCC as in effect in the State of
California), and Miscellaneous Payments, (iii)
all monies on deposit in, and Eligible
Investments credited to, the Collection
Account or any Series Account and (iv) all
monies as are from time to time available
under any Enhancements.
This Certificate is issued under and
subject to the terms, provisions and
conditions of the Pooling and Servicing
Agreement and the Series Supplement. By
acceptance hereof, the Subordinated
Certificateholder assents to and is bound by
the terms, provisions and conditions of the
Pooling and Servicing Agreement and the Series
Supplement, as each may be amended,
supplemented or otherwise modified from time
to time. This Certificate does not purport to
summarize the Pooling and Servicing Agreement
or the Series Supplement and reference is made
to the Pooling and Servicing Agreement and the
Series Supplement for information with respect
to the interests, rights, benefits,
obligations, proceeds and duties evidenced
hereby and the rights, duties and obligations
of the Trustee. A copy of the Pooling and
Servicing Agreement and the Series Supplement
(without schedules) may be requested from the
Trustee by writing to the Trustee at Bankers
Trust Company, Four Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Trust &
Agency Group, Structured Finance Team.
The Pooling and Servicing Agreement
and the Series Supplement may be amended from
time to time, in certain circumstances, by the
Servicer, the Depositor, the Trustee and (if
the Seller is not the Servicer) the Seller
without the consent of any of the
Certificateholders. The Pooling and Servicing
Agreement and the Series Supplement may also
be amended from time to time as specified in
the Pooling and Servicing Agreement by the
Servicer, the Depositor and the Trustee, upon
satisfaction of the Rating Agency Condition,
with the consent of (i) the Holder of the
Exchangeable Certificate, if it would be
adversely affected by such amendment, and (ii)
the Holders of Investor Certificates
evidencing more than 50% of the aggregate
unpaid principal amount of the Investor
Certificates of all adversely affected Series,
for the purpose of adding any provisions to or
changing in any manner or eliminating or
waiving any of the provisions of the Pooling
and Servicing Agreement or any Supplement or
of modifying in any manner the rights of the
Certificateholders. Any such amendment and
any such consent by the Holder of this
Certificate shall be conclusive and binding on
such Holder and upon all future Holders of
this Certificate and of any Certificate issued
in exchange hereof or in lieu hereof whether
or not notation thereof is made upon this
Certificate.
THIS CERTIFICATE MAY NOT BE
TRANSFERRED AFTER INITIAL PURCHASE.
This Certificate may not be acquired
or held by or for the account of any employee
benefit plan or individual retirement account
subject to Title I of ERISA or Section 4975 of
the Internal Revenue Code, or any trust
established under any such employee benefit
plan or individual retirement account (or
established to hold the assets thereof), or
any governmental plan (as defined in section
3(32) of ERISA or Section 414(d) of the Code)
or subject to any law or regulation similar to
those contained in Section 406 of ERISA or
Section 4975 of the Internal Revenue Code
(each such employee benefit plan, individual
retirement account and trust, an ERISA
Plan). No part of the funds used by any
Person to acquire or hold this Certificate may
constitute assets (within the meaning of ERISA
and any applicable rules and regulations) of
an ERISA Plan.
THIS CERTIFICATE SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Depositor
has caused this Certificate to be duly
executed.
GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION, as Depositor
By: \s\ Xxxxxxx Xxxxx
Title: President
CERTIFICATE OF AUTHENTICATION
This is one of the Gottschalks
Credit Card Master Trust Subordinated
Certificates, Series 1999-1 referred to in the
Series Supplement.
BANKERS TRUST COMPANY, not in its individual
capacity, but solely in its capacity as
Trustee
By: \s\ Xxxxxxx Xxxxxx
Title: Vice President
Dated:
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
GOTTSCHALKS CREDIT CARD MASTER TRUST
(SERIES 1999-1)
Reference is made to that certain
Pooling and Servicing Agreement, dated as of
March 1, 1999, among the Depositor, the
Servicer and the Trustee (the Pooling and
Servicing Agreement), as supplemented by the
Series 1999-1 Supplement dated as of March 1,
1999 (the Series Supplement), among
Gottschalks Credit Receivables Corporation, as
depositor (the Depositor), Gottschalks Inc.,
as servicer (the Servicer), and Bankers
Trust Company, as trustee (the Trustee).
Capitalized terms used but not otherwise
defined herein shall have the meanings
ascribed thereto in the Pooling and Servicing
Agreement or the Series Supplement, as
applicable.
Under the Pooling and Servicing
Agreement, the Servicer is required to prepare
certain information for each Distribution Date
regarding current distributions to the Holders
of the Fixed Base Certificates (the Investor
Certificateholders) and the performance of
the Gottschalks Credit Card Master Trust (the
Trust) during the Related Collection Period.
The information which is required to be
prepared with respect to the ,
____ Distribution Date and with respect to the
performance of the Trust during the Related
Collection Period for such Distribution Date
is set forth below. Certain of the
information is presented on the basis of an
original principal amount of $1,000 per
Certificate. Certain other information is
presented based on the aggregate amounts for
the Trust as a whole.
(A) Information Regarding the Current Monthly
Distribution for the Fixed Base
Certificates (stated on the basis of
$1,000 original principal amount).
(1) The total amount of the $
distribution to Series 1999-1
Fixed Base Certificateholders on
the current Distribution Date,
per $1,000 original principal
amount:
(2) The total amount of the $
distribution to Series 1999-1
Fixed Base Certificateholders in
respect of interest on the
current Distribution Date, per
$1,000 original principal amount:
(3) The total amount of the $
distribution to Series 1999-1
Fixed Base Certificateholders in
respect of principal on the
current Distribution Date, per
$1,000 original principal amount:
(4) The total amount of the $
distribution to Series 1999-1
Fixed Base Certificateholders in
respect of any Make Whole Premium
on the current Distribution Date,
per $1,000 original principal
amount:
(5) Investor Charge-Offs allocated in $
reduction of the Fixed Base
Invested Amount for the current
Collection Period:
(6) Fixed Base Certificate Balance $
before the foregoing
distributions and allocations:
(7) Fixed Base Certificate Balance $
after the foregoing distributions
an allocations:
(8) Investor Charge-Offs allocated in $
reduction of the Subordinated
Invested Amount for the current
Collection Period:
(9) Subordinated Invested Amount $
after the foregoing distributions
and allocations:
((B) Information Regarding Interest, Carryover
Interest, Unpaid Principal and Make Whole
Premium for the Fixed Base Certificates.
(1) FBC Interest Rate for the related ______%
Interest Period (generally 7.664%
per annum, but 8.414 if the
rating of the Fixed Base
Certificates is downgraded,
modified or withdrawn):
(2) Amount of interest accrued during $
the related Collection Period on
the Fixed Base Certificate
Balance:
(3) Amount of interest (including any $
FBC Carryover Interest) due on
the current Distribution Date
with respect to the Fixed Base
Certificates:
(4) Amount of interest distributed on $
the current Distribution Date to
the Holders of the Fixed Base
Certificates:
(a) Portion thereof$
funded from Investor Finance Charge Collections:
(b) Portion thereof$
funded from Spread Account:
(c) Portion thereof$
funded from Investor Principal Collections allocated to
the Subordinated Certificate
(d) Portion thereof$
funded from Retained Amount Account:
(5) Amount, if any, of FBC Carryover $
Interest that will be due on the
next Distribution Date:
(6) Amount of principal due on the $
current Distribution Date with
respect to the Fixed Base
Certificates (i.e., zero,
Controlled Amortization Amount or
Outstanding Fixed Base
Certificate Balance):
(7) Amount of principal distributed $
on the current Distribution Date
with respect to the Fixed Base
Certificates
(8) Amount of previously unpaid $
principal to be distributed on
the current Distribution Date to
the Holders of the Fixed Base
Certificates
(9) Amount of Make Whole Premium $
(including accrued interest
thereon, if any) due on the
current Distribution Date with
respect to the Fixed Base
Certificates
(10) Amount of Make Whole Premium $
(including accrued interest
thereon, if any) to be
distributed on the current
Distribution Date to the Holders
of the Fixed Base Certificates
(11) Amount, if any, of unpaid Make $
Whole Premium (including accrued
interest thereon, if any) for the
current Interest Period with
respect to the Fixed Base
Certificates
(C) Principal Receivables in the Trust and
Allocation Percentages
(1) The aggregate amount of Eligible $
Principal Receivables in the
Trust (which is net of the
Discount Portion thereof) as of
the first day of the Related
Collection Period:
(2) The aggregate amount of Eligible $
Principal Receivables in the
Trust (which is net of the
Discount Portion thereof) as of
the last day of the Related
Collection Period:
(3) The aggregate amount of Eligible $
Principal Receivables in the
Trust (which is net of the
Discount Portion thereof)
represented by the Invested
Amounts of the Certificates of
all outstanding Series as of the
first day of the related
Collection Period (i.e., the sum
of the amounts derived by
multiplying item C(1) by the
product of the Series Allocation
Percentage and by the Floating
Allocation Percentage (if such
Collection period commenced
during the Revolving Period) or
the Fixed/Floating Allocation
Percentage (if such Collection
Period commenced after the
termination of the Revolving
Period) for each outstanding
Series):
(4) Fixed Base Invested Amount for $
Series 1999-1 as of the first day
of the related Collection Period:
(5) Subordinated Invested Amount for $
Series 1999-1 as of the first day
of the related Collection Period:
(6) The Required Series Pool Balance $
for Series 1999-1 as of the first
day of the related Collection
Period (i.e., the sum of C(4) and
C(5)):
(7) Series Allocation Percentage for ________%
Series 1999-1 (i.e., item C(6)
divided by the sum of item C(6)
plus the equivalent amount for
each outstanding Series):
(8) Series 1999-1 Series Pool $
Balance: The amount of Principal
Receivables in the Trust
represented by Series 1999-1
(i.e., the product of C(1) and
item C(7)):
(9) Floating Allocation Percentage ________%
for Series 1999-1 (i.e., item
C(6) divided by item C(8) each as
of the first day of the related
Collection Period):
(10) Fixed/Floating Allocation ________%
Percentage for Series 1999-1
(i.e., item C(6) divided by item
C(8), each as of the first day of
the last Collection Period to
commence during the Revolving
Period):
(11) FBC Principal Allocation _________%
Percentage (i.e., item C(4)
divided by the sum of item C(4)
and item C(5) as of the first day
of the related Collection Period
or, for any Collection Period
commencing after the termination
of the Revolving Period, item
C(4) divided by the sum of item
C(4) and item C(5), each as of
the first day of the last
Collection Period to commence
during the Revolving Period):
(12) SC Principal Allocation _________%
Percentage (i.e., item C(5)
divided by the sum of item C(4)
and item C(5) as of the first day
of the related Collection Period
or, for any Collection Period
commencing after the termination
of the Revolving Period, item
C(5) divided by the sum of item
C(4) and item C(5), each as of
the first day of the last
Collection Period to commence
during the Revolving Period):
(13) Exchangeable Holder's Interest as $_______________
of the first day of the related ___
Collection Period (i.e., item
C(8) minus item C(6)):
(D) Information Regarding the Performance of
the Trust.
(1) Aggregate Collections
(a)The aggregate amount of $
payments on Receivables
processed for the Related
Collection Period:
(b)The aggregate amount of $
payments on Receivables
comprising Principal
Collections processed for
the Related Collection
Period:
(c)The aggregate amount of $
payments on Receivables
comprising Finance Charge
Collections processed for
the Related Collection
Period:
(2) Principal Collections.
(a)The aggregate amount of $
Principal Collections
processed during the Related
Collection Period allocated
to Series 1999-1 (i.e., the
product of item D(1)(b) and
item C(7)):
(b)The aggregate amount of $
Principal Collections
processed during the Related
Collection Period allocated
to Series 1999-1 Investor
Certificates (i.e., the
product of item D(2)(a) and
item C(9), if the related
Collection Period commences
during the Revolving Period,
or the product of item
D(2)(a) and item C(10) if
such Collection Period
commences after the
Revolving Period
terminates):
(c)The aggregate amount of $
Principal Collections
processed during the Related
Collection Period allocated
to the Fixed Base
Certificates (i.e., the
product of item D(2)(b) and
item C(11)):
(d)The aggregate amount of $
Principal Collections
processed during the Related
Collection Period allocated
to the Subordinated
Certificate (i.e., the
product of item D(2)(b) and
item C(13)):
(e)The aggregate amount of $
Principal Collections
processed during the Related
Collection Period allocated
to the Exchangeable
Certificate (i.e., the
product of item D(2)(a) and
[100% minus item C(9)], if
the related Collection
Period commences during the
Revolving Period, or the
product of item D(2)(a) and
[100% minus item C(10)],if
such Collection Period
commences after the
Revolving Period terminates
):
(3) Finance Charge Collections
(a)The aggregate amount of $
Finance Charge Collections
processed during the Related
Collection Period allocated
to Series 1999-1 (i.e., the
product of item D(1)(c) and
item C(7)):
(b)The aggregate amount of $
Finance Charge Collections
processed during the Related
Collection Period allocated
to Series 1999-1 Investor
Certificates (i.e., the
product of item D(3)(a) and
item C(9)):
(c)The aggregate amount of $
Finance Charge Collections
processed during the Related
Collection Period allocated
to the Fixed Base
Certificates (i.e., the
product of item D(3)(b) and
[item C(4) divided by item
C(6)]):
(d)The aggregate amount of $
Finance Charge Collections
processed during the Related
Collection Period allocated
to the Subordinated
Certificate (i.e., the
product of item D(3)(b) and
[item C(5) divided by item
C(6)]):
(e)The aggregate amount of $
Finance Charge Collections
processed during the Related
Collection Period allocated
to the Exchangeable
Certificate (i.e., the
product of item D(3)(a) and
[100% minus item C(9)]):
(4) Defaulted Receivables, Default
Amounts and Investor Charge-Offs
(a)Default Amount for the $
Related Collection Period:
(b)The portion of the Default $
Amount allocable to Series
1999-1 (i.e., the product of
item D(4)(a) and item C(7)):
(c)Investor Default Amount: The $
portion of the Default Amount
allocable to the Series 1999-
1 Investor Certificates
(i.e., the product of item
D(4)(b) and item C(9)):
(d)The portion of the Default $
Amount allocable to the
Exchangeable Certificate
(i.e., the product of item
D(4)(b) and [100% minus item
C(9)]):
(e)The portion of the Investor $
Default Amount funded from
the Investor Default Holdback
Amount for the related
Collection Period:
1. Investor Default Holdback $
Amount (i.e., the greater
of (A) the average of the
Investor Default Amount
for the preceding twelve
Collection Periods and (B)
the Servicer's expectation
as to the Investor Default
Amount for the related
Collection Period):
2. Excess of Investor Default $
Holdback Amount over
Investor Default Amount
(i.e., item D(4)(e)(1)
minus item D(4)(c)):
3. Excess of Investor Default $
Amount over Investor
Default Holdback Amount
(i.e., item D(4)(c) minus
item D(4)(e)(1)):
(f)The portion of the Investor $
Default Amount funded from
the Spread Account for the
related Collection Period:
(g)The portion of the Investor $
Default Amount funded from
reallocations of Investor
Principal Collections
allocated to the Subordinated
Certificate for the related
Collection Period:
(h)Investor Charge-Offs for the $
Subordinated Certificate:
The portion of the Investor
Default Amount allocated in
reduction of the Subordinated
Invested Amount for the
related Collection Period:
(i)The portion of the Investor $
Default Amount funded from
the Investor Component of
amounts on deposit in the
Retained Amount Account for
the related Collection
Period:
(j) Principal$
Collections allocated to Fixed Base Certificates used
to fund Investor Default Amounts allocated to Fixed
Base Certificates:
(k)Investor Charge-Offs for the $
Fixed Base Certificates: The
portion of the Investor
Default Amount allocated in
reduction of the Fixed Base
Invested Amount for the
related Collection Period:
(l)Investor Finance Charge $
Collections used to reimburse
Investor Charge-Offs
previously allocated to the
Fixed Base Certificates:
(m)Amounts withdrawn from Spread $
Account to reimburse Investor
Charge-Offs previously
allocated to the Fixed Base
Certificates:
(n) Principal$
Collections allocated to Subordinated Certificate used
to fund Investor Charge-Offs previously allocated to
Fixed Base Certificates:
(o)Amounts withdrawn from $
Retained Amount Account to
reimburse Investor Charge-
Offs previously allocated to
the Fixed Base Certificates:
(p) Principal$
Collections allocated to Fixed Base Certificates used
to fund Investor Charge-Offs previously allocated to
Fixed Base Certificates:
(q)Aggregate outstanding $
unreimbursed Investor Charge-
Offs allocated to the Fixed
Base Certificates as of this
Distribution Date:
(r)Investor Finance Charge $
Collections used to reimburse
Investor Charge-Offs
previously allocated to the
Subordinated Certificate:
(s) Principal$
Collections allocated to Subordinated Certificate used
to fund Investor Charge-Offs previously allocated to
Subordinated Certificate:
(t)Amounts withdrawn from $
Retained Amount Account to
reimburse Investor Charge-
Offs previously allocated to
the Subordinated Certificate:
(u)Aggregate outstanding $
unreimbursed Investor Charge-
Offs allocated to the
Subordinated Certificate as
of this Distribution Date:
(5) Aging of Receivables.
(a)The aging of Principal
Receivables as of the last
day of the related Collection
Period:
1. Current: $
2. 1-29 days: $
3. 30-59 days: $
4. 60-89 days: $
5. 90-119 days: $
6. 120-149 days: $
7. 150-179 days: $
8. 180+ days: $
9. Total $
(b) The aging of
Principal Receivables as of the last day of the related
Collection Period as a percentage of the aggregate
amount of Principal Receivables as of such day:
1. Current: %
2. 1-29 days: %
3. 30-59 days: %
4. 60-89 days: %
5. 90-119 days: %
6. 120-149 days: %
7. 150-179 days: %
8. 180+ days: %
9. Total 100 %
(6) Extraordinary Trustee
Fees/Servicing Transfer
(a) Amounts drawn under$_______________
$200,000 letter of credit or surety bond to cover fees___
and expenses of Trustee in performing duties following
an Early Amortization Event or costs of transfer of
servicing duties:
(b) Finance Charge$_______________
Collections applied to cover fees and expenses of___
Trustee in performing duties following an Early
Amortization Event or costs of transfer of servicing
duties (not in excess of $200,000 less amounts, if any,
drawn under item D(6)(a)):
(c) Amounts drawn or$_______________
released from the Spread Account to fund amounts___
described in D(6)(a) and not covered by item D(6)(a)
and D(6)(b):
(d) Finance Charge$_______________
Collections applied to cover premiums or reimbursements___
of amounts drawn under $200,000 letter of credit or
surety bond:
(7) Servicing Fee
(a) Aggregate Monthly$
Servicing Fee accrued during the Related Collection
Period (i.e., the product of 1/12, 3.0% per annum and
item C(6)):
(b) Aggregate Monthly$
Senior Servicing Fee accrued during the Related
Collection Period (i.e., the product of D(7)(a) and
5/6, for each Collection Period commencing prior to a
transfer of servicing duties, and simply item D(7)(a)
for each Collection Period commencing after a transfer
of servicing duties):
(c) Aggregate Monthly$
Subordinated Servicing Fee accrued during the Related
Collection Period (i.e., the product of D(7)(a) and
1/6, for each Collection Period commencing prior to a
transfer of servicing duties, and zero for each
Collection Period commencing after a transfer of
servicing duties):
(d) The aggregate amount$
of the Monthly Senior Servicing Fee paid to the
Servicer for the Related Collection Period from Finance
Charge Collections:
(e) The aggregate amount$
of the Monthly Senior Servicing Fee paid to the
Servicer for the Related Collection Period from the
Spread Account:
(f) The aggregate amount$
of the Monthly Senior Servicing Fee not paid to the
Servicer for the Related Collection Period:
(g) The aggregate amount$
of the Monthly Subordinated Servicing Fee paid to the
Servicer for the Related Collection Period from Finance
Charge Collections:
(h) The aggregate amount$
of the Monthly Subordinated Servicing Fee not paid to
the Servicer for the Related Collection Period:
(8) Other Applications of Investor
Finance Charge Collections:
(a) Deposited into$
Spread Account for the related Collection Period:
(b) Applied to fund Make$
Whole Premium:
(c) Released to$
Depositor for Purchase of Receivables:
(9) Other applications of Investor
Principal Collections
(a) Deposited into$
Retained Amount Account for the related Collection
Period:
(b) Applied to fund Make$
Whole Premium:
(c) Applied to reduce$
Subordinated Invested Amount:
(d) Released to$
Depositor for Purchase of Receivables:
(10) Aggregate Investor Finance Charge $
Collections and Investor
Principal Collections released to
Depositor for Purchase of
Receivables:
(11) Spread Account
(a) Was a Spread AccountYes/No
Trigger in effect during the related Collection Period?
(see item D(12))
(b) Was a Spread AccountYes/No
Trigger cured during the related Collection Period?
(see item D(12) for the related and 2 preceding
Collection Periods or, after the Distribution Date in
August 2002, the related and 5 preceding Collection
Periods, and no Early Amortization Event has occurred)
(if so, all amounts will be released from Spread
Account and run through the Investor Finance Charge
Collection waterfall):
(c) Spread Account$
Requirement as of the last day of the Related
Collection Period (i.e., after making all daily
calculations of (i) sum of item A(6), plus (ii) [item
B(3) minus item B(4)(a)], plus [item D(4)(c) minus item
D(4)(e)], plus [item D(4)(k) minus [item D(4)(l) plus
item D(4)(r)], minus (ii) Investor Principal
Collections on deposit on such day in the Collection
Account and available for item B(2) and B(6) in the
aggregate, and minus (iii) item D(13)(c) the Investor
Component of amounts on deposit in the Retained Amount
Account):
(d) Amount on deposit in$
the Spread Account as of the Determination Date
relating to the preceding Distribution Date:
(e) Amounts, if any,$
deposited into the Spread Account for the related
Collection Period:
(f) The aggregate amount$
on deposit in the Spread Account as of the related
Determination Date:
(g) The amount of any$_______________
Deficiency Amount for the current Collection Period__
(i.e., ) [item B(3) minus item B(4)(a)], plus [item
D(4)(c) minus item D(4)(e)], plus [item D(4)(k) minus
[item D(4)(l) plus item D(4)(r)]):.......... .......
(h) The amount, if any,$
to be withdrawn from the Spread Account to cover any
Deficiency Amount (i.e., the lesser of item D(11)(e)
and item D(11)(f)):
(i) The amount, if any,$
to be withdrawn from the Spread Account to fund
principal distributions to the Fixed Base Certificates:
(j) The amount, if any,$
to be withdrawn from the Spread Account to fund any
Make Whole Premium:
(k) The balance of the$
Spread Account after making the foregoing distributions
(12) Spread Account Triggers
(a) Have the Fixed BaseYes/No
Certificates been put on credit watch with negative
implications by the Rating Agency?
Actual Required Yes/N
% % o
(b) Average of the greater
Portfolio Yields for the three preceding months: than 14.50%
(c) Average of the less
Default Rates for the three preceding months: than 8.50%
(d) Average of the greater
Excess Spreads for the three preceding months: than 3.00%
(e) Average of the less
Delinquency Rates for the three preceding months:than 2.00%
(f) Average of the greater
Monthly Payment Rates for the three preceding months: than 22.50%
(13) Retained Amount Account.
(a) Balance of the$
Retained Amount Account on the Determination Date
relating to the preceding Distribution Date:
(b) Balance of the$
Retained Amount Account on the related Distribution
Date:
1. Gross increase $
attributable to increase
in Investor Component:
2. Gross decrease $
attributable to decrease
in Investor Component:
3. Gross increase $
attributable to increase
in Retained Exchangeable
Amount:
4. Gross decrease $
attributable to decrease
in Retained Exchangeable
Amount:
(c) Investor Component$
of amounts on Deposit in the Retained Amount Account on
the related Determination Date: Aggregate of Amounts
on deposit in the Retained Amount Account on the
related Determination Date because of deposits made
because the Required Series Pool Balance exceeded the
Series Pool balance and the Investor Component of
amounts on deposit therein on one or more days during
any preceding Collection Period less amounts thereof
withdrawn and applied for following items:
(d) Amounts withdrawn$
from the Investor Component of amounts on deposit in
the Retained Amount Account to fund any Controlled
Amortization Amount:
(e) Amounts withdrawn$
from the Investor Component of amounts on deposit in
the Retained Amount Account to fund any Investor
Default Amounts allocated to the Fixed Base
Certificates:
(f) Amounts withdrawn$
from the Investor Component of amounts on deposit in
the Retained Amount Account to fund any Investor Charge-
Offs allocated to the Fixed Base Certificates:
(g) Amounts withdrawn$
from the Investor Component of amounts on deposit in
the Retained Amount Account to fund any Make Whole
Premium (and any interest accrued thereon):
(h) Amounts withdrawn$
from the Investor Component of amounts on deposit in
the Retained Amount Account to fund any distribution of
principal to the holder of the Subordinated
Certificate:
(i) Retained$
Exchangeable Amounts on deposit in the Retained Amount
Account on the related Determination Date: Amounts
deposited therein because the Required Exchangeable
Certificate Amount exceeded the Exchangeable Holder's
Interest, plus the aggregate amount of Eligible Past
Due Receivables (item D(5)(a)(6) plus item D(5)(a)(7)),
plus the Retained Exchangeable Amount on deposit in the
Retained Amount Account on one or more days during any
preceding Collection Period less amounts thereof
withdrawn pursuant to item and applied for following
items:
1. Required Exchangeable $
Certificate Amount (product
of [the greater of item
D(13)(i)(4) or 7.00%] and
item C(6)):
2. Net amount of charge $
account refunds or return
credits given by
Gottschalks to
accountholders during the
Anniversary Month (same
calendar month as related
Collection Period, one year
previous):
3. Net sales credited to $
Gottschalks charge accounts
during such Anniversary
Month:
4. Item D(13)(i)(2) divided by _________%
item D(13)(i)(3):
(j) Amounts withdrawn$
from the Retained Exchangeable Amount on deposit in the
Retained Amount Account and released to the holder of
the Exchangeable Certificate:
(k) Amounts remaining on$
deposit in the Retained Amount Account after the
preceding applications:
(l) Investor Component$
of amounts remaining on deposit in the Retained Amount
Account after the preceding applications:
(m) Retained$
Exchangeable Amount remaining on deposit in the
Retained Amount Account after the preceding
applications:
(14) Early Amortization Events.
(a) Numerical Triggers
(Article VII of Series Supplement to Pooling and
Servicing Agreement)
1.The balance of the Investor Yes/No
Component of the Retained
Amount Account was required
to exceed $3.5 million
(i.e., item C(6) exceeded
item C(8) by more than $3.5
million) for 60 consecutive
days.
2.The Subordinated Invested Yes/No
Amount has been written
down by more than
$2,161,685 (33% of the
Subordinated Invested
Amount as of the Closing
Date) on a day when the
Fixed Base Invested Amount
was greater than zero.
3.The sum of (A) the Yes/No
Exchangeable Holder's
Interest (item C(13) if
measured on a daily basis),
(B) the aggregate principal
amount of any Eligible Past
Due Receivables (item
D(5)(a)(6) plus item
D(5)(a)(7) measured on a
daily basis), and (C) the
Retained Exchangeable
Amount (item D(13)(m)
measured on a daily basis)
was reduced below the
Required Exchangeable
Certificate Amount (item
D(13)(i)(1) measured on a
daily basis):
Actual Required Yes/N
% % o
4. Average of the greater
Portfolio Yields for than
the three preceding 12.00%
months:
5. Average of the less
Default Rates for than
the three preceding 10.00%
months:
6. Average of the greater
Excess Spreads for than
the three preceding 1.00%
months:
7. Average of the less
Delinquency Rates than
for the three 3.00%
preceding months:
8. Average of the greater
Monthly Payment than
Rates for the three 17.50%
preceding months:
(b) Non-Numerical Triggers
1. The Depositor has failed to Yes/No
make any material payments
or transfer of funds for
the benefit of
Certificateholders within
two Business Days of
receipt of notice of such
failure.
2. The Depositor has Yes/No
materially breached any
covenant under the
Agreement or any Series
Supplement or has come to
have knowledge that any of
its the representations or
warranties under the
Agreement or the Series
Supplement has been
breached.
3. The Trust is required to be Yes/No
registered as an investment
company within the meaning
of the Investment Company
Act of 1940, as amended.
4. The Depositor is required Yes/No
to be registered as an
investment company within
the meaning of the
Investment Company Act of
1940, as amended.
5. A Servicer Default has Yes/No
occurred (specify
___________________________
___________________________
___________________________
_______________.
6. The Depositor has failed to Yes/No
designate Blocked Accounts
as Supplemental Accounts on
any Determination Date on
which the Required Series
Pool Balance exceeded the
sum of the Series Pool
Balance and the Investor
Component of the amount on
deposit in the Retained
Amount Account or has
failed to transfer and
convey additional
Receivables from such
Supplemental Accounts
within five business days
of such Determination Date.
7. The Fixed Base Certificate Yes/No
Balance has not been
reduced to zero on the
August 2004 Distribution
Date or any Controlled
Amortization Amount was not
paid in full when due.
8. The Depositor and the Yes/No
Servicer are aware of the
occurrence of any events of
bankruptcy, insolvency or
receivership involving the
Depositor or Gottschalks,
the occurrence of which
would constitute an Early
Amortization Event.
9. The rating of the Fixed Yes/No
Base Certificate has been
reduced below BBB.
(E) Discount Rates
(a)The Discount Rate in effect %
for non-promotional
Receivables on the first day
of the related Collection
Period:
(b)Changes, if any, to the %
Discount Rate for non-
promotional Receivables since
the first day of the related
Collection Period:
(c)The Discount Rate in effect %
for promotional Receivables
on the first day of the
related Collection Period:
(d)Changes, if any, to the %
Discount Rate for promotional
Receivables since the first
day of the related Collection
Period:
IN WITNESS WHEREOF, the undersigned
has duly executed and delivered this
Certificate this day of ,
____.
GOTTSCHALKS INC.,
as Servicer
By: \s\ Xxx Xxxxxxxxx
Servicing Officer
EXHIBIT C
FORM OF RULE 144A TRANSFEREE CERTIFICATE
Gottschalks Credit Receivables Corporation
Bankers Trust Company
0 Xxxxx Xxxxx Xxxx as Trustee
Xxxxxx, Xxxxxxxxxx 00000 Four Xxxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Re: Gottschalks Credit Card Master
Trust;
Fixed Base Credit Card Certificates,
Series 1999-1
Ladies and Gentlemen:
__________________________ (the
Purchaser) is today purchasing in a private
resale from ___________________________ (the
Seller) $_______ aggregate principal amount
of Fixed Base Credit Card Certificates, Series
1999-1 (the Certificates), issued pursuant
to the Pooling and Servicing Agreement and the
Series 1999-1 Supplement (the Supplement)
thereto, each dated as of March 1, 1999
(collectively, the Agreement), between
Gottschalks Inc. (the Company), Gottschalks
Credit Receivables Corporation (GCRC) and
Bankers Trust Company (Bankers Trust), as
trustee (the Trustee). The Certificates are
securities issued by and evidencing interests
in the Gottschalks Credit Card Master Trust
(the Trust).
In connection with the purchase of
the Certificates, the Purchaser hereby
represents and warrants to each of you as
follows:
1. The Purchaser understands that
the Certificates have not been registered
under the Securities Act of 1933, as amended
(the 1933 Act), or the securities laws of
any state or foreign jurisdiction.
2. The Purchaser is acquiring the
Certificates for its own account (or for the
account of a qualified institutional buyer as
defined in Rule 144A under the 0000 Xxx) only
for investment and not for any other person,
and not with a view to, or for resale in
connection with, a distribution that would
constitute a violation of the 1933 Act or any
state or foreign securities laws (subject to
the understanding that disposition of the
Purchaser's property will remain at all times
within its control). The Purchaser does
hereby agree to indemnify the Trustee, its
officers, directors, agents and employees,
GCRC and the Company against any liability
that may result if the transfer is not so
exempt or is not made in accordance with the
1933 Act and such state and foreign securities
laws. The Purchaser is not an affiliate of
GCRC, the Trustee or any of their respective
affiliates.
3. The Purchaser agrees that the
Certificates must be held indefinitely by it
unless (i) the Certificates are subsequently
registered under the 1933 Act or (ii) an
exemption from the registration requirements
of the 1933 Act is available.
4. The Purchaser agrees that if at
some time it wishes to dispose of or exchange
any of the Certificates, it will not transfer
or exchange any of the Certificates unless
such transfer or exchange is in accordance
with the provisions of Article VI of the
Agreement and Article VI of the Supplement.
5. The Purchaser is a qualified
institutional buyer as defined in Rule 144A of
the 1933 Act and has completed one of the
forms of certification to that effect attached
as Annexes hereto, it is aware that the sale
to it is being made in reliance on Rule 144A,
it is acquiring the Certificates for its own
account or for the account of a qualified
institutional buyer and it understands that
such Certificates may be resold, pledged or
transferred by the Purchaser only (i) to a
person who the Purchaser reasonably believes
is a qualified institutional buyer that
purchases for its own account or for the
account of a qualified institutional buyer to
whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule
144A or (ii) pursuant to another exemption
from registration under the 1933 Act and
applicable state and foreign securities laws.
6. Neither the Purchaser nor
anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise
disposed of any Certificate, any interest in
any Certificate or any other similar security
of GCRC or the Trust to, or solicited any
offer to buy or accept a transfer, pledge or
other disposition of any Certificate, any
interest in any Certificate or any other
similar security of GCRC or the Trust with,
any person in any manner, or made any general
solicitation by means of general advertising
or in any other manner, or taken any other
action, which would constitute a distribution
of the Certificates under the 1933 Act or
which would render the disposition of any
Certificate a violation of Section 5 of the
1933 Act or any state or foreign securities
law, require registration or qualification
pursuant thereto, or require registration of
the Trust or GCRC as an investment company
under the Investment Company Act of 1940, as
amended, nor will it act, nor has it
authorized or will it authorize any person to
act, in such manner with respect to the
Certificates.
7. The Purchaser understands that
there is no market, nor is there any assurance
that a market will develop, for the
Certificates and that GCRC and the Trust have
no obligation to make or facilitate any such
market (or to otherwise repurchase the
Certificates from the Purchaser) under any
circumstances.
8. The Purchaser has consulted
with its own legal counsel, independent
accountants and financial advisors to the
extent it deems necessary regarding the tax
consequences to it of ownership of the
Certificates, is aware that its taxable income
with respect to the Certificates in any
accounting period may not correspond to the
cash flow (if any) from the Certificates for
such period, and is not purchasing the
Certificates in reliance on any
representations of GCRC or its counsel with
respect to tax matters.
9. The Purchaser has reviewed the
Private Placement Memorandum with respect to
the Certificates dated March 1, 1999 (the
Private Placement Memorandum), and has had
the opportunity to ask questions and receive
answers concerning the terms and conditions of
the transaction contemplated by the Private
Placement Memorandum and to obtain additional
information necessary to verify the accuracy
and completeness of any information furnished
to the Purchaser or to which the Purchaser had
access.
10. The Purchaser understands that
the Certificates will bear legends
substantially as set forth in the Agreement.
11. The Purchaser hereby further
agrees to be bound by all the terms and
conditions of the Certificates as provided in
the Agreement.
12. The Purchaser is not an
employee benefit plan, trust or account
subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended
(ERISA), or subject to Section 4975 of the
Internal Revenue Code of 1986, as amended (the
Code), or a governmental plan defined in
section 3(32) of ERISA or Section 414(d) of
the Code subject to any federal, state or
local law which is, to a material extent,
similar to the foregoing provisions of ERISA
or the Code (Similar Law) (each, a Benefit
Plan) and is not an entity, including an
insurance company separate account or an
insurance company general account if the
assets in any such accounts constitute plan
assets for purposes of regulation section
2510.3-101 of ERISA, whose underlying assets
include Benefit Plan assets by reason of a
Benefit Plan's investment in the entity.
13. If the Purchaser (and if the
Purchaser is acquiring the Certificates for an
account as provided in paragraph 5 above, such
account) is a partnership, grantor trust or S
corporation for federal income tax purposes (a
flow-through entity), any Certificates owned
by such flow-through entity will represent
less than 50% of the value of all the assets
owned by such flow-through entity and no
special allocation of income, gain, loss,
deduction or credit from such Certificates
will be made among the beneficial owners of
such flow-through entity.
14. If the Purchaser sells any of
the Certificates, the Purchaser will obtain
from any subsequent Purchaser the same
representations contained in this
Representation Letter.
Capitalized terms used herein that
are not otherwise defined shall have the
meanings ascribed thereto in the Agreement.
The representations and warranties
contained herein shall be binding upon the
heirs, executors, administrators and other
successors of the undersigned. If there is
more than one signatory hereto, the
obligations, representations, warranties and
agreements of the undersigned are made jointly
and severally.
Executed at ___________, this_ day
of ____.
Purchaser's Name (Print)
By \s\ Xxxxxx X. Xxxxxxx
Its Vice President
Address of Purchaser
Purchaser's Taxpayer
Identification Number
Annex 1
to Exhibit C
Qualified Institutional Buyers Status Under
Rule 144A
(Buyers other than investment companies)
Gottschalks Credit Receivables Corporation
Bankers Trust Company
0 Xxxxx Xxxxx Xxxx as Trustee
Xxxxxx, Xxxxxxxxxx 00000 Four Xxxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Re: Gottschalks Credit Card Master Trust;
Credit Card Certificates, Series
1999-1
Name of Buyer: (Buyer)
Dear Sirs:
I hereby certify that as indicated below,
I am the President, Chief Executive/Financial
Officer, Senior Vice President or other
executive officer of Buyer.
In connection with purchases by Buyer
from time to time, I hereby certify to you
and, if you act as broker for one or more
customers, to such customers, that Buyer is a
qualified institutional buyer as defined in
Rule 144A under the Securities Act of 1933, as
amended (Rule 144A), because (i) Buyer owned
and/or invested on a discretionary basis
$______ in securitiesi (except for the
excluded securities referred to below) as of
the end of Buyer's most recent fiscal year
(such amount being calculated in accordance
with Rule 144A) and (ii) Buyer satisfies the
criteria in the initialed category marked
below.
Corporation, etc. Buyer is a corporation
(other than a bank, savings and loan
association or similar institution),
Massachusetts or similar business trust,
partnership, or charitable organization
described in Section 501(c)(3)of the Internal
Revenue Code of 1986, as amended.
Bank. Buyer (a) is a national bank or
banking institution organized under the laws
of any State, territory or the District of
Columbia the business of which is
substantially confined to banking and is
supervised by the State or territorial banking
commission or similar official or is a foreign
bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached
hereto.
Savings and Loan. Buyer (a) is a savings
and loan association, building and loan
association, cooperative bank, homestead
association or similar institution, which is
supervised and examined by a State or Federal
authority having supervision over any such
institution or is a foreign savings and loan
association or equivalent institution and (b)
has an audited net worth of at least
$25,000,000 as demonstrated in its latest
annual financial statements, a copy of which
is attached hereto.
Broker-dealer. Buyer is a dealer
registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended
(the 1934 Act).
Insurance Company. Buyer is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision
by the insurance commissioner or a similar
official or agency of a State, territory or
the District of Columbia.
State or Local Plan. Buyer is a plan
established and maintained by a State, its
political subdivisions or any agency or
instrumentality of a State or its political
subdivisions, for the benefit of its
employees.
ERISA Plan. Buyer is an employee benefit
plan within the meaning of Title I of the
Employee Retirement Income Security Act of
1974, as amended.
Investment Advisor. Buyer is an
investment advisor registered under the
Investment Advisers Act of 1940, as amended.
The term securities as used herein does
not include (i) securities of issuers that are
affiliated with Buyer, (ii) securities that
are part of an unsold allotment to or
subscription by Buyer (if Buyer is a dealer),
(iii) securities issued or guaranteed by the
United States or any instrumentality thereof,
(iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi)
repurchase agreements, (vii) securities owned
subject to a repurchase agreement and (viii)
currency, interest rate and commodity swaps.
For purposes of determining the aggregate
of securities owned and/or invested on a
discretionary basis by Buyer, Buyer used the
cost of such securities to Buyer and did not
include any of the securities referred to in
the preceding paragraph.
Further, in determining such aggregate
amount, Buyer may have included securities
owned by subsidiaries of Buyer, but only if
such subsidiaries are consolidated with Buyer
in its financial statements prepared in
accordance with generally accepted accounting
principles and if the investments of such
subsidiaries are managed under Buyer's
direction. However, such securities were not
included if Buyer is a majority-owned,
consolidated subsidiary of another enterprise
and Buyer is not itself a reporting company
under the 1934 Act.
Buyer acknowledges that it is familiar
with Rule 144A and understands that you and
your customers (if you act as a broker for one
or more customers) are and will continue to
rely on the statements made herein because one
or more sales by you for your own account or
your customer's account to Buyer may be in
reliance on Rule 144A.
Will Buyer be purchasing Rule 144A
securities only for Buyer's own account?
Yes___ No___
If the answer to this question is no,
Buyer agrees that, in connection with any
purchase of securities sold to Buyer for the
account of a third party (including any
separate account) in reliance on Rule 144A,
Buyer will only purchase for the account of
one third party and such third party at the
time is a qualified institutional buyer
within the meaning of Rule 144A. In addition,
Buyer agrees that Buyer will not purchase
securities for a third party unless Buyer has
obtained a current representation letter from
such third party or taken other appropriate
steps contemplated by Rule 144A to conclude
that such third party independently meets the
definition of qualified institutional buyer
set forth in Rule 144A.
Buyer agrees to notify you of any changes
in the information and conclusions herein.
Until such notice is given to you, Buyer's
purchase of securities from you, or through
you from your customers, will constitute a
reaffirmation of the foregoing certifications
and acknowledgments as of the date of such
purchase. Further, if Buyer is a bank or
savings and loan as provided above, Buyer
agrees that it will furnish you with updated
annual financial statements promptly after
they become available.
Date: ____________________
Very truly yours,
Print Name of Buyer
By: ___________________________
Name:
Title:
Annex 2
to Exhibit C
Qualified Institutional Buyer Status Under
Rule 144A
(Buyers that are registered investment
companies)
Gottschalks Credit Receivables Corporation
Bankers Trust Company
0 Xxxxx Xxxxx Xxxx as Trustee
Xxxxxx, Xxxxxxxxxx 00000 Four Xxxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Re: Gottschalks Credit Card Master Trust;
Credit Card Certificates, Series
1999-1
Name of Buyer: _____________ (Buyer)
Name of Investment Adviser: _____________
(Adviser)
I hereby certify that, as indicated
below, I am the President, Chief
Executive/Financial Officer or Senior Vice
President of Buyer or, if Buyer is a
qualified institutional buyer as defined in
Rule 144A (Rule 144A) under the Securities
Act of 1933, as amended, because Buyer is part
of a Family of Investment Companies (as
defined below) of Adviser.
In connection with purchases by
Buyer from time to time, I hereby certify to
you and, if you act as broker for one or more
customers, to such customers, that Buyer is a
Squalified institutional buyer as defined in
Rule 144A because (i) Buyer is an investment
company registered under the Investment
Company Act of 1940, as amended, and (ii) as
marked below, Buyer alone, or Buyer's Family
of Investment Companies, owned at least
$100,000,000 in securities (other than the
excluded securities referred to below) as of
the end of Buyer's most recent fiscal year.1
Buyer owned $ in
securities (other than the excluded
securities referred to below) as of
the end of Buyer's most recent
fiscal year (such amount being
calculated in accordance with Rule
144A).
Buyer is part of a Family of
Investment Companies which owned in
the aggregate $ in securities (other
than the excluded securities
referred to below) as of the end of
Buyer's most recent fiscal year
(such amount being calculated in
accordance with Rule 144A).
For purposes of determining the
amount of securities owned by Buyer or Buyer's
Family of Investment Companies, I used the
cost of such securities and did not include
any of the securities referred to below in the
second succeeding paragraph.
The term Family of Investment
Companies as used herein will mean two or
more registered investment companies (or
series thereof) that have the same investment
adviser or investment advisers that are
affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one
investment adviser is a majority owned
subsidiary of the other).
The term securities as used herein
does not include (i) securities of issuers
that are affiliated with Buyer or are part of
Buyer's Family of Investment Companies, (ii)
securities issued or guaranteed by the United
States, or any instrumentality thereof, (iii)
bank deposit notes and certificates of
deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned
but subject to a repurchase agreement and
(vii) currency, interest rate and commodity
swaps.
On behalf of Buyer, I acknowledge
that Buyer is familiar with Rule 144A and
understands that you and your customers (if
you act as a broker for one or more customers)
are and will continue to rely on the
statements made herein because one or more
sales to Buyer by you for your own account or
your customer's account will be in reliance on
Rule 144A. In addition, on behalf of Buyer, I
agree that, in connection with any purchase of
securities sold by or through you in reliance
on Rule 144A, Buyer will only purchase for
Buyer's own account.
Finally, on behalf of Buyer or
Adviser (as appropriate), I also agree to
notify you of any changes in the information
and conclusions herein. Until such notice is
given to you, Buyer's purchase from time to
time of securities from you, or through you
from your customers, will constitute a
reaffirmation of the foregoing certifications
and acknowledgments by me as of the date of
such purchase.
Date: _____________________
Very truly yours,
Name:
Title:
On behalf of:
Name of Buyer:
or
Name of Adviser:
EXHIBIT D
FORM OF NON-RULE 144A REPRESENTATION LETTER
Gottschalks Credit Receivables Corporation
Bankers Trust Company
0 Xxxxx Xxxxx Xxxx as Trustee
Xxxxxx, Xxxxxxxxxx 00000 Four Xxxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Re: Gottschalks Credit Card Master Trust;
Fixed Base Credit Card Certificates,
Series 1999-1
Ladies and Gentlemen:
The undersigned purchaser (the
Purchaser) understands that the purchase of
the above-referenced certificates (the
Certificates) may be made by institutions
which are Accredited Investors under Rule
501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended (the 1933
Act). The undersigned represents on behalf of
the Purchaser that the Purchaser is an
Accredited Investor within the meaning of
such definition. The Purchaser is urged to
review carefully the responses,
representations and warranties it is making
herein.
Representations and Warranties
The Purchaser makes the following
representations and warranties in order to
permit Bankers Trust Company, as trustee (the
Trustee) of the Gottschalks Credit Card
Master Trust (the Trust), Gottschalks Inc.
(Gottschalks) and Gottschalks Credit
Receivables Corporation (GCRC) to determine
its suitability as a purchaser of Certificates
and to determine that the private transfer
exemption from registration relied upon by
GCRC under the 1933 Act is available to it.
1. The Purchaser understands that
the Certificates have not been, and throughout
their term will not be, registered or
qualified under the 1933 Act or the securities
laws of any state and may be resold (which
resale is not currently contemplated) only if
registered pursuant to the provisions of the
1933 Act or if an exemption from registration
under the 1933 Act and other applicable state
securities laws is available, that neither
GCRC nor the Trustee is required to register
the Certificates under the 1933 Act or any
applicable state securities laws and that any
transfer must comply with Article VI of the
Pooling and Servicing Agreement between
Gottschalks, GCRC and the Trustee and Article
VI of the Series 1999-1 Supplement (the
Supplement) thereto, each dated as of March
1, 1999 (collectively, the Agreement). The
Purchaser does hereby agree to indemnify the
Trustee, its officers, directors, agents and
employees, GCRC and the Company against any
liability that may result if the purchase of
the Certificates is not so exempt or is not
made in accordance with the 1933 Act and such
state securities laws.
2. The Purchaser will comply with
all applicable federal and state securities
laws in connection with any subsequent resale
of the Certificates.
3. The Purchaser is an accredited
investor within the meaning of Rule
501(a)(1), (2), (3) or (7) under the 1933 Act
and a sophisticated institutional investor and
has knowledge and experience in financial and
business matters (and, in particular, in such
matters related to securities similar to the
Certificates) and is capable of evaluating the
merits and risk of its investment in the
Certificates and is able to bear the economic
risks of such investment. The Purchaser has
been given such information concerning the
Certificates, Gottschalks and GCRC as it has
requested.
4. The Purchaser is acquiring the
Certificates as principal for its own account
for the purpose of investment and not with a
view to or for sale in connection with any
distribution thereof, subject nevertheless to
any requirement of law that the disposition of
the Purchaser's property shall at all times be
and remain within its control.
5. Neither the Purchaser nor
anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise
disposed of any Certificate, any interest in
any Certificate or any other similar security
of GCRC to, or solicited any offer to buy or
accept a transfer, pledge or other disposition
of any Certificate, any interest in any
Certificate or any other similar security of
GCRC with, any person in any manner, or made
any general solicitation by means of general
advertising or in any other manner, or taken
any other action, which would constitute a
distribution of the Certificates under the
1933 Act or which would render the disposition
of any Certificate a violation of Section 5 of
the 1933 Act or any state securities law,
require registration or qualification pursuant
thereto, or require registration of the Trust
under the Investment Company Act of 1940, as
amended, nor will it act, nor has it
authorized or will it authorize any person to
act in such manner with respect to the
Certificates.
6. The Purchaser has reviewed the
Private Placement Memorandum with respect to
the Certificates dated March 1, 1999 (the
Private Placement Memorandum), and has had
the opportunity to ask questions and receive
answers concerning the terms and conditions of
the transaction contemplated by the Private
Placement Memorandum and to obtain additional
information necessary to verify the accuracy
and completeness of any information furnished
to the Purchaser or to which the Purchaser had
access.
7. The Purchaser is not an
employee benefit plan, trust or account
subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended
(ERISA), or subject to Section 4975 of the
Internal Revenue Code of 1986, as amended (the
Code), or a governmental plan defined in
section 3 (32) of ERISA or Section 414(d) of
the Code subject to any federal, state or
local law which is, to a material extent,
similar to the foregoing provisions of ERISA
or the Code (Similar Law) (each, a Benefit
Plan) and is not an entity, including an
insurance company separate account or an
insurance company general account if the
assets in any such accounts constitute plan
assets for purposes of regulation section
2510.3-101 of ERISA, whose underlying assets
include Benefit Plan assets by reason of a
Benefit Plan's investment in the entity.
8. The Purchaser understands that
the Certificates will bear a legend
substantially as set forth in the form of
Certificate included as an Exhibit to the
Supplement.
9. The Purchaser understands that
there is no market, nor is there any assurance
that a market will develop, for the
Certificates and that GCRC does not have any
obligation to make or facilitate any such
market (or to otherwise repurchase the
Certificates from the Purchaser) under any
circumstances.
10. The Purchaser has consulted
with its own legal counsel, independent
accountants and financial advisors to the
extent it deems necessary regarding the tax
consequences to it of ownership of the
Certificates, is aware that its taxable income
with respect to the Certificates in any
accounting period may not correspond to the
cash flow (if any) from the Certificates for
such period, and is not purchasing the
Certificates in reliance on any
representations of GCRC or its counsel respect
to tax matters.
11. The Purchaser represents, on
behalf of itself that if the Purchaser is a
partnership, grantor trusts or S corporation
for federal income tax purposes (a Flow-
Through Entity), any Certificates owned by or
on behalf of such Flow-Through Entity will
represent less than 50% of the value of all
the assets owned by such Flow-Through Entity
and no special allocation of income, gain,
loss, deduction or credit from such Fixed Base
Certificates will be made among the beneficial
owners of such Flow-Through Entity.
12. The Purchaser agrees that it
will obtain from any subsequent purchaser of
the Certificates substantially the same
representations, warranties and agreements
contained in the foregoing paragraphs 1
through 11 and in this paragraph 12.
Capitalized terms used herein that
are not otherwise defined shall have the
meanings ascribed thereto in the Agreement or
the Private Placement Memorandum, as the case
may be.
The representations and warranties
continued herein shall be binding upon the
successors of the undersigned.
Executed at _________, this___ day
of ________, ___.
Purchaser's Name (Print)
By: \s\ Xxxxxx X. Xxxxxxx
Title: Vice President
Address of Purchaser
Purchaser's Taxpayer
Identification Number
SCHEDULE I
List of Series Accounts
Bankers Trust Company
ABA #000000000
ACCT:
REF: Gottschalks 19991-1
Attn:
Gottschalks Credit Card Master Trust Series
1999-1 Capitalized Interest Account : _____
Gottschalks Credit Card Master Trust Series
1999-1 Retained Amount Account: _____
Gottschalks Credit Card Master Trust Series
1999-1 Spread Account: _______
_______________________________
1 Buyer must own and/or invest on a
discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in
that case, Buyer must own and/or invest on a
discretionary basis at least $10,000,000 in
securities.
