GOTTSCHALKS CREDIT RECEIVABLES CORPORATION
Depositor
GOTTSCHALKS INC.
Servicer
and
BANKERS TRUST COMPANY
Trustee
_________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1999
_________________________________________
GOTTSCHALKS CREDIT CARD MASTER TRUST
POOLING AND SERVICING AGREEMENT dated as
of March 1, 1999, 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,
as Trustee.
In consideration of the mutual agreements
herein contained, each party agrees as follows
for the benefit of the other parties and the
Beneficiaries to the extent
provided herein:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Whenever used in
this Agreement, the following words and
phrases shall have the following meanings:
"Account" shall mean (i) each Charge
Account existing on the Cut-Off Date (ii) each
Charge Account originated by the Seller in the
normal operation of its credit card business
after the Cut-Off Date and (iii) any Charge
Account acquired by, or originated at any
store acquired by, the Seller after the Cut-
Off Date from a third party that the Seller,
upon satisfaction of the Rating Agency
Condition, chooses to include as a Charge
Account for purposes of this Agreement;
provided, however, that a Charge Account
originated by the Seller during the
continuance of a Block Period shall not
constitute an Account hereunder until and
unless the Charge Account subsequently
constitutes a Supplemental Account; provided
further, that any Charge Account that
constitutes a Removed Account shall not
constitute an Account hereunder from and after
its Removal Date.
"Account Information" shall have the
meaning specified in Section 2.02(c).
"Adjusted Invested Amount" shall
mean, as of any date, an amount equal to the
Required Series Pool Balance.
"Adjusted Net Worth" shall have the
meaning set forth in that certain Loan and
Security Agreement between the Servicer (or
the successor thereto) and Congress Financial
Corporation (or the successor thereto), dated
December 20, 1996, as amended, or any
replacement line of credit obtained by the
Servicer (or the successor thereto).
"Adjustment Payment" shall have the
meaning specified in Section 3.09(a) hereof.
"Affiliate" shall mean, with respect
to any specified Person, any other Person
controlling or controlled by or under common
control with such specified Person. For the
purposes of this definition, "control" when
used with respect to any specified Person
means the power to direct the management and
policies of such Person, directly or
indirectly, whether through the ownership of
voting securities, by contract or otherwise;
and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling
and Servicing Agreement, as the same may from
time to time be amended, modified or otherwise
supplemented, including with respect to any
Series or Class, by the related Supplement.
"Allocation Day" with respect to any
Series shall have the meaning specified in the
related Series Supplement.
"Applicants" shall have the meaning
specified in Section 6.07 hereof.
"Appointment Date" shall have the
meaning specified in Section 9.02 hereof.
"Authorized Newspaper" shall mean
any newspaper or newspapers of general
circulation in Fresno County, California and
in New York, New York customarily published on
each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Beneficiary" shall mean any of the
Certificateholders and any Enhancement
Provider.
"Blocked Account" means a Charge
Account originated by the Seller during the
continuance of a Block Period.
"Block Period" shall have the
meaning specified in Section 2.08(a) hereof.
"Bondable Persons" shall mean those
officers and employees of the Servicer
directly responsible for handling funds,
documents and computer systems directly
relating to any of the servicing functions
delegated to the Servicer hereunder and
performed by the Servicer at its headquarters
in Fresno, California.
"Business Day" shall mean any day
other than (a) a Saturday or a Sunday, or (b)
another day on which banking institutions or
trust companies in the States of New York or
California are authorized or obligated by law,
executive order or governmental decree to be
closed.
"Certificate" shall mean any
Certificate issued pursuant to a Series
Supplement or the Exchangeable Certificate.
"Certificate Rate" shall mean, with
respect to any Series or Class, the
certificate rate specified therefor in the
related Supplement.
"Certificate Register" shall have
the meaning specified in Section 6.04(a)
hereof.
"Certificateholder" or "Holder"
shall mean (x) a holder of any Investor
Certificate or (y) a Person (other than GCRC
or any Affiliate thereof) in whose name a
Subordinated Certificate is registered or (z)
a Person (other than GCRC or any Affiliate
thereof) in whose name the Exchangeable
Certificate is registered or, upon the pledge
of the Exchangeable Certificate by GCRC or any
Affiliate thereof, the pledgee of the
Exchangeable Certificate. The purpose of the
exclusion of GCRC or any Affiliate thereof
from this definition is to prevent such
entities from exercising the rights, whether
voting or otherwise, of a Certificateholder
hereunder.
"Certificateholders Representative"
shall mean, unless otherwise provided in a
Supplement, a representative appointed by
Consent of Certificateholders.
"Charge Account" shall mean a
consumer revolving credit card account (i)
originated by the Seller pursuant to a Charge
Account Agreement (ii) originated by the
Xxxxxx Stores and purchased by the Seller
prior to the Cut-Off Date and (iii) any Charge
Account acquired by, or originated at any
store acquired by, the Seller after the Cut-
Off Date from a third party that the Seller,
upon satisfaction of the Rating Agency
Condition, chooses to include as a Charge
Account for purposes of this Agreement.
"Charge Account Agreement" shall
mean an agreement with the Seller or, with
respect to Charge Accounts acquired by the
Seller after the Cut-Off Date, an agreement as
to which the Seller is an assignee or is
otherwise an obligee, pursuant to which a
Person is obligated to pay for purchased
merchandise or services under a credit plan
that permits such Person to purchase
merchandise and services on credit, together
with any finance charges and other charges
related thereto, as such agreement may be
amended, modified or supplemented from time
to time.
"Class" shall mean, with respect to
any Series, any one of the classes of
Certificates of that Series.
"Closing Date" shall mean, with
respect to any Series, the Closing Date
specified in the related Supplement.
"Collection Account" shall have the
meaning specified in Section 4.02 hereof.
"Collection Period" shall mean, with
respect to each Distribution Date, the
preceding calendar month.
"Collection Servicer" shall mean an
institution (other than the Servicer)
reasonably acceptable to the Trustee and
Certificateholders, as evidenced by a Consent
of Certificateholders, which shall have been
appointed to perform the functions specified
in Section 3.03(x)(D) hereof; provided,
however, that Union Bank of California and
Bank of America are hereby preapproved to
serve as Collection Servicers hereunder.
"Collection Servicer Agreement"
shall have the meaning specified in Section
3.03(x)(D) hereof.
"Collections" shall mean, without
duplication, all payments by or on behalf of
Obligors received by the Servicer in respect
of the Receivables, in the form of cash,
checks, wire transfers or any other form of
payment as provided in such Obligor's Charge
Account Agreement.
"Commitment Fee" shall mean, as of
any date of determination and for any Investor
Certificate of any Series, the per annum rate
of any commitment or similar fee payable with
respect to any such Certificate as of such
date from Finance Charge Collections that are
allocable to such Certificate.
"Consent of Certificateholders"
shall mean, with respect to any proposed
action or inaction, the written consent of
Certificateholders representing not less than
a majority of the Adjusted Invested Amount of
each Series of Investor Certificates then
outstanding, or if a Series shall have more
than one Class, of each Class within any said
Series.
"Contractually Delinquent" with
respect to an Account, shall mean an Account
as to which the required minimum payment set
forth on the related billing statement has not
been received by the due date thereof.
"Corporate Trust Office" shall mean
the principal office of the Trustee in the
City of New York, at which at any particular
time its corporate trust business shall be
administered, which office at the date of the
execution of this Agreement is located at
Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust & Agency Group,
Structured Finance Team.
"Cut-Off Date" shall mean the open
of business for the Seller's retail stores on
March 1, 1999.
"Dedicated Zip Code" shall mean the
dedicated zip code, or similar arrangement, to
which Obligors are instructed to mail their
payments in respect of Receivables, and any
successor arrangement to which the Consent of
Certificateholders shall have been obtained.
"Defaulted Amount" with respect to
any Determination Date shall mean an amount
(which shall not be less than zero) equal to
(a) for all the Accounts included in the Pool,
the amount of Principal Receivables which
became Defaulted Receivables during the
immediately preceding Collection Period minus
(b) the full amount of any such Defaulted
Receivables which are subject to reassignment
or assignment to the Depositor or the Servicer
in accordance with the terms of this
Agreement; provided, however, that, if an
Insolvency Event occurs with respect to the
Depositor the amounts of such Defaulted
Receivables which are subject to reassignment
to the Depositor shall not be included in
clause (b) and, if an Insolvency Event occurs
with respect to the Servicer, the amount of
such Defaulted Receivables which are subject
to assignment to the Servicer shall not be
included in clause (b).
"Defaulted Receivables" shall mean,
with respect to any Collection Period, all
Receivables which are charged off by the
Servicer as uncollectible in respect of such
Collection Period in accordance with the
Servicer's customary and usual servicing
procedures for servicing Obligor receivables
comparable to the Receivables which have not
been sold to third parties. Notwithstanding
the foregoing, a Principal Receivable shall
become a Defaulted Receivable on the day on
which such Principal Receivable is recorded as
charged off on the Servicer's computer master
file of Accounts but, in any event, shall be
deemed a Defaulted Receivable no later than
the earlier of (i) the day on which it becomes
180 days Contractually Delinquent and (ii) the
day which is 30 days after the day on which
the Servicer receives notice of any of the
following events: (A) the Obligor has filed
for bankruptcy (B) the Obligor has had a
bankruptcy petition filed against it or (C)
the Obligor is deceased. Receivables that are
Ineligible Receivables at the time that they
are transferred to the Trust shall not be
considered Defaulted Receivables hereunder.
"Deposit Account Agreement" shall
mean a letter agreement entered into by and
among the Servicer, the Trustee and a
financial institution at which a Local Deposit
Account is maintained for the purpose of
receiving Collections, substantially in the
form of Exhibit K hereto.
"Depositor" shall mean GCRC, and its
successors in interest to the extent permitted
hereunder.
"Depositor Exchange" shall have the
meaning given in Section 6.03(c) hereof.
"Depositor Interest" shall have the
meaning specified in Section 4.01 hereof.
"Determination Date" with respect to
any Distribution Date shall mean the day that
is two Business Days prior to such
Distribution Date.
"Direct Debit Payments" shall mean
any payment made by an Obligor with respect to
a Receivable via an electronic debit made by a
Collection Servicer to a checking, savings or
other account maintained by the Obligor and
crediting the Obligor's Charge Account.
"Discount Portion" shall mean the
portion of Principal Receivables that shall be
treated as Finance Charge Receivables pursuant
to Section 2.07(a) hereof.
"Discount Rate"' shall have the
meaning specified in Section 2.07(b) hereof.
"Distribution Date" shall mean the
15th day of each month or, if such day is not
a Business Day, the next succeeding Business
Day.
"Distribution Date Statement" shall
mean, with respect to any Series, a report
prepared by the Servicer on each Determination
Date for the immediately preceding Collection
Period in substantially the form set forth in
the related Supplement.
"Duff & Xxxxxx" shall mean Duff &
Xxxxxx Credit Rating Co., or its successors.
"Early Amortization Event" shall
have the meaning specified in Section 9.01
hereof and, with respect to any Series, shall
also mean any Early Amortization Event
specified in the related Supplement for that
Series.
"Early Amortization Period" shall
mean, with respect to any Series, the period
beginning at the close of business on the day
on which an Early Amortization Event occurs or
is deemed to have occurred, and in each case
ending upon the earlier to occur of (a) the
payment in full to the Certificateholders of
such Series of the Invested Amount with
respect to such Series (including, to the
extent set forth in the applicable Series
Supplement, reimbursement of charge-offs in
respect thereof and payment of any accrued
make-whole premium and interest thereon), (b)
the Termination Date with respect to such
Series, and (c) termination of the Trust.
"Eligible Account" shall mean, as of
any time of determination, each Charge Account
owned by the Seller:
(a) which was created in accordance with the
Financial Guidelines of the Seller at the time
of creation of such Charge Account;
(b) which is payable in U.S. dollars;
(c) which has in full force and effect a
Charge Account Agreement that has been duly
authorized and which constitutes the legal,
valid and binding obligation of the Obligor
enforceable against such Obligor in accordance
with its terms and is not subject to any
dispute, offset, counterclaim or defense
whatsoever, including defenses arising out of
violations of usury laws (except the discharge
in bankruptcy of such Obligor);
(d) which has in full force and effect all
consents, licenses, or authorizations of, or
registrations with, any governmental authority
required to be obtained or given in connection
with such Charge Account;
(e) which has not been closed at the request
of the Obligor;
(f) which has not been identified by the
Seller in its computer files as having an
Obligor that is (i) deceased, (ii) a minor
under the laws of his/her state of residence
or (iii) not competent to enter into a
contract or incur debt;
(g) which has not been sold or pledged to any
Person other than the Depositor or the Trust,
as applicable, and which does not include
Receivables which have been sold or pledged to
any other Person;
(h) the Receivables of which the Seller has
not charged off in its customary and usual
manner for charging off Receivables in such
Charge Accounts unless such Charge Account is
subsequently reinstated;
(i) not more than 120 days Contractually
Delinquent;
(j) under which a credit card is outstanding
that has not expired or been identified by the
Seller or the Servicer as lost or stolen;
(k) which has not been identified by the
Seller or the Servicer in its computer files
as a Charge Account as to which the Seller or
the Servicer has any confirmed record of any
fraud-related activity by the Obligor
thereunder;
(l) which has been identified by the Servicer
in its computer files as having an Obligor
that has provided as his/her most recent
billing address an address located in the
United States or its territories or
possessions or Canada;
(m) which has not been identified by the
Servicer in its computer files as having an
Obligor that is involved in a voluntary or
involuntary bankruptcy proceeding; and
(n) under which no Receivable arising
therefrom has been classified as an Ineligible
Receivable.
"Eligible Deposit Account" shall
mean either (a) a segregated account with an
Eligible Institution or (b) a segregated trust
account with the corporate trust department of
a depository institution or trust company
organized under the laws of the United States
or any one of the states thereof, including
the District of Columbia (or any domestic
branch of a foreign bank) having corporate
trust powers and acting as trustee for funds
deposited in such account subject to
regulations on fiduciary funds on deposit
substantially similar to 12 C.F.R. 9-10(b).
"Eligible Institution" shall mean a
depository institution (which may be the
Trustee) or trust company organized under the
laws of the United States of America or any
one of the states thereof, or the District of
Columbia (or any domestic branch of a foreign
bank) which at all times (i) has a long-term
unsecured debt rating of A2 or better by
Xxxxx'x, A or better by Standard & Poor's, A
or better by Duff & Xxxxxx or A or better by
Fitch or such other rating that is acceptable
to each Rating Agency, as evidenced by a
letter from such Rating Agency to the Trustee
and (ii) is a member of the FDIC.
"Eligible Investments" shall mean
book-entry securities, negotiable instruments
or securities represented by instruments in
bearer or registered form in each case having
original or remaining maturities of thirty
(30) days or less, but in no event maturing
later than the Distribution Date next
succeeding the Trustee's acquisition thereof
which evidence:
(a) obligations of, or obligations fully
guaranteed as to timely payment by, the United
States of America;
(b) demand deposits, time deposits or
certificates of deposit of any depository
institution or trust company incorporated
under the laws of the United States of America
or any state thereof, including the District
of Columbia (or any domestic branch of a
foreign bank) and subject to supervision and
examination by Federal or state banking or
depository institution authorities; provided,
however, that at the time of the Trust's
investment or contractual commitment to invest
therein, the commercial paper or other short-
term unsecured debt obligations (other than
such obligations the rating of which is based
on the credit of a person or entity other than
such depository institution or trust company)
thereof shall have a credit rating from each
Rating Agency in the highest investment
category granted thereby;
(c) commercial paper having, at the time of
the Trust's investment or contractual
commitment to invest therein, a rating from
each Rating Agency in the highest investment
category granted thereby;
(d) investments in money market funds having
a rating from each Rating Agency in the
highest investment category granted thereby
and which seek to maintain a constant net
asset value (including those for which the
Trustee acts as investment manager or
advisor);
(e) bankers' acceptances issued by any
depository institution or trust company
referred to in clause (b) above; provided,
however, that at the time of the Trust's
investment or contractual commitment to invest
therein, the commercial paper or other short-
term unsecured debt obligations (other than
such obligations the rating of which is based
on the credit of a person or entity other than
such depository institution or trust company)
thereof shall have a credit rating from each
Rating Agency in the highest investment
category granted thereby; and
(f) repurchase obligations with respect to
any security that is a direct obligation of,
or fully guaranteed as to timely payment by,
the United States of America or any agency or
instrumentality thereof the obligations of
which are backed by the full faith and credit
of the United States of America, in either
case entered into with (i) a depository
institution or trust company (acting as
principal) described in clause (b) above or
(ii) a depository institution or trust company
the deposits of which are insured by FDIC.
"Eligible Receivable" shall mean any
Receivable that, at the time of determination:
(a) exists under an Eligible Account;
(b) constitutes an "account" or "general
intangible" as defined in Article 9 of the UCC
as then in effect in the Relevant UCC State;
(c) does not contravene any laws, rules or
regulations applicable thereto (including,
without limitation, rules and regulations
relating to truth in lending, fair credit
billing, fair credit reporting, equal credit
opportunity, fair debt collection practices
and privacy) or the Charge Account Agreement
that could reasonably be expected to have an
adverse impact on the amount of Collections
thereunder;
(d) has in full force and effect all
consents, licenses, or authorizations of, or
registrations with, any governmental authority
required to be obtained or given in connection
with the creation of such Receivable;
(e) is free and clear of all Liens and
security interests arising under or through
the Depositor (other than Permitted Liens);
(f) as to which all obligations required to
be fulfilled by the Seller or the Depositor,
as applicable, have been fulfilled;
(g) as to which neither the Seller nor the
Depositor, as applicable, has taken any action
which would impair, or failed to take any
action necessary to avoid impairing, the
rights of the Trust or the Certificateholders
therein; and
(h) is not more than 120 days Contractually
Delinquent.
"Eligible Servicer" shall mean the
Bankers Trust Company or an entity which, at
the time of its appointment as Servicer, (a)
is servicing a portfolio of consumer revolving
credit card accounts, (b) is legally qualified
and has the capacity to service the Accounts,
(c) has demonstrated the ability to
professionally and competently service a
portfolio of similar accounts in accordance
with high standards of skill and care, (d) is
qualified to use the software that is then
currently being used to service the Accounts
or obtains the right to use or has its own
software which is adequate to perform its
duties under this Agreement, and (e) shall
have been the subject of a Consent of
Certificateholders and shall have satisfied
the Rating Agency Condition.
"Enhancement" shall mean the rights
and benefits provided to the
Certificateholders of any Series or Class
pursuant to any letter of credit, surety bond,
cash collateral account, spread account,
guaranteed rate agreement, maturity liquidity
facility, tax protection agreement, interest
rate swap agreement or other similar
arrangement. The subordination of any Series
or Class to any other Series or Class or the
Exchangeable Certificate or of the Depositor
Interest to any Series or Class shall be
deemed to be an Enhancement.
"Enhancement Agreement" shall mean
any agreement, instrument or document
governing the terms of any Enhancement or
pursuant to which any Enhancement is issued or
outstanding.
"Enhancement Provider" shall mean a
Person providing any Enhancement, other than
any Certificateholder (including any holder of
a Subordinated Certificate) whose rights under
a Certificate are subordinated to any Series
or Class.
"ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as
amended.
"ERISA Plan" shall have the meaning
specified in Section 6.04(e)(i) hereof.
"Excess Balance Test" shall mean,
with respect to any Determination Date and any
particular Series, a test that is satisfied if
the related Series Pool Balance as of the
first day of each of the twelve calendar
months preceding such Determination Date shall
have exceeded the sum of the related Required
Series Pool Balance and the Required
Exchangeable Certificate Amount as of the
first day of each such calendar month by at
least 5%, provided, however that for purposes
of determining whether the requirements of the
second sentence of Section 6.03(b)(iv) hereof
have been met with respect to the issuance of
a new Series of Certificates, such test need
only be met for the one-month time period
specified in such section.
"Exchange" shall have the meaning
given thereto in Section 6.03(c) hereof.
"Exchange Date" shall have the
meaning given thereto in Section 6.03(c)
hereof.
"Exchange Notice" shall have the
meaning given thereto in Section 6.03(c)
hereof.
"Exchangeable Amount" shall mean,
with respect to any outstanding Series, the
amount specified in the related Supplement.
"Exchangeable Certificate" shall
mean the certificate substantially in the form
of Exhibit A and exchangeable as provided in
Section 6.03 of this Agreement.
"FASB" shall mean the Financial
Accounting Standards Board.
"FDIC" shall mean the Federal
Deposit Insurance Corporation or any successor
entity thereto.
"Finance Charge Collections" shall
mean Collections under the Receivables other
than Principal Collections; provided, that all
Miscellaneous Payments shall be Finance Charge
Collections.
"Finance Charge Receivables" shall
mean, with respect to any Account, all amounts
billed to the related Obligor in respect of
interest and all other finance charges
(including, without limitation, late fees,
returned check fees and credit life insurance
premiums), any Discount Portion and all
amounts resulting from application of a
Discount Rate pursuant to Section 2.07 hereof,
and any recoveries on Receivables (i.e.
Miscellaneous Payments) previously charged off
as uncollectible.
"Financial Guidelines" shall mean
the written policies and procedures relating
to the operation of the consumer credit card
business of the Seller, including, without
limitation, the written policies and
procedures for determining the
creditworthiness of credit card customers, the
extension of credit to credit card customers,
and the maintenance of credit card accounts
and collection of credit card receivables, as
such policies and procedures may be amended
from time to time in conformance with all
Requirements of Law.
"Fitch" shall mean Fitch IBCA, Inc.
or its successors.
"Gottschalks" shall mean Gottschalks
Inc., a Delaware corporation, and its
successors in interest.
"Governmental Authority" shall mean
the United States of America and any state or
other political subdivision thereof and any
entity exercising executive, legislative,
judicial, regulatory or administrative
functions of or pertaining to government.
"Independent Certified Public
Accountants" shall mean any of (a) Xxxxxx
Xxxxxxxx & Co. (b) Deloitte & Touche, (c)
Ernst & Young, (d) KMPG Peat Marwick and (e)
PricewaterhouseCoopers; provided such firm is
independent within the meaning of the
Securities Act of 1933, as amended.
"Ineligible Account" shall mean a
Charge Account that at the time of
determination is not an Eligible Account.
"Ineligible Receivable" shall mean
any Receivable that at the time of
determination is not an Eligible Receivable.
"Initial Holder" shall mean
Monumental Life Insurance Company.
"Insolvency Event" shall have the
meaning specified in Section 10.01(e).
"In-Store Payments" shall mean any
payment made by an Obligor with respect to a
Receivable by personal delivery of cash,
check, money order or any other form of
payment to a cashier or other employee of the
Seller at a retail premise.
"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.
"Internal Revenue Code" shall mean
the Internal Revenue Code of 1986, as amended.
"Invested Amount" shall mean, for
each Series, the aggregate invested amount for
each Class of such Series.
"Investor Certificates" shall mean
any one of the certificates executed by the
Depositor and authenticated by the Trustee,
substantially in the form attached to the
related Supplement, other than the
Exchangeable Certificate and any Subordinated
Certificate.
"Investor Exchange" shall have the
meaning specified in Section 6.03(c) hereof.
"Investors' Interest" shall have the
meaning specified in Section 4.01 hereof.
"Investors' Servicing Fee" shall
mean the portion of the Servicing Fee
allocable to the Holders of Investor
Certificates of a Series pursuant to the terms
of the related Supplement.
"Lien" shall mean any mortgage, deed
of trust, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien
(statutory or other), preference,
participation interest, priority or other
security agreement or preferential arrangement
of any kind or nature whatsoever, including
any conditional sale or other title retention
agreement and any financing lease having
substantially the same economic effect as any
of the foregoing.
"Liquidation Event" shall have the
meaning specified in Section 9.02(b) hereof.
"Local Deposit Account" shall mean
any Eligible Deposit Account that is
maintained pursuant to a Deposit Account
Agreement for the purpose of receiving
Collections.
"Local Deposit Account Bank" shall
mean a bank that holds one or more Local
Deposit Accounts for receiving Collections
pursuant to a Deposit Account Agreement.
"Minimum Depositor Interest" shall
have the meaning given thereto in any
Supplement.
"Miscellaneous Payments" shall mean,
with respect to any Collection Period, all
Collections and recoveries (net of reasonable
recovery expenses) in respect of Receivables
previously written-off.
"Monthly Servicing Fee" shall mean,
with respect to any Series, the amount
specified therefor in the related Supplement.
"Moody's" shall mean Xxxxx'x
Investors Service, Inc. or its successors.
"1933 Act" shall mean the Securities
Act of 1933, as amended.
"Notice Date" shall have the meaning
specified in Section 2.08(d) hereof.
"Notices" shall have the meaning
specified in Section 13.06 hereof.
"Obligor" shall mean a Person
obligated to make payments with respect to a
Receivable arising under a Charge Account.
"Officer's Certificate" shall mean,
with respect to any corporation, unless
otherwise specified in this Agreement, a
certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President,
any Vice President, Treasurer, any Assistant
Treasurer, Secretary or any Assistant
Secretary of such corporation.
"Opinion of Counsel" shall mean a
written opinion of counsel, in form and
substance satisfactory to the Trustee, who may
be counsel for, or an employee of, the
Depositor or Gottschalks, and who shall be
reasonably acceptable to the Trustee.
"Outstanding Balance" shall mean,
with respect to a Receivable on any day, the
aggregate amount owed by the Obligor
thereunder as of the close of business on the
prior Business Day (net of returns and
adjustments).
"Permitted Lien" shall mean, with
respect to the Receivables: (a) Liens in
favor of the Depositor created pursuant to the
Receivables Purchase Agreement assigned to the
Trustee pursuant to this Agreement; (b) Liens
in favor of the Trustee pursuant to this
Agreement; and (c) Liens which secure the
payment of taxes, assessments and governmental
charges or levies, if such taxes, assessment
and governmental charges or levies are either
(x) not delinquent or (y) being contested in
good faith by appropriate legal or
administrative proceedings and as to which
adequate reserves in accordance with generally
accepted accounting principles shall have been
established.
"Permitted Transaction" shall have
the meaning specified in Section 2.05(f)
hereof.
"Person" shall mean any legal
person, including any individual, corporation,
partnership, association, joint-stock company,
trust, unincorporated organization,
governmental entity or other entity of similar
nature.
"Pool" shall mean, at any time of
determination, all Accounts with respect to
which the related Receivables have been
transferred to the Trust pursuant to Section
2.01 hereof.
"Pool Balance" shall mean, at any
time of determination, the aggregate of
Principal Receivables constituting Eligible
Receivables in the Pool at such time.
"Principal Collections" shall mean
Collections of Principal Receivables.
"Principal Receivables" shall mean,
for any day with respect to any Account,
amounts shown on the Servicer's records on
such day as Receivables (other than such
amounts which represent Finance Charge
Receivables) payable by the related Obligor;
provided that Principal Receivables shall not
include the Discount Portion. The receipt of
each Adjustment Payment and each Transfer
Deposit Amount shall also be treated as a
collection of a Principal Receivable.
"Principal Terms" shall mean, with
respect to any Series:
(a) the name or designation;
(b) the initial principal amount or invested
amount (or method for calculating such
amount);
(c) the Certificate Rate (or method for the
determination thereof);
(d) the payment date or dates and the date or
dates from which interest shall accrue;
(e) the method for allocating Collections to
Certificateholders;
(f) the designation of any Series Accounts
and the terms governing the operation of any
such Series Accounts;
(g) the Monthly Servicing Fee, and the
Investors' Servicing Fee, if any;
(h) the identity of the Enhancement Provider
and the terms of any form of Enhancement with
respect thereto, if any;
(i) the terms on which the Investor
Certificates of such Series may be exchanged
for Investor Certificates of another Series,
repurchased by the Depositor or remarketed to
other investors;
(j) the Termination Date;
(k) the number of Classes of Investor
Certificates of such Series and, if more than
one Class, the rights and priorities of each
such Class;
(l) the extent to which the Investor
Certificates of such Series will be issuable
in temporary or permanent global form (and, in
such case, the depository for such global
certificate or certificates, the terms and
conditions, if any, upon which such global
certificates may be exchanged, in whole or in
part, for definitive certificates and the
manner in which any interest payable on a
temporary or global certificate will be paid);
(m) whether the Investor Certificates of such
Series may be issued in bearer form and any
limitations imposed thereon;
(n) the priority of such Series with respect
to any other Series;
(o) whether such Series will be part of a
group;
(p) the Required Series Pool Balance for such
Series; and
(q) the Minimum Depositor Interest.
"Purchase Price" shall mean, with
respect to any Receivable for any date on
which such Receivable is to be purchased (a)
an amount equal to the principal amount
payable by the Obligor in respect thereof as
reflected in the records of the Servicer as of
the date of purchase, plus (b) late charges
and interest, if any, accrued thereon at a per
annum rate equal to the rate being charged to
the Obligor under the Charge Account Agreement
based on the actual number of days elapsed
over a year of 360 days.
"Rating Agency" shall mean, with
respect to any outstanding Series or Class,
each statistical rating agency, if any,
selected by the Depositor to rate the Investor
Certificates of such Series or Class.
"Rating Agency Condition" shall
mean, with respect to any action, that, after
any required notice has been given to the
applicable Rating Agencies, each such Rating
Agency shall have notified each of the
Depositor, the Servicer and the Trustee in
writing that such action will not result in a
reduction or withdrawal of the rating of any
outstanding Series or Class with respect to
which it is a Rating Agency.
"Reassignment" shall have the
meaning specified in Section 2.06(c) hereof.
"Receivables" shall mean, with
respect to any Obligor, all right to payment
for money due or to become due under a Charge
Account Agreement arising in an Account from a
sale of merchandise or services, and includes
the right to payment of any interest or
finance charges (including, without
limitation, late fees, credit life insurance
premiums and Miscellaneous Payments) and other
obligations of such Obligor with respect
thereto. Each Receivable includes, without
limitation, all rights of the Seller and
obligations of the Obligor under the
applicable Charge Account Agreement. Each
increase in the Outstanding Balance of any
Receivable (other than any such increase
resulting from the accrual of interest or
finance charges or other fees with respect to
such Receivable) shall, for purposes of
Article II, constitute a separate Receivable.
The receipt of each Adjustment Payment and
each Transfer Deposit Amount shall be treated
as a collection of a Principal Receivable.
"Receivables Purchase Agreement"
shall mean the amended and restated
receivables purchase agreement between
Gottschalks and the Depositor, in
substantially the form attached hereto as
Exhibit J, dated as of the date hereof,
governing the terms and conditions upon which
the Depositor acquired and is acquiring the
initial Receivables transferred to the Trust
on the Closing Date and all Receivables
acquired thereafter, as the same may from time
to time be amended, modified or otherwise
supplemented.
"Record Date" shall mean, with
respect to any Distribution Date, the last day
of the month preceding the month in which such
Distribution Date occurs and, if distributions
are made on any date other than a Distribution
Date, the day immediately preceding such other
date.
"Recoveries" shall mean, with
respect to any Distribution Date, any amounts
received during the Related Collection Period
by the Servicer with respect to Defaulted
Receivables (net of reasonable recovery
expenses).
"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
Allocation Day, the Distribution Date
following such Collection Period or following
the month in which such Allocation Day occurs.
"Related Documents" shall mean,
collectively, the Receivables Purchase
Agreement and, with respect to any Series, any
applicable Enhancement Agreement and any
applicable certificate purchase agreement.
"Relevant UCC State" shall mean each
jurisdiction in which the filing of a UCC
financing statement is necessary to perfect
the security interest of the Trustee
established under the Agreement.
"Removal Date" shall have the
meaning specified in Section 2.06(b) hereof.
"Removal Notice Date" shall have the
meaning specified in Section 2.06(b) hereof.
"Removed Accounts" shall have the
meaning specified in Section 2.06(a) hereof.
"Required Exchangeable Certificate
Amount" shall have the meaning specified in
the related Series Supplement.
"Required Pool Balance" shall mean,
at any time of determination, the sum of the
Required Series Pool Balances for all
outstanding Series at such time.
"Required Series Pool Balance" with
respect to any Series shall have the meaning
specified in the related Supplement.
"Requirements of Law" for any Person
shall mean the certificate or articles of
incorporation and by-laws or other
organizational or governing documents of such
Person, and any law, treaty, rule or
regulation, court order or determination of an
arbitrator or Governmental Authority, in each
case applicable to or binding upon such Person
or to which such Person is subject, whether
Federal, state or local (including usury laws,
and the Federal Truth in Lending Act and the
Equal Credit Opportunity Act).
"Responsible Officer" shall mean any
Managing Director, Principal, Vice President,
Assistant Vice President, Assistant Secretary,
Assistant Treasurer, trust officer and any
other officer of the Trustee customarily
performing functions within the corporate
trust department and also, with respect to a
particular matter, any other officer to whom
such matter is referred because of such
officer's knowledge of and familiarity with
that relevant subject.
"Revolving Period" shall mean, with
respect to any Series, the period specified as
such in the related Supplement.
"Seller" shall mean Gottschalks.
"Series" shall mean any series of
Certificates issued pursuant to a Supplement.
"Series Account" shall mean any
deposit, trust, escrow, reserve or similar
account maintained for the benefit of the
Certificateholders of any Series or Class, as
specified in any Supplement.
"Series Allocation Percentage" shall
mean, with respect to any Series, (a) with
respect to all collections on Receivables,
prior to the commencement of the related
Controlled Amortization Period or an Early
Amortization Period, a fraction, expressed as
a percentage, the numerator of which is the
Adjusted Invested Amount for such Series and
the denominator of which is the sum of the
Adjusted Invested Amounts for all outstanding
Series, in each case, measured as of the first
day of the relevant Collection Period, (b)
with respect to Finance Charge Collections and
Default Amounts during the related Controlled
Amortization Period or an Early Amortization
Period, the percentage described in clause
(a), and (c) with respect to Principal
Collections during the related Controlled
Amortization Period or an Early Amortization
Period, a fraction, expressed as a percentage,
the numerator of which the Adjusted Invested
Amount for such Series and the denominator of
which is the sum of the Adjusted Invested
Amounts for all outstanding Series, in each
case, measured as of the first day of the last
Collection Period to commence before the
commencement of the Controlled Amortization
Period or Early Amortization Period.
"Series Cut-Off Date" shall mean,
with respect to any Series, the date specified
as such in the related Supplement.
"Series Issuance Date" shall mean,
with respect to any Series, the date specified
as such in the related Supplement.
"Series Pool Balance" with respect
to a particular Series shall mean, as of any
date of determination, the product of (a) the
Pool Balance as of such date and (b) the
related Series Allocation Percentage for such
date.
"Series Termination Date" shall mean
the Distribution Date specified in the related
Supplement for termination of the related
Series.
"Service Transfer" shall have the
meaning specified in Section 10.01 hereof.
"Servicer" shall initially mean
Gottschalks, in its capacity as Servicer under
this Agreement, and after any Service
Transfer, the Successor Servicer.
"Servicer Default" shall have the
meaning specified in Section 10.01 hereof and
in any Series Supplement.
"Servicer Default Certificate" shall
mean an Officer's Certificate to be delivered
by the Servicer upon the occurrence of certain
Servicer Defaults identifying the specific
Servicer Default(s), the Servicer's strategy
for curing any such Servicer Default and
certifying that (i) the Servicer is working in
good faith to effect a cure of the Servicer
Default in question and (ii) to the best of
the Servicer's knowledge as of the date of
such Officer's Certificate, the Servicer
Default in question is curable within the time
frame set forth in such Officer's Certificate.
"Servicing Fee" shall mean the
aggregate of any Monthly Servicing Fees
specified in the Supplements.
"Servicing Officer" shall mean any
officer of the Servicer involved in, or
responsible for, the administration and
servicing of the Receivables whose name
appears on a list of servicing officers
furnished to the Trustee by the Servicer, as
such list may from time to time be amended.
"Special Interest Receivables" shall
mean, with respect to an Account, Receivables
arising under special promotional programs
pursuant to which the accrual of finance
charges with respect to such Receivables is
waived, reduced or deferred.
"Standard & Poor's" shall mean
Standard & Poor's Ratings Services or its
successors.
"Subordinated Certificate" shall
mean, with respect to any Series, the
Certificates specified as such in the related
Supplement.
"Successor Servicer" shall have the
meaning specified in Section 10.02(a) hereof.
"Supplement" and "Series Supplement"
shall mean, with respect to any Series, a
Supplement to this Agreement, executed and
delivered in connection with the original
issuance of the Investor Certificates of such
Series pursuant to Section 6.03 hereof, and
all amendments thereof and supplements
thereto.
"Supplemental Accounts" shall mean,
as of the applicable Supplemental Addition
Date, each Charge Account designated by the
Depositor pursuant to Section 2.08(b) or (c)
hereof.
"Supplemental Addition Date" shall
mean, with respect to a Charge Account
originated by the Seller during the
continuance of a Block Period, the first
Business Day on which Receivables arising
under such Charge Account are to be
transferred to the Trust as specified in the
notice provided pursuant to Section 2.08(d)(i)
hereof.
"Tax Opinion" shall mean, with
respect to any action, an Opinion of Counsel
(which shall not have been issued by an
employee of the Depositor or Gottschalks) to
the effect that, for Federal income tax
purposes, (a) such action will not adversely
affect the characterization as debt of the
Investor Certificates of any outstanding
Series or Class that were characterized as
debt at the time of their issuance, (b) such
action will not cause or constitute a taxable
event with respect to any Certificateholders
or the Trust, (c) in the case of Section
6.03(b) hereof, the Investor Certificates of
the new Series will properly be characterized
as debt and (d) such action will not cause the
Trust to be treated as an association (or
publicly traded partnership) taxable as a
corporation.
"Termination Date" shall mean, with
respect to any Series, the termination date
specified in the related Supplement.
"Termination Notice" shall have the
meaning specified in Section 10.01 hereof.
"Termination Proceeds" shall have
the meaning specified in Section 12.02(c)
hereof.
"Transfer Agent and Registrar" shall
have the meaning specified in Section 6.04(a)
hereof.
"Transfer Date" shall mean, with
respect to each Receivable, the Business Day
after the Cut-Off Date and prior to the
earlier of (i) the occurrence of a Liquidation
Event, and (ii) the Trust Termination Date, on
which such Receivable was created (or, if such
date of creation was not a Business Day, the
next succeeding Business Day) and transferred
to the Trust pursuant to Section 2.01 hereof.
"Transfer Deposit Amount" shall
mean, with respect to any Receivable
reassigned or assigned to the Depositor or the
Servicer, as applicable, pursuant to Section
2.04(c) or Section 3.03 hereof, the amounts
specified in such Sections.
"Trust" shall mean the Gottschalks
Credit Card Master Trust created by this
Agreement, the corpus of which shall consist
of the Trust Assets.
"Trust Assets" shall have the
meaning specified in Section 2.01 hereof.
"Trust Liquidation Proceeds" shall
have the meaning specified in Section 9.02(c)
hereof.
"Trust Termination Date" shall have
the meaning specified in Section 12.01 hereof.
"Trustee" shall mean Bankers Trust
Company, a New York banking corporation, not
in its individual capacity but solely as
Trustee hereunder, or its successor in
interest, or any successor trustee appointed
as herein provided.
"UCC" shall mean the Uniform
Commercial Code, as amended from time to time,
as in effect in any specified jurisdiction.
"Vice President" when used with
respect to the Depositor and Servicer shall
mean any vice president whether or not
designated by a number or word or words added
before or after the title "vice president".
"Village East" shall mean the
Village East women's apparel division of
Gottschalks.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement shall
have the defined meanings when used in any
certificate or other document made or
delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Agreement and in any
certificate or other document made or
delivered pursuant hereto or thereto,
accounting terms not defined in this Agreement
or in any such certificate or other document,
and accounting terms partly defined in this
Agreement or in any such certificate or other
document to the extent not defined, shall have
the respective meanings given to them under
generally accepted accounting principles. To
the extent that the definitions of accounting
terms in this Agreement or in any such
certificate or other document are inconsistent
with the meanings of such terms under
generally accepted accounting principles, the
definitions contained in this Agreement or in
any such certificate or other document shall
control.
(c) Any reference to each Rating Agency shall
only apply to any specific rating agency if
such rating agency is then rating the Investor
Certificates of any outstanding Series.
(d) Unless otherwise specified, references to
any amount as on deposit or outstanding on any
particular date shall mean such amount at the
close of business on such day.
(e) The words "hereof", "herein" and
"hereunder" and words of similar import when
used in this Agreement shall refer to this
Agreement as a whole and not to any particular
provision of this Agreement; Article, Section,
Schedule and Exhibit references contained in
this Agreement are references to Articles,
Sections, Schedules and Exhibits in or to this
Agreement unless otherwise specified; and the
term "including" shall mean "including without
limitation".
(f) The definitions contained in this
Agreement are applicable to the singular as
well as the plural forms of such terms and to
the masculine as well as to the feminine and
neuter genders of such terms.
(g) 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 II
CONVEYANCE OF RECEIVABLES
SECTION 2.01. Conveyance of Receivables. By
execution of this Agreement, the Depositor
does hereby sell, transfer, assign, set over
and otherwise convey, without recourse (except
as expressly provided herein), to the Trustee,
on behalf of the Trust, for the benefit of the
Beneficiaries, (a) all of Depositor's right,
title and interest in, to and under the
Receivables existing at the close of business
on the Cut-Off Date, and all monies due or to
become due and all amounts received with
respect thereto and all proceeds thereof
(including "proceeds", as defined in Section
9306 of the UCC as in effect in the State of
California and Section 9-306 of the UCC as in
effect in the State of New York, and
Recoveries) and (b) all of the Depositor's
rights, remedies, powers and privileges under
the Receivables Purchase Agreement. As of
each Transfer Date, the Depositor does hereby
sell, transfer, assign, set over and otherwise
convey, without recourse (except as expressly
provided herein), to the Trustee, on behalf of
the Trust, for the benefit of the
Beneficiaries, all of the Depositor's right,
title and interest in, to and under the
Receivables (other than Receivables that are
(i) charged off as of the date of transfer,
(ii) repurchased by the Depositor, (iii)
generated during a Block Period in Blocked
Accounts, (iv) generated in a Removed Account
from and after the applicable Removal Date, as
provided in Section 2.06(c) hereof or (iv)
arising under charge accounts acquired by
Gottschalks in connection with the acquisition
of new stores or another retailer, or
originated by Gottschalks at such stores
(unless included in the Trust at the
Depositor's option)) owned by the Depositor at
the close of business on such Transfer Date
and not theretofore conveyed to the Trustee,
on behalf of the Trust, for the benefit of the
Beneficiaries, all monies due or to become due
and all amounts received with respect thereto
and all proceeds thereof (including
proceeds, as defined in Section 9306 of the
UCC as in effect in the State of California,
and Recoveries). Such property, together with
all monies on deposit in, and Eligible
Investments credited to, the Collection
Account or any Series Account and any
Enhancements including such monies as are from
time to time available thereunder shall
collectively constitute the assets of the
Trust (the 'Trust Assets'). The foregoing
sale, transfer, assignment, set-over and
conveyance and any subsequent sales,
transfers, assignments, set-overs and
conveyances do not constitute, and are not
intended to result in, the creation or an
assumption by the Trust, the Trustee or any
Beneficiary of any obligation of the Servicer,
the Seller, the Depositor or any other Person
in connection with the Accounts, the
Receivables, or under any agreement or
instrument relating thereto, including any
obligation to any Obligors. The foregoing
sale, transfer, assignment, set-over and
conveyance to the Trust shall be made to the
Trustee, on behalf of the Trust, and each
reference in this Agreement to such sale,
transfer, assignment, set-over and conveyance
shall be construed accordingly.
In connection with such sale,
transfer, assignment, set-over and conveyance,
the Depositor agrees to record and file, at
its own expense, a financing statement on form
UCC-1 (and continuation statements when
applicable) with respect to the Receivables
now existing and hereafter created for the
sale of "accounts" (in each case as defined in
Section 9106 of the UCC as in effect in any
state where the Depositor's or the Seller's
chief executive offices or books and records
relating to the Receivables are located) and
with respect to all other Trust Assets meeting
the requirements of applicable state law in
such manner and in such other jurisdictions as
are necessary to perfect, and maintain the
perfection of, the sale and assignment of the
Receivables to the Trust, and to deliver a
file-stamped copy of each such financing
statement or other evidence of such filing to
the Trustee on or prior to the first Closing
Date, and in the case of any continuation
statements filed pursuant to this Section
2.01, as soon as practicable after receipt
thereof by the Depositor.
The Depositor further agrees, at its
own expense, (a) on or prior to the date on
which each Charge Account becomes an Account,
to cause the Seller to indicate in its
computer files as required by the Receivables
Purchase Agreement, that the Receivables
created in connection with such Account have
been sold to the Depositor in accordance with
the Receivables Purchase Agreement and sold to
the Trust pursuant to this Agreement and (b)
no less frequently than weekly, to deliver to
the Trustee (or cause the Seller to do so) a
computer file or microfiche or written list
containing a true and complete list of all
Accounts specifying for each Account, (i) its
account number (ii) the aggregate amount of
Receivables outstanding in such Account, and
(iii) the aggregate amount of Principal
Receivables in such Account. Such file,
microfiche or list, as supplemented from time
to time, shall be marked as Schedule I to this
Agreement and is hereby incorporated into and
made a part of this Agreement. The Trustee
shall be under no obligation whatsoever to
verify the accuracy or completeness of the
information contained on Schedule I from time
to time.
It is the intention of the Depositor
and the Servicer that the arrangements with
respect to the Receivables shall constitute a
purchase and sale of such Receivables and not
a loan. In the event, however, that a court
of competent jurisdiction were to hold that
the transactions evidenced hereby constitute a
loan and not a purchase and sale, it is the
intention of the parties hereto that this
Agreement shall constitute a security
agreement under applicable law. In this
regard, Depositor hereby grants and transfers
to the Trustee a first priority security
interest in all of the Depositor's right,
title and interest in, to and under (i) the
Receivables now existing and hereafter created
and arising in connection with the Accounts,
all monies due or to become due with respect
thereto (including all Finance Charge
Receivables) and all proceeds thereof
(including proceeds as defined in Section
9306 of the UCC as in effect in the State of
California and Section 9-306 of the UCC as in
effect in the State of New York) (ii) the
Receivables Purchase Agreement, (iii) any
other Trust Assets and (iv) Recoveries, to
secure a loan in an amount equal to the unpaid
principal amount of the Investor Certificates
and Subordinated Certificates issued hereunder
or to be issued pursuant to this Agreement and
the interest accrued thereon (as applicable)
at the related Certificate Rate.
Section 2.02. Acceptance by Trustee.
(a) The Trustee hereby acknowledges its
acceptance, on behalf of the Trust, of all
right, title and interest previously held by
the Depositor in and to the property, now
existing and hereafter created, conveyed to
the Trust pursuant to Section 2.01 hereof and
declares that it shall maintain such right,
title and interest, upon the trust herein set
forth, for the benefit of the Beneficiaries.
The Trustee further acknowledges that, prior
to or simultaneously with the execution and
delivery of this Agreement, the Depositor
delivered to the Trustee the computer file or
microfiche or written list relating to the
Accounts existing on the Cut-Off Date
described in Section 2.01 hereof.
(b) The Trustee shall have no power to
create, assume or incur indebtedness or other
liabilities in the name of the Trust other
than as contemplated in this Agreement.
(c) The Trustee hereby agrees not to disclose
to any Person any of the account numbers or
other information contained in the computer
files or microfiche or written lists delivered
to the Trustee or the bailee of the Trustee by
the Depositor pursuant to this Agreement
("Account Information") except as is required
in connection with the performance of its
duties hereunder or in enforcing the rights of
the Certificateholders or to a Successor
Servicer appointed pursuant to Section 10.02,
any successor trustee appointed pursuant to
Section 11.08, any co-trustee or separate
trustee appointed pursuant to Section 11.10 or
any other Person in connection with a UCC
search or as mandated pursuant to any
Requirement of Law applicable to the Trustee.
The Trustee agrees to take such measures as
shall be reasonably requested by the Depositor
to protect and maintain the security and
confidentiality of such information, and, in
connection therewith, shall allow the
Depositor to inspect the Trustee's or the
bailee of the Trustee's security and
confidentiality arrangements from time to time
during normal business hours. In the event
that the Trustee is required by law to
disclose any Account Information, the Trustee
shall use its best efforts to provide the
Depositor with written notice no later than
five days prior to any disclosure pursuant to
this subsection 2.02(c), unless such notice is
prohibited by law, of any such request or
requirement so that the Depositor may request
a protective order or other appropriate
remedy.
Section 2.03. Representations and Warranties
of the Depositor Relating to the Depositor and
this Agreement.
(a) The Depositor hereby represents and
warrants to the Trust and to the Trustee as of
each Closing Date that:
(i) Organization and Good Standing. The
Depositor is a corporation duly organized and
validly existing and in good standing under
the law of the State of Delaware and has full
corporate power, authority and legal right to
own its properties and conduct its business as
such properties are presently owned and such
business is presently conducted, and to
execute, deliver and perform its obligations
under this Agreement, each Supplement, and the
Related Documents to which it is a party, and
to authorize the Trustee to execute and
deliver the Certificates on behalf of the
Depositor. The Depositor's legal name is
Gottschalks Credit Receivables Corporation,
and it has no tradenames, fictitious names,
assumed names or doing business as names.
The Depositor has no subsidiaries.
(ii) Due Qualification. The Depositor is duly
qualified to do business and is in good
standing as a foreign corporation (or is
exempt from such requirement) and has obtained
all necessary licenses and approvals in each
jurisdiction in which the conduct of its
business requires such qualification except
where the failure to so qualify or be in good
standing or obtain licenses or approvals would
not have a material adverse effect on its
ability to perform its obligations hereunder.
(iii) Due Authorization. The execution
and delivery by the Depositor of this
Agreement, each Supplement, each Certificate
and the Related Documents to which it is a
party, and the authentication and delivery by
the Trustee of the Certificates on behalf of
the Depositor, and the consummation of the
transactions provided for or contemplated by
this Agreement, each Supplement and the
Related Documents to which the Depositor is a
party, have been duly authorized by the
Depositor by all necessary corporate action on
the part of the Depositor.
(iv) No Conflict. The execution and delivery
by the Depositor of this Agreement, each
Supplement, the Related Documents to which it
is a party and the Certificates, the
performance by the Depositor of the
transactions contemplated by this Agreement,
each Supplement and the Related Documents to
which it is a party and the fulfillment of the
terms hereof and thereof applicable to the
Depositor, will not conflict with, result in
any breach of any of the terms and provisions
of or constitute (with or without notice or
lapse of time or both) a default under, any
indenture contract, agreement, mortgage, deed
of trust, or other instrument to which the
Depositor is a party or by which it or its
properties are bound.
(v) No Violation. The execution and delivery
by the Depositor of this Agreement, each
Supplement, the Related Documents to which it
is a party and the Certificates, the
performance by the Depositor of the
transactions contemplated by this Agreement,
each Supplement and the Related Documents to
which it is a party and the fulfillment of the
terms hereof and thereof applicable to the
Depositor, will not conflict with or violate
any Requirements of Law applicable to the
Depositor or give rise to an adverse claim
upon the Depositor or the Receivables.
(vi) No Proceedings. There are no proceedings
or investigations pending or, to the best
knowledge of the Depositor, threatened against
the Depositor before any Governmental
Authority (i) asserting the invalidity of this
Agreement, any Supplement, any of the Related
Documents or the Certificates, (ii) seeking to
prevent the issuance of the Certificates or
the consummation of any of the transactions
contemplated by this Agreement, any
Supplement, any of the Related Documents or
the Certificates, (iii) seeking any
determination or ruling that, in the
reasonable judgment of the Depositor, would
materially and adversely affect the
performance by the Depositor of its
obligations under this Agreement, any
Supplement or the Related Documents to which
it is a party, (iv) seeking any determination
or ruling that would affect the validity or
enforceability of this Agreement, any
Supplement, any of the Related Documents or
the Certificates or (v) seeking to affect
adversely the income or franchise tax
attributes of the Trust and of the Investor
Certificates under Federal or state income or
franchise tax systems. There is no
injunction, writ, restraining order or other
order of any nature that adversely affects the
Depositor's performance of this Agreement or
the transaction contemplated hereby.
(vii) All Consents Required. All
appraisals, authorizations, consents, orders,
approvals or other actions of any Person or of
any governmental body or official required in
connection with the execution and delivery by
the Depositor of this Agreement, each
Supplement, each Certificate and the Related
Documents to which it is a party, the
execution and delivery by the Trustee of the
Certificates on behalf of the Depositor, the
performance by the Depositor of the
transactions contemplated by this Agreement,
each Supplement and the Related Documents to
which it is a party, and the fulfillment by
the Depositor of the terms hereof and thereof,
have been obtained.
(viii) Enforceability. This Agreement,
each Supplement, each Certificate and the
Related Documents to which it is a party have
been duly executed and delivered, and each
constitutes a legal, valid and binding
obligation of the Depositor, enforceable
against the Depositor in accordance with its
terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar
laws now or hereafter in effect affecting the
enforcement of creditors' rights generally and
except as such enforceability may be limited
by general principles of equity (whether
considered in a suit at law or in equity) and
the availability of equitable remedies.
(ix) Solvency. The Depositor is not insolvent
and will not become insolvent after giving
effect to the transactions contemplated
hereby; the Depositor is paying its debts as
they become due; the Depositor, after giving
effect to the transactions contemplated
hereby, will have adequate capital to conduct
its business.
(x) Record of Accounts. Schedule I to this
Agreement (as in effect on the date in
question) is an accurate and complete listing
in all material respects of all the Accounts,
and the information contained therein with
respect to the identity and eligibility of
such Accounts and the Receivables existing
thereunder is true and correct in all material
respects.
(xi) Place of Business. The principal place
of business of the Depositor is in Fresno,
California, and the offices where the
Depositor keeps its records concerning the
Receivables and related contracts are in
Fresno, California and there have been no
other such locations during the prior four
months; provided that in the event that the
Depositor shall have changed its place of
business in accordance with Section 13.02(c)
hereof, all references herein to Fresno,
California shall thereafter be to such new
place of business.
(xii) Use of Proceeds. No proceeds of the
issuance of any Certificate will be used by
the Depositor to purchase or carry any margin
security.
(xiii) Not an Investment Company. The
Depositor is not an "investment company" or
"controlled" by an "investment company" within
the meaning of the Investment Company Act of
1940, as amended, or is exempt from all
provisions thereof.
(xiv) Compliance. All applicable laws,
rules, regulations and orders with respect to
the Depositor, its business and properties and
purchased assets have been complied with. All
applicable permits, certifications, etc., have
been maintained. The Depositor has filed all
required tax returns on a timely basis.
(xv) Limited Purpose. The Depositor engages
in no activities other than those pursuant to
this Agreement and the transactions
contemplated hereby.
(xvi) Sale Treatment. The Depositor will
treat (i) its investment in the Receivables
pursuant to the Receivables Purchase Agreement
and (ii) the Trust's investment in the
Receivables pursuant to this Agreement as a
purchase of Receivables, rather than a loan,
for financial reporting purposes.
The representations and warranties
set forth in this Section 2.03 shall survive
the transfer and assignment of the Receivables
to the Trust and the issuance of the
Certificates. Upon discovery by the
Depositor, the Servicer or upon a Responsible
Officer of the Trustee having actual knowledge
of a breach of any of the foregoing
representations and warranties, the party
discovering such breach shall give prompt
written notice thereof to the other parties
and to any Enhancement Providers.
(b) In the event that any of the
representations and warranties set forth in
subsections (viii), (ix), (xii) and (xiii) of
this Section 2.03 have been breached, and such
breach has a material adverse effect on the
value of the Receivables or the interests of
the Certificateholders, then either (i) the
Trustee, if a Responsible Officer thereof has
actual knowledge of such a breach, or (ii)
Certificateholders evidencing not less than a
majority in aggregate unpaid Invested Amount
of all outstanding Certificates of each
Series, by notice then given in writing to the
Depositor (and to the Trustee, any Enhancement
Providers and the Servicer), may direct the
Depositor to purchase the Investors' Interest
not already owned thereby on a Distribution
Date within sixty (60) days of such notice (or
such longer period as may be specified in such
notice), and the Depositor shall be obligated
to make such purchase on a Distribution Date
within such 60-day period on the terms and
conditions set forth below; provided, however,
that no such purchase shall be required to be
made if, by the end of such 60-day period (or
such longer period as may be approved by the
Trustee), such breach shall have been remedied
in all material respects, and any material
adverse effect on the Investors' Interest
and/or the Depositor Interest, as applicable,
caused thereby shall have been cured.
In the event the Depositor is so
directed, the Depositor shall deposit in the
Collection Account in immediately available
funds on the Business Day preceding such
Distribution Date, in payment for such
purchase, an amount equal to the sum of the
amounts specified therefor with respect to
each outstanding Series, as applicable, in the
related Supplement. Notwithstanding anything
to the contrary in this Agreement, such
amounts shall be distributed to the
Certificateholders as applicable, on such
Distribution Date in accordance with Article
IV hereof and the terms of each Supplement.
If the Trustee or the Certificateholders give
notice directing the Depositor to purchase the
Investors' Interest and/or the Depositor
Interest as provided above, the obligation of
the Depositor to effect such purchase pursuant
to this Section 2.03(b) shall constitute the
sole remedy respecting all events of the type
specified in this Section 2.03(b) available to
the Certificateholders and/or the Holder of
the Exchangeable Certificate (or the Trustee
on behalf of such Certificateholders).
Section 2.04. Representations and Warranties
of the Depositor Relating to the Receivables;
Reassignment.
(a) Representations and Warranties. The
Depositor hereby represents and warrants to
the Trust and to the Trustee as of each
Transfer Date that:
(i) Each Receivable conveyed hereunder has
been conveyed to the Trust free and clear of
any Lien, except for Liens permitted under
Section 2.05(a) hereof, and the Trust has
received good title to each such Receivable.
(ii) All appraisals, authorizations, consents,
orders, approvals or other actions of any
Person or of any governmental body or official
required in connection with the conveyance of
each Receivable hereunder to the Trust have
been duly obtained and are in full force and
effect.
(iii) This Agreement constitutes either
(A) a valid transfer, assignment, set-over and
conveyance to the Trust of all right, title
and interest of the Depositor in, to and under
(i) the Receivables now existing and hereafter
created and arising in connection with the
Accounts, all monies due or to become due with
respect thereto (including all Finance Charge
Receivables), all proceeds of such
Receivables, (ii) the Receivables Purchase
Agreement, and (iii) Miscellaneous Payments
thereon, and such Receivables and all proceeds
thereof will be held by the Trust free and
clear of any Lien of any Person claiming
through or under the Depositor or any of its
Affiliates except for Permitted Liens or (B) a
grant of a security interest (as defined in
the UCC as in effect in California and New
York) in, to and under (i) the Receivables now
existing and hereafter created and arising in
connection with the Accounts, all monies due
or to become due with respect thereto
(including all Finance Charge Receivables),
and all proceeds of such Receivables, (ii) the
Receivables Purchase Agreement, and (iii)
Miscellaneous Payments thereon, which grant is
enforceable with respect to the existing
Receivables and any Receivables arising
hereafter and the proceeds thereof upon
execution and delivery of this Agreement, and
which will be enforceable with respect to such
Receivables hereafter created and the proceeds
thereof, upon such creation. If this
Agreement constitutes the grant of a security
interest to the Trust in such property, upon
the filing of the financing statement
described in Section 2.01 and in the case of
the Receivables hereafter created and proceeds
thereof, upon such creation, the Trust shall
have a first priority perfected security
interest in such property (subject to Section
9306 of the UCC as in effect in the State of
California), except for Permitted Liens.
(iv) the Depositor has taken no
action to cause any Receivable sold hereunder
to be anything other than an "account" or
"general intangible" (each as defined in
Section 9106 of the UCC as in effect in
California and Section 9-106 of the UCC as in
effect in New York). The Depositor has taken
no action to evidence any Receivable sold
hereunder by any "instrument" or "chattel
paper" (as defined in Section 9105 of the UCC
as in effect in California and Section 9-105
of the UCC as in effect in New York).
(b) Notice of Breach. The representations
and warranties set forth in this Section 2.04
shall survive the transfer and assignment of
the Receivables to the Trust and the issuance
of the Certificates. Upon discovery by the
Depositor, the Servicer or upon a Responsible
Officer of the Trustee having actual knowledge
of a breach of any of the representations and
warranties set forth in this Section 2.04, the
party discovering such breach shall give
prompt written notice thereof to the other
parties and to any Enhancement Providers. The
Trustee shall provide, promptly after
receiving notice thereof, written notice to
the Rating Agencies of any such breach.
(c) Reassignment. In the event any
representation or warranty under subsection
(a) of this Section 2.04 is not true and
correct as of the date specified therein with
respect to any Receivable or Account, and such
breach has a material adverse effect on the
Investors' Interest or the Depositor Interest
in any such Receivable or Account, then,
within thirty (30) days (or such longer period
as may be approved by the Trustee) of the
earlier to occur of (i) the discovery of any
such event by the Depositor or the Servicer,
or (ii) receipt by the Depositor or the
Servicer of written notice of any such event
given by the Trustee or any Enhancement
Provider, the Depositor shall accept a
reassignment of such Receivable or, in the
case of such an untrue representation or
warranty with respect to an Account, all
Receivables in such Account, on the
Determination Date immediately succeeding the
day of such discovery or notice (or such other
Determination Date as may be agreed to by the
Trustee) on the terms and conditions set forth
in the next succeeding paragraph; provided,
however, that no such reassignment shall be
required to be made with respect to such
Receivable if, by the end of such 30-day
period (or such longer period as may be agreed
to by the Trustee), the breached
representation or warranty shall then be true
and correct in all material respects and any
material adverse effect caused thereby shall
have been cured.
The Depositor shall accept a
reassignment of each such Receivable by
directing the Servicer to deduct, subject to
the next sentence, the portion of such
reassigned Receivable that is a Principal
Receivable from the Pool Balance on or prior
to the end of the Collection Period in which
such reassignment obligation arises. If,
following such deduction, the Pool Balance
would be less than the Required Pool Balance
then, unless a Liquidation Event has occurred,
not later than 12:00 noon (New York City time)
on the day on which such reassignment occurs,
the Depositor shall deposit in the Collection
Account in immediately available funds the
amount (the Transfer Deposit Amount) by
which the Pool Balance would be less than the
Required Pool Balance (up to the principal
amount of such Receivables); provided, that if
the Transfer Deposit Amount is not deposited
as required by this sentence then the
Principal Receivables shall only be deducted
from the Pool Balance to the extent that the
Pool Balance is not reduced below the Required
Pool Balance and the Principal Receivables
which have not been so deducted shall not be
reassigned to the Depositor and shall remain
part of the Trust. Any Transfer Deposit
Amount deposited in the Collection Account
shall be considered Collections of Principal
Receivables and shall be applied in accordance
with Article IV hereof and the terms of each
Supplement. Upon reassignment of such
Receivable, but only after payment by the
Depositor of the Transfer Deposit Amount, if
any, the Trust shall automatically and without
further action be deemed to sell, transfer,
assign, set-over and otherwise convey to the
Depositor, without recourse, representation or
warranty, all the right, title and interest of
the Trust in and to such Receivable and all
moneys due or to become due with respect
thereto and all proceeds thereof. The Trustee
shall execute such documents and instruments
of transfer or assignment and take such other
actions as shall reasonably be requested by
the Depositor to effect the conveyance of such
Receivables pursuant to this Section 2.04.
The obligation of the Depositor to accept a
reassignment of any such Receivable and to pay
any related Transfer Deposit Amount shall
constitute the sole remedy respecting the
event giving rise to such obligation available
to Certificateholders (or the Trustee on
behalf of the Certificateholders).
Section 2.05. Covenants of the Depositor.
The Depositor hereby covenants that:
(a) No Liens. Except for (i) the conveyances
hereunder or (ii) as provided in subsection
(c) of Section 6.03 hereof, the Depositor
shall not sell, pledge, assign or transfer to
any other Person, or grant, create, incur,
assume or suffer to exist any Lien on, any
Receivable, whether now existing or hereafter
created, or any interest therein, or the
Depositor's rights, remedies, powers or
privileges with respect to the Receivables
under the Receivables Purchase Agreement, or
the Exchangeable Certificate or the Depositor
Interest, and the Depositor shall defend the
right, title and interest of the Trust in, to
and under the Receivables, whether now
existing or hereafter created, and such
rights, remedies, powers and privileges,
against all claims of third parties claiming
through or under the Depositor; provided,
however, that nothing in this Section 2.05(a)
shall prevent or be deemed to prohibit the
Depositor from suffering to exist upon any of
the Receivables any Permitted Lien.
(b) Account Allocations. In the event that
the Depositor is unable for any reason to
transfer Receivables to the Trust when
required in accordance with the terms of this
Agreement, then the Depositor agrees that it
shall allocate, after the occurrence of such
event, payments on each affected Account with
respect to the principal balance of such
Account first to the oldest principal balance
of such Account and to have such payments
applied as Collections in accordance with the
terms of this Agreement. The parties hereto
agree that Finance Charge Receivables,
whenever created, accrued in respect of
Principal Receivables which have been conveyed
to the Trust shall continue to be a part of
the Trust notwithstanding any cessation of the
transfer of additional Principal Receivables
to the Trust and Collections with respect
thereto shall continue to be allocated and
paid in accordance with the terms of this
Agreement.
(c) Delivery of Collections. In the event
that the Depositor or the Seller receives
payments in respect of Receivables, the
Depositor agrees to turn over or cause to be
turned over to the Servicer all payments
received thereby in respect of the Receivables
as soon as practicable after receipt thereof,
but in no event later than two (2) Business
Days after the receipt by the Depositor or the
Seller.
(d) Notice of Liens. The Depositor shall
notify the Trustee promptly after becoming
aware of any Lien on any Receivable other than
Permitted Liens.
(e) Compliance With Law. The Depositor
hereby agrees to comply with all Requirements
of Law applicable to the Depositor in
connection with the performance of its
obligations hereunder, the failure to comply
with which would have a materially adverse
effect on the interests of the Beneficiaries.
(f) Activities of the Depositor. The
Depositor will not engage in any business or
activity of any kind or enter into any
transaction other than:
(i) the businesses, activities and
transactions contemplated and authorized by
its Certificate of Incorporation and by-laws,
this Agreement or the Related Documents;
(ii) acquiring, selling, financing, holding,
assigning, pledging and otherwise dealing with
wholesale and retail receivables arising out
of the sale of consumer products and related
activities and transactions;
(iii) transferring such receivables to
trusts pursuant to a pooling and servicing
agreement or similar agreement or arrangement;
(iv) authorizing, selling and delivering any
class of certificates or other securities of
any such trust; and
(v) engaging in any activity and exercising
any powers permitted to corporations under the
laws of the State of Delaware that are related
or incidental to the foregoing and necessary,
convenient or advisable to accomplish the
foregoing (such businesses, activities and
transactions, collectively, "Permitted
Transactions").
(g) Indebtedness. Except for the issuance of
any Series hereunder pursuant to Section 6.03
hereof, the Depositor will not create, incur
or assume any indebtedness (other than
ordinary operating expenses incurred in
connection with the operation of its business
as permitted hereunder) or issue any
securities or sell or transfer any receivables
to a trust or other Person which issues
securities in respect of any such receivables,
unless the Consent of Certificateholders shall
have been obtained.
(h) Guarantees. Except as provided in its
Certificate of Incorporation and by-laws, the
Depositor will not become or remain liable,
directly or contingently, in connection with
any indebtedness or other liability of any
other Person, whether by guarantee,
endorsement (other than endorsements of
negotiable instruments for deposit or
collection in the ordinary course of
business), agreement to purchase, agreement to
supply or advance funds, or otherwise, except
in connection with Permitted Transactions.
(i) Investments. Except as provided in its
Certificate of Incorporation or by-laws, or
the Receivables Purchase Agreement, the
Depositor will not make or suffer to exist any
loans or advances to, or extend any credit to,
or make any investments (by way of transfer of
property, contributions to capital, purchase
of stock or securities or evidences of
indebtedness, acquisition of the business or
assets, or otherwise) in, any Affiliate
provided, however, that the Depositor shall
not be prohibited under this Section 2.05(i)
from declaring or paying any dividends in
respect of its common stock or repurchasing
Receivables pursuant to Section 2.04(a).
(j) Stock; Merger. The Depositor will not
(i) sell any shares of any class of its
capital stock to any Person (other than the
Seller) or enter into any transaction of
merger or consolidation unless (A) the
surviving Person of such merger or
consolidation assumes all of the Depositor's
obligations under this Agreement, each
Supplement, the Related Documents and the
Certificates, (B) the Depositor shall have
received the Consent of Certificateholders
with respect to such transaction, which
Consent shall not be unreasonably withheld,
and the Rating Agency Condition shall have
been satisfied and (C) such merger or
consolidation does not conflict with any
provisions of the certificate of incorporation
of the Depositor, or (ii) terminate, liquidate
or dissolve itself (or suffer any termination,
liquidation or dissolution), or (iii) acquire
or be acquired by any Person (other than as
permitted pursuant to clause (i) above), or
(iv) otherwise make (or suffer) any material
change in the organization of or method of
conducting its business.
(k) Agreements. The Depositor will not
become a party to, or permit any of its
properties to be bound by, any indenture,
mortgage, instrument, contract, agreement,
lease or other undertaking, except this
Agreement, the Related Documents and any
document relating to a Permitted Transaction,
or cancel, terminate, amend, supplement,
modify or waive any of the provisions of the
Receivables Purchase Agreement or any of the
other Related Documents or request, consent or
agree to or suffer to exist or permit any such
cancellation, termination, amendment,
supplement, modification or waiver.
(l) Separate Business. Other than with
respect to In-Store Payments, the Depositor
will not permit its assets to be commingled
with those of the Seller, and the Depositor
shall maintain separate corporate records and
books of account from those of the Seller,
shall observe all corporate formalities, and
will not amend or modify its certificate of
incorporation unless the Rating Agency
Condition shall have been satisfied. The
Depositor will conduct its business and all
business correspondence solely in its own name
and will cause the Seller to conduct its
business solely in its own name so as not to
mislead others as to the identity of the
entity with which those others are concerned.
The Depositor will provide for its own
operating expenses and liabilities from its
own funds, except that the initial expenses of
the Depositor may be paid by the Seller. The
Depositor will not hold itself out, or permit
itself to be held out, as having agreed to
pay, or as being liable for, the debts of the
Seller. The Depositor will cause the Seller
not to hold itself out, or permit itself to be
held out, as having agreed to pay, or as being
liable for, the debts of the Depositor. The
Depositor will be operated such that it would
not be substantively consolidated in the
bankruptcy estate of the Seller and its
separate existence disregarded in the event of
the Seller's bankruptcy. The financial
statements of the Seller will reflect the
separate corporate existence of the Depositor.
The Depositor will maintain two independent
directors as provided in its Certificate of
Incorporation.
(m) Performance of Obligations. The
Depositor punctually will perform and observe
all of its obligations and agreements
contained in the Receivables Purchase
Agreement. If any officer of the Depositor
has knowledge of the occurrence of a breach or
default by the Seller or the Depositor under
the Receivables Purchase Agreement, the
Depositor promptly will notify the Trustee of
such breach or default, and the Trustee will
provide copies of such notice to the Rating
Agencies. Any such notice will specify the
action, if any, the Depositor is taking in
respect of such breach or default. Without
the Trustee's prior consent, the Depositor may
not waive any material breach or default
under, or amend, the Receivables Purchase
Agreement.
(n) Servicer Default. If any officer of the
Depositor has knowledge of a Servicer Default,
the Depositor promptly will notify the Trustee
in writing of such Servicer Default, and the
Trustee shall provide copies of such notice to
the Rating Agencies.
Section 2.06. Removal of Accounts.
(a) On each Determination Date on which the
Excess Balance Test has been satisfied, the
Depositor shall have the right to remove from
the Trust all of the Trust's right, title and
interest in, to and under the Receivables then
existing and thereafter created, all monies
due, or to become due, and all amounts
received with respect thereto and all proceeds
thereof in or with respect to those Accounts
randomly designated by the Depositor (the
"Removed Accounts") in an aggregate amount not
greater than the amount by which the related
Series Pool Balance exceeds 105% of the sum of
the related Required Series Pool Balance and
the Required Exchangeable Certificate Amount.
(b) Such removal of Removed Accounts shall
not be effective unless the following are
satisfied prior to the proposed effective date
of such removal (the "Removal Date"):
(i) on or before the twentieth (20th)
Business Day prior to the Removal Date (the
"Removal Notice Date"), the Depositor shall
give the Certificateholders, the Trustee, each
Rating Agency and the Servicer written notice
of the proposed action, which shall specify
for each Removed Account, (i) its account
number, (ii) the aggregate amount of
Receivables outstanding in such Removed
Account on the Removal Notice Date, and (iii)
the aggregate amount of Principal Receivables
in such Removed Account on the Removal Notice
Date;
(ii) the Depositor shall have delivered to the
Trustee an Officer's Certificate substantially
in the form of Exhibit G hereto; and the
Trustee may conclusively rely on such
certificate, shall have no duty to make
inquiries with regard to the matters set forth
therein and shall incur no liability in so
relying; and
(iii) the Rating Agency Condition shall
have been satisfied.
(c) Upon satisfaction of the conditions set
forth in subsections 2.06(a) and (b), the
Trustee shall execute and deliver a written
reassignment substantially in the form of
Exhibit E hereto (the "Reassignment") to the
Depositor, the Depositor's Interest will be
reduced by an amount equal to the Purchase
Price, and the Receivables from the Removed
Accounts shall no longer constitute a part of
the Trust as of the related Removal Date.
(d) Notwithstanding the foregoing, upon the
effective date of any rules promulgated by
FASB that would preclude sale accounting
treatment for the conveyance of the
Receivables for FASB 125 purposes because of
the existence or continued effectiveness of
the removal provisions of this Section 2.06,
then the Depositor shall no longer have the
right to so remove accounts and the provisions
of this Section 2.06 shall no longer be in
effect.
Section 2.07. Discount Option.
(a) The Depositor may, at any time, upon
thirty (30) days' prior written notice to the
Servicer, the Trustee and each Rating Agency,
designate a fixed percentage, not to exceed
10%, of the amount of Collections in respect
of Special Interest Receivables arising in the
Accounts on and after the date of such
designation that otherwise would be treated as
Principal Collections to be treated as Finance
Charge Collections. Such designation will
become effective on the date specified therein
only if the Depositor shall have delivered to
the Trustee an Officer's Certificate, dated
the date of such designation, to the effect
that the Depositor reasonably believes that
such designation will not result in an Early
Amortization Event or have a material adverse
effect on the Certificateholders.
(b) The Depositor may, at any time, upon
thirty (30) days prior written notice to the
Servicer, the Trustee and each Rating Agency,
designate a percentage (the "Discount Rate")
to be subtracted from the price at which
Receivables are conveyed to the Trust after a
specified date; provided that in the event
that the Discount Rate exceeds 2.5%, the
Rating Agency Condition shall have been
satisfied; provided, further, that in the
event the Discount Rate exceeds 3.0%, the
Consent of Certificateholders shall also have
been obtained. The Depositor may give any
number of such written notifications during
the life of the Trust but only one such
notification with respect to any Collection
Period. Such notification shall be given
prior to the first day of such Collection
Period, and shall be effective as of the first
day of such Collection Period.
(c) In addition to any Discount Rate which
may be designated pursuant to subsection (b)
above, the following shall apply: (i) the
Discount Rate shall be 1.0% with respect to
Receivables conveyed to the Trust on the
initial Closing Date and thereafter until such
time as the Depositor shall notify the Trustee
in writing of a new Discount Rate, in
accordance with the terms of this Section
2.07, and (ii) during July and November of
each year, the Discount Rate may, at the
Depositor's option, increase an additional
1.5% to take into account the effects of
reductions in the Pool Balance resulting from
the Seller's "Secret Sales" promotional
campaigns, unless and until the Servicer shall
have given written notice to each of the
Trustee, the Depositor and the Rating Agencies
that the Seller has discontinued its "Secret
Sales" promotional campaigns and (iii) Special
Interest Receivables conveyed to the Trust
shall be conveyed at a Discount Rate not to
exceed 10%. The Depositor hereby confirms
that no "Secret Sales" campaign or similar
promotional campaign shall have an adverse
effect on the Investor Certificates of any
Series that is not compensated for by (x) the
1.5% automatic increase in the Discount Rate,
and (y) the payments, if any, required to be
made as a result thereof pursuant to Section
3.09(a) hereof.
Section 2.08. Block Period; Supplemental
Accounts.
(a) On any Determination Date on which the
Excess Balance Test is satisfied, the
Depositor may, at its option, discontinue,
indefinitely or for a specified period (the
"Block Period"), inclusion of Charge Accounts
originated by the Seller during such Block
Period as Accounts. The Depositor may, at its
option, terminate a Block Period, upon which
termination all Receivables in all Accounts
shall thereafter be conveyed to the Trust
pursuant to Section 2.01 hereof.
(b) In connection with the termination of any
Block Period, the Depositor may designate any
Charge Account that was originated by the
Seller during such Block Period for inclusion
as Supplemental Accounts.
(c) If on any Determination Date during any
Block Period the Required Series Pool Balance
for any Series (or the equivalent for any
other Series) is greater than the Series Pool
Balance for such Series the Depositor shall
randomly designate additional Charge Accounts
for inclusion as Supplemental Accounts in an
amount sufficient to increase such Series Pool
Balance until the Series Pool Balance equals
the Required Series Pool Balance for such
Series. The Block Period shall be deemed to
have terminated for such designated Charge
Accounts for so long as the Depositor is
required to designate additional Charge
Accounts pursuant to this subsection.
Receivables from such Supplemental Accounts
shall be transferred to the Trust on or before
the fifth (5th) Business Day following such
Determination Date.
(d) The commencement or termination of a
Block Period, or the designation of
Supplemental Accounts, shall not be effective,
and no transfer pursuant to Section 2.08(c)
effected, unless the following are satisfied
prior to the proposed effective date of any
such action:
(i) on or before (A) the thirtieth (30th)
Business Day prior to the commencement of any
Block Period, (B) the third (3rd) Business Day
prior to the termination of a Block Period, or
(C) the fifth (5th) Business Day prior to the
proposed effective date with respect to
additions pursuant to Section 2.08(b) or (c)
(as applicable, the "Notice Date"), the
Depositor shall give the Trustee, each Rating
Agency and the Servicer written notice of the
proposed action, which in the case of (x) the
commencement of a Block Period shall set forth
in reasonable detail computations evidencing
satisfaction of the Excess Balance Test, and
(y) additions pursuant to Section 2.08(b) or
(c) shall specify the proposed effective date
of the action (the "Supplemental Addition
Date") and, for each Charge Account to be
designated as a Supplemental Account, (I) its
account number, (II) the aggregate amount of
Receivables outstanding in such Supplemental
Account on the Notice Date and (III) the
aggregate amount of Principal Receivables in
such Supplemental Account on the Notice Date;
(ii) in the case of additions pursuant to
Section 2.08(b) or (c), the Depositor shall
deliver to the Trustee an Officer's
Certificate substantially in the form of
Exhibit F hereto; and
(iii) the Rating Agency Condition shall
have been satisfied.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01. Acceptance of Appointment and
Other Matters Relating to the Servicer.
(a) The Servicer shall service and administer
the Receivables, collect payments due under
the Receivables and charge-off as
uncollectible Receivables, all in accordance
with procedures that are customary and usual
in the industry for servicing receivables
comparable to the Receivables and to the
extent not inconsistent with the foregoing,
exercise the same degree of skill and care as
that used in servicing receivables for its own
account. The Servicer shall have full power
and authority acting alone or through any
party properly designated hereunder, to do any
and all of the foregoing in connection with
such servicing and administration which it may
deem necessary or desirable. Without limiting
the generality of the foregoing and subject to
Section 10.01 hereof, the Servicer is hereby
authorized and empowered, unless such power
and authority is revoked by the Trustee on
account of the occurrence of a Servicer
Default:
(i) to instruct the Trustee to make
withdrawals and payments from the Collection
Account and any Series Account as set forth in
this Agreement and, with respect to any Series
Account, the related Supplement;
(ii) to instruct the Trustee to take any
action required or permitted under any
Enhancement Agreement;
(iii) to execute and deliver, on behalf of
the Trust for the benefit of the
Beneficiaries, any and all instruments of
satisfaction or cancellation, or of partial or
full release or discharge, and all other
comparable instruments, with respect to the
Receivables and, after the delinquency of any
Receivable and to the extent permitted under
and in compliance with applicable Requirements
of Law, to commence enforcement proceedings
with respect to such Receivables;
(iv) to make any filings, reports, notices,
applications, registrations with, and seek any
consents or authorizations from, the
Securities and Exchange Commission and any
State securities authority on behalf of the
Trust as may be necessary or advisable to
comply with any Federal or State securities
laws or reporting requirements; and
(v) to delegate certain of its servicing,
collection, enforcement and administrative
duties hereunder with respect to the Accounts
and the Receivables to any Person who agrees
to conduct such duties in accordance with the
Financial Guidelines and this Agreement;
provided, however, that the Servicer shall
notify the Trustee, the Rating Agencies and
any Enhancement Providers in writing of any
such delegation of its duties which is not in
the ordinary course of its business, that no
delegation will relieve the Servicer of its
liability and responsibility with respect to
such duties and that the Rating Agency
Condition shall have been satisfied and the
Consent of Certificateholders obtained. With
respect to any such delegation the Trustee
shall execute any limited powers of attorney
and other documents prepared by the Servicer
which are reasonably necessary or appropriate
to enable the Servicer to carry out its
servicing and administrative duties hereunder.
(b) In the event that the Depositor is unable
for any reason to transfer Receivables to the
Trust in accordance with the provisions of
this Agreement (including by reason of the
application of the provisions of Section 9.02
hereof or any court of competent jurisdiction
ordering that the Depositor not transfer any
additional Principal Receivables to the Trust)
then, in any such event, the Servicer agrees
(i) to give prompt written notice thereof to
the Trustee, any Enhancement Providers and
each Rating Agency and (ii) that it shall
allocate, after the occurrence of any such
event, payments on each Account with respect
to the principal balance of such Account first
to the oldest principal balance of such
Account, and to have such payments applied as
Collections in accordance with Section 4.02
hereof. The parties hereto agree that Finance
Charge Receivables, whenever created, accrued
in respect of Principal Receivables which have
been conveyed to the Trust shall continue to
be a part of the Trust notwithstanding any
cessation of the transfer of additional
Principal Receivables to the Trust and
Collections with respect thereto shall
continue to be allocated and paid in
accordance with the terms of this Agreement.
(c) The Servicer shall not, and any Successor
Servicer shall not be obligated to, use
separate servicing procedures, offices,
employees or accounts for servicing the
Receivables from the procedures, offices,
employees and accounts used by the Servicer in
connection with servicing other receivables
comparable to the Receivables.
(d) The Servicer shall comply with and
perform its servicing obligations with respect
to the Receivables in accordance with the
Charge Account Agreements relating to the
Accounts and the Financial Guidelines, except
insofar as any failure to so comply or perform
would not materially and adversely affect the
rights of the Trust or any of the
Beneficiaries. Subject to compliance with all
Requirements of Law, the Servicer (or if it is
not then acting as Servicer, the Seller) may
change the terms and provisions of the Charge
Account Agreements or the Financial Guidelines
in any respect (including the calculation of
the amount or the timing of charge-offs and
the rate of the finance charge, if any
assessed thereon), only if (i) as a result of
such change, in the reasonable judgment of the
Servicer (or the Seller, as the case may be)
no Early Amortization Event will occur, or
(ii) the Servicer (or the Seller, as the case
may be) shall reasonably determine that such
change is necessary in order to satisfy any
Requirement of Law.
Section 3.02. Servicing Compensation.
(a) The Monthly Servicing Fee with respect to
each outstanding Series 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 for such Series and the first
Distribution Date on which the Invested Amount
for such Series is zero. In no event shall
the Trust, the Trustee, the Certificateholders
or the Holder of any Subordinated Certificate
be liable for any Monthly Servicing Fee or
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 the
Supplements.
(b) The Servicer's expenses include the
amounts due to the Trustee pursuant to Section
11.05 hereof and the reasonable fees and
disbursements of independent accountants and
all other expenses incurred by the Servicer in
connection with its activities hereunder, and
including all other fees and expenses of the
Trust not expressly stated herein to be for
the account of the Certificateholders but not
including any federal, state or local income
or franchise taxes, if any, of the Trust or
the Certificateholders. The Servicer shall be
required to pay such expenses for its own
account, and shall not be entitled to any
payment therefor other than the Servicing Fee.
The Servicer will be solely responsible for
all fees and expenses incurred by or on behalf
of the Servicer in connection herewith, and
the Servicer will not be entitled to any fee
or other payment from, or claim on, any of the
Trust Assets (other than the Servicing Fee).
Section 3.03. Representations, Warranties and
Covenants of the Servicer.
(a) The Seller as Servicer hereby makes, and
any Successor Servicer by its appointment
hereunder shall make, on each Closing Date
(and on the date of any such appointment) the
following representations, warranties and
covenants, on which the Trustee has relied in
accepting the Receivables in trust and in
authenticating the Certificates:
(i) Organization and Good Standing. Such
party is a corporation or other Person duly
organized, validly existing and in good
standing under the applicable laws of the
state of its organization and has full power,
authority and legal rights to own its
properties and conduct its receivable
servicing business as such properties are
presently owned and as such business is
presently conducted, and to execute, deliver
and perform its obligations under this
Agreement and any Supplement.
(ii) Due Qualification. Such party is duly
qualified to do business and is in good
standing as a foreign Person (or is exempt
from such requirements) and has obtained all
necessary licenses and approvals in each
jurisdiction in which the servicing of the
Receivables as required by this Agreement
requires such qualification except where the
failure to so qualify or be in good standing
or obtain licenses or approvals would not have
a material adverse effect on its ability to
perform its obligations hereunder.
(iii) Due Authorization. The execution,
delivery, and performance of this Agreement
and any applicable Supplement has been duly
authorized by such party by all necessary
action on the part thereof.
(iv) Binding Obligation. This Agreement and
any Supplement have been duly executed and
delivered by such party, and each constitutes
a legal, valid and binding obligation of such
party, enforceable in accordance with its
terms, except as enforceability may be limited
by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar
laws now or hereinafter in effect, affecting
the enforcement of creditors' rights in
general and except as such enforceability may
be limited by general principles of equity
(whether considered in a proceeding at law or
in equity) and the availability of equitable
remedies.
(v) No Violation. The execution and delivery
of this Agreement and any Supplement by such
party, the performance of the transactions
contemplated by this Agreement and any
Supplement and the fulfillment of the terms
hereof and thereof applicable to such party
will not conflict with, violate, result in any
breach of any of the terms and provisions of,
or constitute (with or without notice or lapse
of time or both) a default under, any
Requirement of Law applicable to such party or
any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which
such party is a party or by which it is bound.
(vi) No Proceedings. There are no proceedings
or investigations, pending or, to the best
knowledge of such party, threatened against
such party before any Governmental Authority
(i) seeking to prevent the issuance of the
Certificates or the consummation of any of the
transactions contemplated by this Agreement or
any Supplement, (ii) seeking any determination
or ruling that, in the reasonable judgment of
such party, would affect the performance by
such party of its obligations under this
Agreement or the applicable Supplement, or
(iii) seeking any determination or ruling that
would materially and adversely affect the
validity or enforceability of this Agreement
or any Supplement.
(vii) Compliance with Requirements of Law.
Such party shall duly satisfy all obligations
on its part to be fulfilled under or in
connection with the Receivables and the
Accounts, will maintain in effect all
qualifications required under Requirements of
Law in order to service properly the
Receivables and the Accounts, and to conduct
its business generally, and will comply with
all Requirements of Law in connection with
servicing the Receivables and the Accounts,
and the conduct of its business generally, the
failure to comply with which would have a
materially adverse effect on the interests of
the Beneficiaries.
(viii) No Rescission or Cancellation. Such
party shall not reschedule, revise, defer,
cancel or settle payments due on any
Receivable, except as expressly provided
herein or in accordance with the Financial
Guidelines and sound industry practices for
servicing receivables comparable to the
Receivables.
(ix) Protection of Beneficiaries Rights. Such
party shall take no action, nor omit to take
any action, which would materially impair the
rights of Beneficiaries in the Receivables.
(x) Servicer Accounts.
(A) Schedule III hereto contains a true and
complete list of all accounts maintained for
the purpose of receiving Collections (each, a
"Local Deposit Account"). In the event that
any Local Deposit Account shall be held in the
name of a party other than the Trustee, on or
prior to the initial Closing Date, such party
shall, with respect to each such Local Deposit
Account, (i) cause such Local Deposit Account
to be transferred into the name of the Trustee
and enter into a Deposit Account Agreement in
respect of such account, or (ii) terminate
such Local Deposit Account.
(B) Such party shall not establish any new
Local Deposit Accounts unless such party shall
have first given notice to the Trustee of such
new Local Deposit Account (which notice shall
constitute an amendment of Schedule III
hereto) and entered into a Deposit Account
Agreement in respect of such account.
(C) Each Local Deposit Account shall be in
the name of the Trustee and bear a designation
clearly indicating that the funds deposited
therein are held solely for the benefit of the
Beneficiaries.
(D) On or before the date hereof, such party
shall have entered into an agreement (a
"Collection Servicer Agreement") with a
Collection Servicer who shall act solely at
the instruction of the Trustee. Each such
Collection Servicer Agreement shall provide
that each day Collections are received in the
Dedicated Zip Code, such party shall cause one
of its employees (who shall at all times be
covered by a fidelity bond and errors and
omissions policy substantially similar to that
referred to in Section 3.10 hereof) to deliver
the contents thereof to the Servicer for
processing, and upon completion of such
processing to deposit all such Collections
into a Local Deposit Account. The Collection
Servicer Agreement with Union Bank of
California, dated March 25, 1994 between the
Servicer and Union Bank of California, is
hereby preapproved. In the event of the
termination thereof, the Servicer shall
forthwith establish a successor Collection
Servicer Agreement. Any successor,
replacement or additional Collection Servicer
Agreement shall be in form and substance
satisfactory to the Certificateholders as
evidenced by a Consent of the
Certificateholders.
(E) On or before the date hereof, such party
shall cause its Dedicated Zip Code to be
transferred into the name of the Trustee. The
Servicer shall cause the terms of each Charge
Account to provide that all payments made by
mail shall be addressed to the Servicer at the
Dedicated Zip Code. The Servicer shall not
change said address or payment instructions
without the Consent of Certificateholders, not
to be unreasonably withheld.
(xi) Negative Pledge. Except for the
conveyances under the Receivables Purchase
Agreement and under this Agreement, the
Servicer will not sell, pledge, assign or
transfer to any other Person, or grant,
create, incur, assume or suffer to exist any
Lien (other than Permitted Liens) on, any
Receivable, whether now existing or hereafter
created, or any interest therein, and the
Servicer shall defend the right, title and
interest of the Trust in, to and under the
Receivables whether now existing or hereafter
created, against all claims of third parties
claiming through or under the Depositor or the
Servicer.
(xii) Receivables Not To Be Evidenced by
Promissory Notes. Except in connection with
its enforcement or collection of a Receivable,
the Servicer will take no action to cause any
Receivable to be evidenced by an instrument or
chattel paper (as defined in the UCC as in
effect in the State of California).
(xiii) All Consents Required. All
appraisals, authorizations, consents, orders,
approvals or other actions of any Person or of
any governmental body or official required in
connection with the execution and delivery by
the Servicer of this Agreement, each
Supplement and the Related Documents to which
it is a party, the performance by the Servicer
of the transactions contemplated by this
Agreement, each Supplement and the Related
Documents to which it is a party, and the
fulfillment by the Servicer of the terms
hereof and thereof, have been obtained.
(b) Notice of Breach. The representations
and warranties set forth in this Section 3.03
shall survive the transfer and assignment of
the Receivables to the Trust and the issuance
of the Certificates. Upon discovery by the
Depositor, the Servicer or upon a Responsible
Officer of the Trustee having actual knowledge
of a breach of any of the foregoing
representations and warranties, the party
discovering such breach shall give prompt
written notice thereof to the other parties
and any Enhancement Providers. The Trustee
shall give written notice to the Rating
Agencies and to the Certificateholders
promptly upon receipt of such notice.
(c) Purchase. In the event the Depositor or
the Servicer receives written notice from the
Trustee or any Enhancement Provider that any
covenant under clause (vii), (viii) or (ix) of
subsection (a) above has not been complied
with and such noncompliance has not been cured
within thirty (30) days thereafter (or such
longer period as the Trustee may permit) and
has a material adverse effect on the interests
of the Certificateholders then, unless a
Liquidation Event has occurred, the Servicer
shall purchase such Receivable or if such non-
compliance is with respect to any Account, all
Receivables in such Account, and the proceeds
therefrom shall be applied in accordance with
the terms of Article IV hereof.
(d) Payment of Purchase Price; Etc. Upon
each payment by the Servicer of the Purchase
Price for the Receivables to be purchased from
the Trust pursuant to subsection (c) above,
the Trust shall automatically and without
further action be deemed to sell, transfer,
assign, set over and otherwise convey to the
Servicer, without recourse, representation or
warranty, all the right, title and interest of
the Trust in, to and under such Receivables
and all monies due or to become due with
respect thereto and all proceeds thereof. The
Trustee shall execute such documents and
instruments of transfer or assignment and take
such other actions as shall reasonably be
requested by the Servicer to effect the
conveyance of any such Receivables pursuant to
this Section 3.03. The obligation of the
Servicer to purchase such Receivables and to
make the deposits required to be made to the
Collection Account as provided in subsection
(a) above, shall constitute the sole remedy
respecting the event giving rise to such
obligation available to the Certificateholders
(or the Trustee on behalf of the
Certificateholders).
Section 3.04. Reports and Records for the
Trustee.
(a) Records. Upon reasonable prior notice by
the Trustee or a Certificateholders'
Representative, the Servicer shall make
available at an office of the Servicer (or
other location designated by the Servicer if
such records are not accessible by the
Servicer at an office of the Servicer)
selected by the Servicer for inspection by the
Trustee or its agent and a Certificateholders'
Representative on a Business Day during the
Servicer's normal business hours a record
setting forth (i) the Collections on each
Receivable and (ii) the amount of Receivables,
in each case for the period preceding the date
of the inspection, or such shorter period as
may be reasonably requested by the Trustee.
The Servicer shall, at all times, maintain its
computer files with respect to the Receivables
in such a manner so that the Receivables may
be specifically identified and, upon
reasonable prior request of the Trustee or a
Certificateholders' Representative, shall make
available to the Trustee or its agent and a
Certificateholders' Representative, at an
office of the Servicer (or other location
designated by the Servicer if such computer
files are not located at an office of the
Servicer) selected by the Servicer, on any
Business Day of the Servicer during the
Servicer's normal business hours any computer
programs necessary to make such
identification.
(b) Distribution Date Statement. On each
Determination Date, the Servicer shall, prior
to 9:00 a.m. (Los Angeles time) on such day,
deliver to the Trustee, the Certificateholders
and the Rating Agencies the Distribution Date
Statement for the related Collection Period
substantially in the form attached to the
related Series Supplement. The Trustee shall
be under no duty to recalculate, verify or
recompute the information supplied to it under
this Section 3.04 or such other matters as are
set forth in any Distribution Date Statement.
Section 3.05. Annual Servicer's Certificate.
The Servicer will deliver to the Rating
Agencies, Certificateholders, the Trustee and
any Enhancement Providers on or before April
15 of each calendar year, beginning with April
15, 2000, an Officer's Certificate
substantially in the form of Exhibit C hereto
stating that (a) a review of the activities of
the Servicer during the preceding calendar
year and of its performance under this
Agreement was made under the supervision of
the officer signing such certificate and (b)
to the best of such officer's knowledge, based
on such review, the Servicer has performed in
all material respects its obligations under
this Agreement throughout such year, or, if
there has been a default in the performance of
any such obligation, specifying each such
default known to such officer and the nature
and status thereof. A copy of such
certificate may be obtained by any
Certificateholder by a request in writing to
the Trustee addressed to the Corporate Trust
Office.
Section 3.06. Independent Public Accountants'
Servicing Report.
(a) On or before the fourth monthly
anniversary of the initial Closing Date, and
thereafter on or before the 120th day
following the end of each of the Servicer's
fiscal years, beginning with the fiscal year
ending in 2000, the Servicer shall cause a
firm of Independent Certified Public
Accountants (who may also render other
services to the Servicer or the Depositor) to
furnish a report to the Trustee, any
Enhancement Provider and each Rating Agency,
to the effect that such firm has made a study
and evaluation in accordance with generally
accepted auditing standards of the Servicer's
internal accounting controls relative to the
servicing of Accounts under this Agreement,
and that, on the basis of such examination,
such firm is of the opinion (assuming the
accuracy of any reports generated by the
Servicer's third party agents) that the system
of internal accounting controls in effect on
the last day of the first monthly anniversary
of the initial Closing Date or such fiscal
year, as the case may be, relating to
servicing procedures performed by the
Servicer, taken as a whole, provided
reasonable assurance that such internal
control system was sufficient for the
prevention and detection of errors and
irregularities and that such servicing was
conducted in compliance with such provisions
of this Agreement of which such accountants
can reasonably be expected to possess adequate
knowledge of the subject matter, which are
susceptible of positive assurance by such
accountants and for which their professional
competence is relevant, except for such
exceptions as they believe to be immaterial
and such other exceptions as shall be set
forth in such statement. A copy of each such
report will be sent to each Certificateholder
and a copy of the initial such report shall be
sent to each Rating Agency by the Servicer.
In the event such firm requires the Trustee to
agree to the procedures performed by such
firm, the Servicer shall direct the Trustee in
writing to so agree; it being understood and
agreed that the Trustee will deliver such
letter of agreement in conclusive reliance
upon the direction of the Servicer, and the
Trustee makes no independent inquiry or
investigation as to, and shall have no
obligation or liability in respect of, the
sufficiency, validity or correctness of such
procedures.
(b) Within 120 days after each fiscal year
for the Servicer (commencing with the year
ended January 30, 2000), the Servicer shall
deliver to the Trustee and to each Rating
Agency, an agreed upon procedures report
prepared by accountants independent of the
Servicer solely to assist in evaluating
compliance with the requirement set forth in
Section 3.04(b) hereof during the preceding
12-month period ended on the Date of
Determination immediately following the end of
the fiscal year of the Servicer (or other
applicable period in the case of the first
such report or letter) to the effect that such
accountants have reviewed certain records and
documents relating to the servicing of the
Accounts and Receivables under the Agreement
and any Supplement (using procedures specified
in such report) and as a result of such
review, and in connection with such
procedures, they are reporting such
exceptions, if material, as shall be set forth
therein. For the purpose of such report,
exceptions shall be considered material when
either individually or in the aggregate such
exceptions exceed $250,000. Such report or
letter shall also indicate that the firm is
independent with respect to the Servicer and
the Depositor within the meaning of the Code
of Professional Ethics of the American
Institute of Certified Public Accountants. In
the event such accountants require the Trustee
to agree to the procedures performed by such
firm, the Servicer shall direct the Trustee in
writing to so agree; it being understood and
agreed that the Trustee will deliver such
letter of agreement in conclusive reliance
upon the direction of the Servicer, and the
Trustee makes no independent inquiry or
investigation as to, and shall have no
obligation or liability in respect of, the
sufficiency, validity or correctness of such
procedures.
(c) To the extent the Servicer or Successor
Servicer is a privately-held entity and is no
longer subject to the periodic reporting
requirements of the Securities Exchange Act of
1934, as amended, within 120 days after the
close of each fiscal year of the Servicer or
Successor Servicer, if applicable, the
Servicer shall deliver to the Holders of
Investor Certificates audited financial
statements of the Servicer as at the end of
such fiscal year and for the fiscal year then
ended, in each case certified by a firm of
Independent Certified Public Accountants. The
Servicer is currently a publicly-held entity
subject to the periodic reporting requirements
of the Securities Exchange Act of 1934, as
amended, and the Servicer or Successor
Servicer will give prompt notice to the
Trustee of any change in such status.
Section 3.07. Tax Treatment. The Depositor
has structured this Agreement 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 this Section 3.07.
Furthermore, the parties hereto agree that the
Trust shall be treated as a security device
only, and shall not file tax returns or obtain
an employer identification number on behalf of
the Trust.
Section 3.08. Notices to the Seller. In the
event the Seller is no longer acting as
Servicer, any Successor Servicer appointed
pursuant to Section 10.02 hereof shall deliver
or make available to the Seller, as the case
may be, each certificate and report required
to be prepared forwarded or delivered
thereafter pursuant to Section 3.04, Section
3.05 or Section 3.06 hereof.
Section 3.09. Adjustments.
(a) If the Servicer adjusts downward the
amount of any Principal Receivable because of
a rebate, refund, credit adjustment or billing
error to an Obligor, or because such
Receivable was created in respect of
merchandise which was refused or returned by
an Obligor, or if the Servicer otherwise
adjusts the amount of any Receivable without
receiving Collections therefor or without
charging off such amount as uncollectible in
accordance with the Servicer's customary and
usual procedures for the servicing of
comparable charge account receivables, then,
in any such case, the Pool Balance will be
automatically increased or reduced, as
appropriate, by the amount of the adjustment.
Furthermore, if following such an adjustment
the Pool Balance would be less than the
Required Pool Balance on the immediately
preceding Determination Date (after giving
effect to the allocations, distributions,
withdrawals and deposits to be made on the
Distribution Date immediately following such
Determination Date) then, unless a Liquidation
Event has occurred, the Depositor shall be
required to pay an amount equal to such
deficiency (up to the amount of such
adjustment) into the Collection Account on the
Business Day on which such adjustment or
reduction occurs (each such payment an
Adjustment Payment).
(b) If (i) the Servicer makes a deposit into
the Collection Account in respect of a
Collection of a Receivable and such Collection
was received by the Servicer in the form of a
check which is not honored for any reason or
(ii) the Servicer makes a mistake with respect
to the amount of any Collection and deposits
an amount that is less than or more than the
actual amount of such Collection, the Servicer
shall appropriately adjust the amount
subsequently deposited into the Collection
Account to reflect such dishonored check or
mistake. Any Receivable in respect of which a
dishonored check is received shall be deemed
not to have been paid.
Section 3.10. Fidelity Bond and Errors and
Omissions Insurance. The Servicer shall
maintain at all times prior to the termination
of the Trust, at its own expense, a blanket
fidelity bond and an errors and omissions
insurance policy, with broad coverage with
responsible companies on all Bondable Persons.
Any such fidelity bond and errors and
omissions insurance shall protect and insure
the Servicer against losses, including
forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such
persons and shall be maintained in a form and
amount that would meet the requirements of
prudent institutional consumer credit card
servicers. No provision of this Section 3.10
requiring such fidelity bond and errors and
omissions insurance shall diminish or relieve
the Servicer from its duties and obligations
as set forth in this Agreement. The Servicer
shall be deemed on any date to have complied
with this provision if one of its respective
Affiliates has on such date such fidelity bond
and errors and omissions policy coverage and,
by the terms of such fidelity bond and errors
and omission policy, the coverage afforded
thereunder extends to the Servicer in the form
and amount described above in this Section
3.10. The Servicer shall cause each and every
sub-servicer for it to maintain a policy of
insurance covering errors and omissions and a
fidelity bond which would meet such
requirements. Upon request of the Trustee,
the Servicer shall cause to be delivered to
the Trustee a certification evidencing
coverage under such fidelity bond and
insurance policy. Any such fidelity bond or
insurance policy shall not be cancelled or
modified in a materially adverse manner
without ten (10) days' prior written notice to
the Trustee and the Rating Agencies.
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
SECTION 4.01. Rights of Certificateholders.
The Investor Certificates shall represent
fractional undivided interests in the Trust
Assets, which, with respect to each Series,
shall consist of the right to receive, to the
extent necessary to make the required payments
with respect to the Investor Certificates of
such Series at the times and in the amounts
specified in the related Supplement, the
portion of Collections allocable to the
Holders of Investor Certificates of such
Series pursuant to this Agreement and such
Supplement, funds on deposit in the Collection
Account allocable to the Holders of Investor
Certificates of such Series pursuant to this
Agreement and such Supplement, funds on
deposit in any related Series Account and
funds available pursuant to any related
Enhancement (collectively, with respect to all
Series, the "Investors' Interest"); provided,
that the Investor Certificates of one Series
or Class shall not have any interest in any
Series Account created, or Enhancement
provided, for the benefit of any other Series
or Class. The Exchangeable Certificate shall
represent the ownership interest in the
remainder of the Trust Assets not allocated to
the Investors' Interest (or to any
Subordinated Certificate) pursuant to this
Agreement or any Supplement, including the
right to receive the Collections with respect
to the Receivables and other amounts at the
times and in the amounts specified in this
Agreement or in any Supplement (collectively,
the "Depositor Interest"). Each Subordinated
Certificate shall represent only such rights
and interests as shall be specified in any
Supplement relating thereto.
Section 4.02. Establishment of the Collection
Account. The Servicer, for the benefit of the
Beneficiaries, shall cause to be established
and maintained in the name of the Trust an
Eligible Deposit Account bearing a designation
clearly indicating that the funds deposited
therein are held for the benefit of the
Beneficiaries (the "Collection Account"). The
Trustee shall possess all right, title and
interest in all funds from time to time on
deposit in, and all Eligible Investments
credited to, the Collection Account and in all
proceeds thereof. The Collection Account
shall be under the sole dominion and control
of the Trustee for the benefit of the
Beneficiaries. If, at any time, the
Collection Account ceases to be an Eligible
Deposit Account, the Servicer shall establish
a substitute Eligible Deposit Account as the
Collection Account, instruct the Trustee to
transfer any cash and/or any Eligible
Investments to such new Collection Account
and, from the date any such substitute account
is established, such account shall be the
Collection Account. Pursuant to the authority
granted to the Servicer in Section 3.01
hereof, the Servicer shall have the power,
revocable by the Trustee, to instruct the
Trustee to make withdrawals and payments from
the Collection Account for the purposes of
carrying out the duties of the Servicer or the
Trustee as specified in this Agreement.
All Eligible Investments shall be
held by the Trustee for the benefit of the
Beneficiaries. Funds on deposit in the
Collection Account shall, at the written
direction of the Servicer, be invested by the
Trustee solely in Eligible Investments that
will mature so that such funds will be
available at the close of business on or
before the next Business Day. Each Business
Day, all interest and other investment income
(net of losses and investment expenses) earned
on funds on deposit in the Collection Account
shall be released to the Depositor. Schedule
II, which is hereby incorporated into and made
part of this Agreement, identifies the
Collection Account by setting forth 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 Collection
Account is established pursuant to this
Section 4.02, the Servicer shall provide to
the Trustee an amended Schedule II, setting
forth the relevant information for such
substitute Collection Account.
Section 4.03. Collections Arrangements.
Obligors shall at all times hereunder be
instructed to make payments on the Receivables
only (i) to the Dedicated Zip Code (ii) as In-
Store Payments or (iii) as Direct Deposit
Payments. All Collections on Receivables
received in the Dedicated Zip Code will,
pending remittance to the Collection Account,
be held for the benefit of the Trust and shall
be deposited into a Local Deposit Account as
promptly as possible after the processing of
such Collections. In-Store Payments shall be
deposited in a Local Deposit Account as
promptly as possible after the date of
processing of such Collections, but in no
event later than the next Business Day
following such date of processing. Direct
Deposit Payments shall be deposited in a Local
Deposit Account as promptly as possible after
the date of processing of such Collections,
but in no event later than the next Business
Day following such date of processing.
Section 4.04. Collection Allocations.
(a) Each day's Collections will be allocated
by the Servicer at the commencement of
business on the next succeeding Business Day
to each Series from and after the Series Cut-
Off Date for such Series, as specified in this
Section 4.04, and Collections so allocated
will be recorded as such in the Collection
Account ledger maintained by the Trustee
promptly after receipt of and in accordance
with the written instructions of the Servicer
with respect thereto. Amounts allocated to
any Series will not, except as specified in
the related Supplement, be available to the
Investor Certificates of any other Series. In
addition, Collections received during a
Business Day will be allocated by the Servicer
at the commencement of business on the next
succeeding Business Day between Investor
Certificates, the Exchangeable Certificate and
any Subordinated Certificate as specified in
the relevant Supplement. Amounts so allocated
to Investor Certificates will not be available
to the holder of the Exchangeable Certificate
or any Subordinated Certificate, and amounts
allocated to the Exchangeable Certificate or
any Subordinated Certificate will not, except
as specified in the related Supplement, be
available to the Holders of Investor
Certificates. Allocations among the Holders
of Investor Certificates of a Series and among
the Classes in any Series shall be made as set
forth in this Agreement and in the related
Supplement or Supplements.
(b) Finance Charge Collections, Principal
Collections and Miscellaneous Payments
received during a Business Day shall be
allocated to each Series by the Servicer at
the commencement of business on the next
succeeding Business Day based on the Series
Allocation Percentage. Thereafter, for each
Series, the Servicer shall allocate to the
holder of the Exchangeable Certificate an
amount equal to the product of (A) the
Exchangeable Holder's Percentage (as defined
in each Supplement) and (B) the aggregate
amount of such Collections allocated to the
Series for such Business Day. Collections
allocated to a Series and not otherwise
allocated to the holder of the Exchangeable
Certificate shall be retained in the
Collection Account for further disposition as
specified in the Supplement for such Series.
Unless specified in any Supplement (with
respect to a retained amount account, reserve
account, spread account or other cash
retention account), the Servicer need not
retain amounts allocated to the Exchangeable
Certificate pursuant to any Supplement, and
shall instead pay such amounts or shall direct
the Trustee in writing to pay such amounts as
collected to the holder of the Exchangeable
Certificate. Miscellaneous Payments shall be
treated as Finance Charge Collections. Any
Discount Rate or Discount Portion arising in
any Collection Period under Section 2.07 will
be deducted from Principal Collections each
day that such Collections are allocated
hereunder and allocated as Finance Charge
Collections.
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
SECTION 5.01. Distributions. (a) 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
the related Supplement 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 5.02. Reports and Statements to
Certificateholders. On each Distribution
Date, the Trustee shall forward to each
Certificateholders the Distribution Date
Statement described in Section 3.04(b) hereof.
(a) The Trustee shall maintain at its
Corporate Trust Office a copy of each such
Distribution Date Statement received by it
pursuant to subsection (b) of Section 3.04
hereof. The Trustee shall make such
statements available for inspection by
Certificateholders upon reasonable notice at
its Corporate Trust Office.
(b) On or before January 31 of each calendar
year, beginning with calendar year 2000, the
Trustee shall furnish or cause to be furnished
to each Person who at any time during the
preceding calendar year was a
Certificateholder, a statement prepared by the
Servicer containing the information required
to be contained in the monthly statements to
Certificateholders described in subsection (b)
of Section 3.04, as the case may be,
aggregated for such calendar year or the
applicable portion thereof during which such
Person was a Certificateholder, together with
such other information as is customarily
provided by a Trustee to an issuer of
indebtedness in order to assist such issuer in
meeting the requirements of the Internal
Revenue Code and such other customary
information as the Servicer has indicated to
the Trustee is necessary to enable the
Certificateholders to prepare their tax
returns. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent
that substantially comparable information
shall be provided by the Trustee pursuant to
any requirements of the Internal Revenue Code
as from time to time in effect.
ARTICLE VI
THE CERTIFICATES
SECTION 6.01. The Certificates.
(a) The Investor Certificates of any Series
or Class and any Subordinated Certificate
shall be issued substantially in the form of
the respective exhibit attached to the related
Supplement. The Exchangeable Certificate
shall be issued in registered form, and shall
be executed, authenticated and delivered as
provided in Section 6.02 hereof. Investor
Certificates shall be issued in minimum
denominations of $1,000,000 and in integral
multiples of $100,000 in excess thereof. The
Exchangeable Certificate shall be a single
certificate and shall represent the entire
Depositor Interest.
(b) Each Certificate shall be executed by
manual or facsimile signature by the
Depositor. Certificates bearing the manual or
facsimile signature of an individual who was,
at the time such signature was affixed, an
officer of the Depositor shall not be rendered
invalid in the event such individual ceased to
be an officer of the Depositor prior to the
authentication and delivery of such
Certificates. No Certificates shall be
entitled to any benefit under this Agreement,
or be valid for any purpose, unless there
appears on such Certificate a certificate of
authentication executed by or on behalf of the
Trustee by the manual signature of a duly
authorized signatory, and such certificate
upon any Certificate shall be conclusive
evidence that such Certificate has been duly
authenticated and delivered hereunder. Unless
otherwise provided in the Series Supplement
pursuant to which any Certificates are issued,
all Certificates shall be dated the date of
their authentication.
Section 6.02. Authentication of Certificates.
The Trustee shall authenticate and deliver the
Certificates of each Series and Class that are
issued upon original issuance to or upon the
written order of the Depositor. The Trustee
shall, upon the written request of the
Depositor, authenticate and deliver the
Exchangeable Certificate to the Depositor
simultaneously with its delivery of the
Certificates of the first Series to be issued
hereunder.
Section 6.03. New Issuances.
(a) The Depositor may, from time to time,
direct the Trustee in writing, on behalf of
the Trust, to issue one or more new Series of
Investor Certificates pursuant to a
Supplement. Except as otherwise provided in
the related Supplement, the Investor
Certificates of all outstanding Series, each
Subordinated Certificate issued pursuant to
any Supplement and the Exchangeable
Certificate shall be equally and ratably
entitled to the benefits of this Agreement
without preference, priority or distinction,
all in accordance with the terms and
provisions of this Agreement and the related
Supplement.
(b) On or before any Series Issuance Date,
the parties hereto shall execute and deliver a
Supplement which shall specify the Principal
Terms of the new Series. The terms of such
Supplement may modify or amend the terms of
this Agreement solely as applied to such new
Series. The obligation of the Trustee to
issue the Certificates of such new Series and
to execute and deliver the related Supplement
is subject to satisfaction of the following
conditions:
(i) on or before the fifth Business Day
immediately preceding the Series Issuance
Date, the Depositor shall have given the
Trustee, the Servicer, each Rating Agency and
any Enhancement Provider written notice of
such issuance (which notice shall specify,
among other things, the applicable initial
principal amount and interest rates of the
Certificates to be issued) and the related
Series Issuance Date;
(ii) the Depositor shall have delivered to the
Trustee the related Supplement, in form
satisfactory to the Trustee, executed by each
party hereto other than the Trustee;
(iii) the Depositor shall have delivered
to the Trustee any related Enhancement
Agreement in form reasonably satisfactory to
the Trustee, executed by each of the parties
thereto, other than the Trustee;
(iv) the Depositor shall have delivered to the
Trustee:
(A) an Officer's
Certificate to the effect that the
Excess Balance Test, with regard to
each outstanding Series, has been
satisfied as of the last
Determination Date, and in the case
of the issuance of a new Series of
Fixed Based Certificates, that the
Excess Balance Test has been
satisfied calculated on a projection
basis, and setting forth in
reasonable detail computations
evidencing such satisfaction.
Notwithstanding the foregoing, in
the case of the issuance of a new
Series of Certificates the Closing
Date of which is within two months
of the commencement of any
Controlled Amortization Period with
respect to any outstanding Series,
the requirement of this Section
6.03(b)(iv) will have been met upon
the delivery by the Depositor to the
Trustee of an Officer's Certificate
to the effect that (i) the Excess
Balance Test has been met for each
such Series for the calendar month
preceding the Closing Date of such
new Series and (ii) the Excess
Balance Test has been met for each
such Series for the calendar month
following the Closing Date of such
new Series, after giving effect to
any subsequent purchase of
Receivables with the proceeds of
such issuance or other application
of proceeds from the issuance of
such New Series, or
(B) the Consent of
Certificateholders approving said
new issuance; provided that each
Certificateholder by its acceptance
of its Certificates shall be deemed
to have agreed that its consent to
any issuance of a new Series
hereunder shall not be unreasonably
withheld;
(v) the Rating Agency Condition shall have
been satisfied with respect to such issuance;
(vi) the Depositor shall have delivered to the
Trustee a certificate of a Vice President or
more senior officer, dated the Series Issuance
Date, to the effect that the Depositor
reasonably believes that such issuance will
not result in the occurrence of an Early
Amortization Event;
(vii) the Depositor shall have delivered
to the Trustee a Tax Opinion, dated the Series
Issuance Date, with respect to such issuance;
and
(viii) the Trustee shall have approved said
issuance; provided, however, that the Trustee
agrees that such consent shall not be
unreasonably withheld.
Upon satisfaction of the above
conditions, the Trustee shall execute the
Supplement and any Enhancement Agreement,
and the Depositor shall deliver to the
Trustee the executed Certificates of such
Series for authentication and delivery by
the Trustee upon the written order of the
Depositor.
(c) In connection with any new Series, the
Depositor shall tender the Exchangeable
Certificate to the Trustee in exchange for (i)
one or more newly issued Series of
Certificates and (ii) a reissued Exchangeable
Certificate (any such tender a Depositor
Exchange). In addition, to the extent
permitted for any Series as specified in the
related Supplement, the Holders of
Certificates of such Series may tender their
Certificates and the Depositor may tender the
Exchangeable Certificate to the Trustee
pursuant to the terms and conditions set forth
in such Supplement in exchange for (i) in the
case of the Certificateholders of such Series,
one or more newly issued Series of
Certificates and (ii) in the case of the
Depositor, a reissued Exchangeable Certificate
(an "Investor Exchange"; a Depositor Exchange
and Investor Exchange are referred to
collectively herein as an Exchange). The
Depositor may perform an Exchange by notifying
the Trustee, in writing, at least five days in
advance (an "Exchange Notice") of the date
upon which the Exchange is to occur (an
"Exchange Date"). Any Exchange Notice shall
state the designation of any Series to be
issued on the Exchange Date and the Principal
Terms with respect to such Series of
Certificates. Upon satisfaction of such
conditions, and those set forth in Section
6.03 hereof, the Trustee shall cancel the
existing Exchangeable Certificate or
applicable Certificates, as the case may be,
and issue, as provided above, such Series
and/or a new Exchangeable Certificate, dated
the Exchange Date.
Section 6.04. Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall cause a register (the
"Certificate Register") to be kept at its
office or agency in which a transfer agent and
registrar (the "Transfer Agent and Registrar")
shall record the issuance of the Certificates
and the Exchangeable Certificate, including
the identity of the Registered Holder, and
each transfer, pledge and exchange of such
Certificates as herein provided. The Transfer
Agent and Registrar shall initially be the
Trustee and any co-transfer agent and co-
registrar chosen by the Depositor and
acceptable to the Trustee. Any reference in
this Agreement to the Transfer Agent and
Registrar shall include any co-transfer agent
and co-registrar unless the context requires
otherwise.
(b) The Transfer Agent and Registrar shall
maintain at its expense, an office or agency
in The City of New York where Certificates may
be surrendered for registration of transfer or
exchange.
The Trustee or the Transfer Agent
and Registrar, as the case may be, shall not
be required to register the transfer or
exchange of any Certificate for a period of
fifteen (15) days preceding the due date for
any payment with respect to such Certificate.
In addition, the Trustee or the Transfer Agent
and Registrar shall not subdivide Certificates
into units smaller than the minimum initial
amount specified in 6.01 hereof.
(c) Upon the surrender of any Certificates
for registration of transfer or exchange, the
Trustee may execute, on behalf of the
Depositor, and shall authenticate and the
Transfer Agent and Registrar shall deliver one
or more new Certificates of the same series or
class in authorized denominations of like
aggregate amount and tenor to the
Certificateholder or designated transferee(s).
Every Certificate presented or surrendered for
registration of transfer or exchange shall be
accompanied by a written instrument of
transfer in a form satisfactory to the Trustee
or the Transfer Agent and Registrar duly
executed by the Certificateholder or its
attorney-in-fact duly authorized in writing.
All Certificates surrendered for
registration of transfer, exchange or payment
shall be canceled and disposed of in a manner
satisfactory to the Trustee.
The Depositor shall deliver to the
Trustee executed Certificates in such amounts
and at such times as are necessary to enable
the Trustee to fulfill its responsibilities
under this Agreement and the Certificates.
(d) Unless otherwise provided in the related
Supplement, no service charge shall be made
for any registration of transfer or exchange
of Certificates, but the Transfer Agent and
Registrar may require payment of a sum
sufficient to recover any tax or governmental
charge that may be imposed in connection with
any such transfer or exchange.
(e) Registration of transfer or exchange of
Certificates containing a legend to the effect
set forth on Exhibit H-1 hereto shall be
effected only if such transfer or exchange is
made pursuant to an effective registration
statement under the 1933 Act, or is exempt
from the registration requirements under the
1933 Act. In the event that registration of a
transfer is to be made in reliance upon an
exemption from the registration requirements
under the 1933 Act, the transferor or the
transferee shall, at its expense, deliver to
the Depositor, the Servicer and the Trustee
prior to registration an investment letter
from the transferee, substantially in the form
of the respective exhibit attached to the
related Supplement.
Certificates issued upon
registration of transfer of, or exchange for,
Certificates bearing a legend shall also bear
such legend unless the Depositor, the
Servicer, the Trustee and the Transfer Agent
and Registrar receive an Opinion of Counsel,
satisfactory to each of them, to the effect
that such legend may be removed.
Whenever a Certificate containing
the legend referred to above is presented to
the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent
and Registrar shall promptly seek written
instructions from the Servicer regarding such
transfer and shall be entitled to receive and
conclusively rely upon instructions signed by
a Servicing Officer prior to registering any
such transfer. The Depositor hereby agrees to
indemnify the Transfer Agent and Registrar and
the Trustee and to hold each of them harmless
against any loss, liability or expense
incurred without negligence or bad faith on
their part arising out of or in connection
with actions taken or omitted by them in
relation to any such instructions furnished
pursuant to this clause (e).
(f) Registration of transfer or exchange of
Certificates containing a legend to the effect
set forth on Exhibit I hereto shall be
effected only if such transfer or exchange is
made to a Person that is not an 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
Internal Revenue Code) organized in a
jurisdiction having prohibitions on
transactions with such governmental plan
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 (other than the Initial Holder) to
acquire any Certificate may constitute assets
(within the meaning of ERISA and any
applicable rules and regulations) of an ERISA
Plan.
(g) In addition to any limitation in Section
6.04(h) below, the Exchangeable Certificate
may not be transferred, assigned, exchanged,
pledged or otherwise conveyed unless the
conditions set forth in (i) and (ii) below
have been satisfied:
(i) the Rating Agency Condition shall have
been satisfied in connection with the proposed
action; and
(ii) the Depositor shall have delivered to the
Trustee a Tax Opinion, dated the date of such
exchange (or transfer or exchange as provided
below), with respect to such exchange.
The Trustee shall not register the
transfer of the Exchangeable Certificate
except upon receipt of certification from the
Depositor to the effect that such transfer
complies with the provisions of the 1933 Act.
(h) It is the understanding of the parties to
this Agreement that Gottschalks Inc. has
particular expertise in performing the
functions given by this Agreement to the
Servicer and that the Investor
Certificateholders will be purchasing the
Certificates relying on Gottschalks Inc.'s
exercising such expertise in performing such
functions. As provided in Sections 8.05 and
8.07 of the Agreement, the Servicer is not
permitted to resign except as provided herein
and the parties understand that the Servicer's
performance of its servicing functions and the
quality of the Receivables will best be
ensured if the Depositor retains all or a
portion of the Exchangeable Certificate.
Accordingly, the Depositor's interest in the
Exchangeable Certificate shall not be sold,
transferred, assigned, exchanged, pledged,
participated or otherwise conveyed, unless (i)
such sale, transfer, assignment, exchange,
pledge or conveyance would not reduce the
Depositor's retained interest in the
Exchangeable Certificate and any Subordinated
Certificate then outstanding below the Minimum
Depositor Interest for any Series and, in the
aggregate, for all Series, then outstanding
and (ii) in the case of an Exchange pursuant
to Section 6.03(c) hereof, the conditions for
issuance of a Series are satisfied. The
Trustee may rely on any Officer's Certificate
as to the foregoing.
Section 6.05. Mutilated, Destroyed, Lost or
Stolen Certificates. If (a) any mutilated
Certificate is surrendered to the Transfer
Agent and Registrar, or the Transfer Agent and
Registrar receives evidence to its
satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered
to the Transfer Agent and Registrar and the
Trustee such security or indemnity as may be
required by them to hold each of them harmless
(provided that an unsecured agreement of
indemnity from an institutional
Certificateholder with a net worth or
statutory surplus of not less than $50 million
shall be sufficient indemnity), then, in the
absence of actual notice to a Responsible
Officer of the Trustee that such Certificate
has been acquired by a bona fide purchaser,
the Depositor shall execute and the Trustee
shall authenticate, and the Transfer Agent and
Registrar shall deliver in exchange for or in
lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the
same Series or Class and like aggregate amount
and tenor. In connection with the issuance of
any new Certificate under this Section 6.05,
the Trustee or the Transfer Agent and
Registrar may require the Certificateholder to
pay a sum sufficient to recover any tax or
governmental charge that may be imposed in
relation thereto and any other expenses
(including the fees and expenses of the
Trustee and Transfer Agent and Registrar)
connected therewith. Any duplicate
Certificate issued pursuant to this Section
6.05 shall constitute complete and
indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not
the lost, stolen or destroyed Certificate
shall be found at any time.
Section 6.06. Persons Deemed Owners. The
Trustee, the Transfer Agent and Registrar and
any agent of any of them may, prior to due
presentation of a Certificate for registration
of transfer or exchange, treat the Person or
Persons in whose name any Certificate is
registered as the owner of such Certificate
for the purpose of receiving distributions
pursuant to the terms of the related
Supplement and for all other purposes
whatsoever; and, in any such case, neither the
Trustee, the Transfer Agent and Registrar nor
any of their respect agents shall be affected
by any notice to the contrary.
Notwithstanding the foregoing, in determining
whether the holders of the requisite
Certificates have given any request, demand,
authorization, direction, notice, consent or
waiver hereunder, Certificates owned by the
Depositor, the Servicer or any Affiliate
thereof, shall be disregarded and deemed not
to be outstanding, except that, in determining
whether the Trustee shall be protected in
relying upon any such request, demand,
authorization, direction, notice, consent or
waiver, only Certificates that a Responsible
Officer of the Trustee knows to be so owned
shall be so disregarded. Certificates so
owned that have been pledged in good faith
shall not be disregarded and may be regarded
as outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledge's
right so to act with respect to such
Certificates and that the pledgee is not the
Depositor, the Servicer or any Affiliate
thereof.
Section 6.07. Access to List of Registered
Certificateholders' Names and Addresses. The
Trustee will furnish or cause to be furnished
by the Transfer Agent and Registrar to the
Servicer, within five (5) Business Days after
receipt by the Trustee of a request therefor,
a list of the names and addresses of the
Certificateholders. If three or more holders
of Investor Certificates (the Applicants)
apply to the Trustee, and such application
states that the Applicants desire to
communicate with other Certificateholders with
respect to their rights under this Agreement
or any Supplement or under the Investor
Certificates and is accompanied by a copy of
the communication that such Applicants propose
to transmit, then the Trustee, after having
been indemnified to its reasonable
satisfaction by such Applicants for its costs
and expenses, shall afford or shall cause the
Transfer Agent and Registrar to afford such
Applicants access during normal business hours
to the most recent list of Certificateholders
of such Series or all outstanding Series, as
applicable, held by the Trustee. Such list
shall be as of a date no more than forty-five
(45) days prior to the date of receipt of such
Applicants' request.
Every Certificateholder, by
receiving and holding an Investor Certificate,
agrees with the Trustee that neither the
Trustee, the Transfer Agent and Registrar nor
any of their respective agents, shall be held
accountable by reason of the disclosure of any
information as to the names and addresses of
the Certificateholders hereunder, regardless
of the sources from which such information was
derived.
ARTICLE VII
OTHER MATTERS RELATING TO THE DEPOSITOR
SECTION 7.01. Liability of the Depositor.
The Depositor shall be liable for all
obligations, covenants, representations and
warranties of the Depositor arising under or
related to this Agreement. Except as provided
in the preceding sentence, the Depositor shall
be liable only to the extent of the
obligations specifically undertaken by it in
its capacity as Depositor hereunder.
Section 7.02. Limitation on Liability of the
Depositor. Subject to Section 7.01 and
Section 7.03 hereof, neither the Depositor nor
any of the directors, officers, employees,
affiliates, stockholders, agents or
representatives or advisors of the Depositor
shall be under any liability to the Trust, the
Trustee, the Certificateholders or any other
Person for any action taken or for refraining
from taking any action in its capacity as
Depositor pursuant to this Agreement whether
arising from express or implied duties under
this Agreement; provided, however, that this
provision shall not protect the Depositor or
any such Person against any liability that
would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence
in the performance of duties or by reason of
reckless disregard of obligations and duties
hereunder. The Depositor and any director,
officer, employee, affiliate, stockholder,
agent, representative or advisor of the
Depositor may rely in good faith on any
document of any kind prima facie properly
executed and submitted by any Person
respecting any matters arising hereunder. The
Depositor shall not be under any obligation to
appear in, prosecute or defend any legal
action that is not incidental to its
obligations hereunder and in its reasonable
opinion may involve it in any expense or
liability.
Section 7.03. Depositor Indemnification. (A)
The Depositor shall indemnify and hold the
Trust, for the benefit of the Beneficiaries,
and the Trustee, harmless from and against any
loss, liability, reasonable expense, damage or
injury suffered or sustained by reason of any
acts or omissions or alleged acts or omissions
arising out of or based upon this Agreement,
including, but not limited to, any judgment,
general settlement, reasonable attorneys' fees
and other costs and expenses incurred by the
Trustee in connection with the defense of any
actual or threatened action, proceeding or
claim (other than losses on Receivables and
amounts due with respect thereto); provided,
however, that the Depositor shall not
indemnify the Trust or the Trustee or any
officer, director, employee or agent of the
Trustee if such actual or threatened action,
proceeding or claim arose out of, or such
loss, liability, expense, damage or injury was
caused by fraud, negligence, breach of
fiduciary duty or willful misconduct by any of
the foregoing; provided, further, that the
Depositor shall not be liable, directly or
indirectly, for or in respect of any
indebtedness evidenced or created by any
Certificate, including with respect to any
Enhancement, recourse as to which is limited
solely to the assets of the Trust allocated
for payment thereof as provided in this
Agreement and any applicable Supplement;
provided, further, that the Depositor shall
not indemnify the Trust, the Trustee or any
Beneficiary for any liabilities, cost or
expense of the Trust with respect to any
action taken by the Trustee at the request of
any such Beneficiary to the extent the Trustee
is fully indemnified by such Beneficiary with
respect to such action or with respect to any
Federal, state or local income or franchise
taxes (or any interest or penalties with
respect thereto) required to be paid by the
Trust or any Beneficiary in connection
herewith to any taxing authority. In the
event that the Trustee is or the Trust Assets
are liable to any third party (not including
the Trustee or its agents or the Holders of
the Investor Certificates) for any losses,
claims, damages or liabilities arising out of
the holding of the Receivables or the
administration of this Agreement, any Related
Document or any related arrangement that are
not paid out of the Trust Assets, the
Depositor (as holder of the Exchangeable
Certificate) agrees (i) to be liable as though
the Agreement and any Supplement created a
partnership under the Uniform Partnership Act
and (ii) to contribute to the Trust for the
benefit of such third party, without
limitation as to the amount, sufficient cash
to satisfy and discharge such liability. The
Trustee agrees to use any such cash advanced
by the Depositor to satisfy and discharge such
liability. The agreement by the Depositor set
forth in this Section shall not limit the
liability of the Depositor hereunder to any
Person specified herein. With respect to any
liability for which the Depositor would not be
obligated to make a contribution to the Trust,
but for the operation of this Section 7.03,
any party to this Agreement that would be
liable for such liability were such liability
not paid or discharged by the Depositor
pursuant to this Section 7.03, shall indemnify
and hold the Depositor harmless against such
liability; provided that nothing in this
Section shall be construed to imply that the
Holders of any Investor Certificates have any
liability to third parties. Any
indemnification under this Article VII shall
survive the termination of this Agreement and
the earlier removal or resignation of the
Trustee.
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
SECTION 8.01. Liability of the Servicer. The
Servicer shall be liable under this Article
VIII only to the extent of the obligations
specifically undertaken by the Servicer in its
capacity as Servicer.
Section 8.02. Limitation on Liability of the
Servicer. Except as provided in Section 8.01
and Section 8.03 hereof, neither the Servicer
nor any of the directors, officers, employees,
affiliates, stockholders, agents,
representatives or advisors of the Servicer
shall be under any liability to the Trust, the
Trustee, the Certificateholders or any other
Person for any action taken or for refraining
from taking any action in its capacity as
Servicer pursuant to this Agreement; provided,
however, that this provision shall not protect
the Servicer or any such Person against any
liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or
negligence in the performance of duties or by
reason of reckless disregard of obligations
and duties hereunder. The Servicer and any
director, officer, employee, affiliate,
stockholder, agent, representative or advisor
of the Servicer may rely in good faith on any
document of any kind prima facie properly
executed and submitted by any Person
respecting any matters arising hereunder. The
Servicer shall not be under any obligation to
appear in, prosecute or defend any legal
action that is not incidental to its
obligations hereunder that in its reasonable
opinion may involve it in any expense or
liability.
Section 8.03. Servicer Indemnification of the
Trust and the Trustee. The Servicer shall
indemnify and hold harmless the Trust, for the
benefit of the Beneficiaries, and the Trustee
from and against any loss, liability,
reasonable expense, damage or injury suffered
or sustained by reason of any acts or
omissions or alleged acts or omissions arising
out of or based upon this Agreement,
including, but not limited to, any judgment,
general settlement, reasonable attorneys' fees
and other costs and expenses incurred by the
Trustee in connection with the defense of any
actual or threatened action, proceeding or
claim (other than losses on Receivables and
amounts due with respect thereto); provided,
however, that the Servicer shall not indemnify
the Trust or the Trustee or any officer,
director, employee or agent of the Trustee if
such actual or threatened action, proceeding
or claim arose out of, or such loss,
liability, expense, damage or injury was
caused by fraud, negligence, breach of
fiduciary duty or willful misconduct by any of
the foregoing; provided, further, that the
Servicer shall not be liable, directly or
indirectly, for or in respect of any
indebtedness evidenced or created by any
Certificate, including with respect to any
Enhancement, recourse as to which is limited
solely to the assets of the Trust allocated
for payment thereof as provided in this
Agreement and any applicable Supplement;
provided, further, that the Servicer shall not
indemnify the Trust, the Trustee or any
Beneficiary for any liabilities, cost or
expense of the Trust with respect to any
action taken by the Trustee at the request of
any such Beneficiary to the extent the Trustee
is fully indemnified by such Beneficiary with
respect to such action or with respect to any
Federal, state or local income or franchise
taxes (or any interest or penalties with
respect thereto) required to be paid by the
Trust or any Beneficiary in connection
herewith to any taxing authority. The
Servicer shall indemnify and hold harmless the
Trustee and its officers, directors, employees
or agents from and against any loss,
liability, reasonable expense, damage or
injury suffered or sustained by reason of the
acceptance of the Trust by the Trustee, the
issuance by the Trust of the Certificates or
any of the other matters contemplated herein
or in any Supplement (other than losses on
Receivables and amounts due with respect
thereto). Any indemnification under this
Article VIII shall run directly to and be
enforceable by an injured party subject to the
limitations hereof and shall survive the
resignation or removal of the Servicer, the
resignation or removal of the Trustee and/or
the termination of the Trust and shall survive
the termination of this Agreement. Any such
indemnification shall not be payable from the
assets of the Trust.
Section 8.04. Merger or Consolidation of, or
Assumption of, the Obligations of the
Servicer. Subject to subsection 3.01(a), 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:
(i) the entity formed by such consolidation
or into which the Servicer is merged or the
Person which acquires by conveyance or
transfer the properties and assets of the
Servicer substantially as an entirety shall be
a corporation or other acquiring entity
organized and existing under the laws of the
United States of America or any State thereof
or the District of Columbia and, if the
Servicer is not the surviving entity, such
entity shall expressly assume, by written
agreement supplemental hereto, executed and
delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the performance
of every covenant and obligation of the
Servicer as applicable hereunder and shall
benefit from all the rights granted to the
Servicer, as applicable hereunder. (To the
extent that any right, covenant or obligation
of the Servicer, as applicable hereunder, is
inapplicable to the successor entity, such
successor entity shall be subject to such
covenant or obligation, or benefit from such
right, as would apply, to the extent
practicable, to such successor entity);
(ii) the Servicer shall have delivered to the
Trustee an Officer's Certificate signed by a
Vice President (or any more senior officer)
stating that such consolidation, merger,
conveyance or transfer and such supplemental
agreement comply with this Section 8.04 and
that all conditions precedent herein provided
for relating to such transaction have been
complied with and an Opinion of Counsel that
such supplemental agreement is legal, valid
and binding and that the entity surviving such
consolidation, conveyance or transfer is
organized and existing under the laws of the
United States of America or any State thereof
or the District of Columbia; and
(iii) the Servicer shall have delivered
notice to the Rating Agencies of such
consolidation, merger, conveyance or transfer
and the Rating Agency Condition shall have
been satisfied.
Section 8.05. The Servicer Not to Resign.
The Servicer shall not resign from the
obligations and duties hereby imposed on it
except upon determination that (a) the
performance of its duties hereunder is no
longer permissible under applicable law and
(b) there is no reasonable action that the
Servicer could take to make the performance of
its duties hereunder permissible under
applicable law. No such resignation shall
become effective until the Trustee or a
Successor Servicer shall have assumed the
responsibilities and obligations of the
Servicer in accordance with Section 10.02
hereof. If the Trustee is unable within sixty
(60) days of the date of such determination to
appoint a Successor Servicer, the Trustee
shall serve as Successor Servicer hereunder.
Section 8.06. Access to Certain Information
Regarding the Receivables; Meet and Confer.
(a) The Servicer shall provide to the Trustee
and its agents, as well as any
Certificateholders' Representative, access to
the documentation regarding the Accounts and
the Receivables, such access being afforded
without charge and as often as requested but
only (i) during normal business hours, (ii)
subject to the Servicer's normal security and
confidentiality procedures, (iii) upon receipt
of written notice at least two Business Days
in advance of such visit, and (iv) at offices
designated by the Servicer. Nothing in this
Section 8.06 shall derogate from the
obligation of the Depositor, the Trustee or
the Servicer to observe any applicable law
prohibiting disclosure of information
regarding the Obligors and the failure of the
Servicer to provide access as provided in this
Section 8.06(a) as a result of such obligation
shall not constitute a breach of this Section
8.06(a).
(b) Subject to the provisions of Section
8.06(a)(i) through (iv) above, the Servicer
shall also provide upon reasonable request to
a Certificateholders' Representative access to
one or more senior officers of the Servicer to
discuss the financial position of the Servicer
and its ability to perform its obligations
hereunder.
Section 8.07. Delegation of Duties. In the
ordinary course of business, the Servicer may
at any time delegate any duties hereunder to
any Person who agrees to conduct such duties
in accordance with the Charge Card Agreements,
the Financial Guidelines, this Agreement and
each Supplement. The Servicer shall give
prompt written notice of any such delegation
of a material function to the Rating Agencies,
the Trustee and any Enhancement Providers.
Such delegation shall not relieve the Servicer
of its liability and responsibility with
respect to such duties, and shall not
constitute a resignation within the meaning of
Section 8.05 hereof.
Section 8.08. Examination of Records. The
Depositor and the Servicer shall indicate
generally in their respective computer files
or other records that the Receivables arising
in the Accounts have been conveyed to the
Trust pursuant to this Agreement for the
benefit of the Beneficiaries. The Depositor
and the Servicer shall, prior to the sale or
transfer to a third party of any receivable
held in its custody, examine its computer and
other records to determine that such
receivable is not a Receivable.
ARTICLE IX
EARLY AMORTIZATION EVENTS
SECTION 9.01. Early Amortization Events. If
any one of the following events shall occur:
(a) the Depositor or the Servicer (or the
Seller, if it is not the Servicer) shall file
a petition commencing a voluntary case under
any chapter of the Federal bankruptcy laws or
the Depositor or the Servicer (or the Seller,
as aforesaid) shall file a petition or answer
or consent seeking reorganization,
arrangement, adjustment, or composition under
any other similar applicable Federal or state
law, or shall consent to the filing of any
such petition, answer or consent; or the
Depositor or the Servicer (or the Seller, as
aforesaid) shall appoint, or consent to the
appointment of, a custodian, receiver,
liquidator, trustee, assignee, sequestrator or
other similar official in bankruptcy or
insolvency of it or of any substantial part of
its property; or the Depositor or the Servicer
(or the Seller, as aforesaid) shall make an
assignment for the benefit of creditors, or
shall admit in writing its inability to pay
its debts generally as they become due;
(b) any order for relief against the
Depositor or the Servicer (or the Seller, if
it is not the Servicer) shall have been
entered by a court having jurisdiction in the
premises under any chapter of the Federal
bankruptcy laws; or a decree or order by a
court having jurisdiction in the premises
shall have been entered approving as properly
filed a petition seeking reorganization,
arrangement, adjustment, or composition of the
Depositor or the Servicer (or the Seller, as
aforesaid) under any other similar applicable
Federal or state law; or a decree or order of
a court having jurisdiction in the premises
for the appointment of a custodian, receiver,
liquidator, trustee, assignee, sequestrator,
or other similar official in bankruptcy or
insolvency of the Depositor or the Servicer
(or the Seller, as aforesaid) or of any
substantial part of its property or for the
winding up or liquidation of its affairs,
shall have been entered;
(c) the occurrence of a Servicer Default; or
(d) the Trust or the Depositor shall become
an "investment company" within the meaning of
the Investment Company Act of 1940, as
amended.
then, subject to applicable law, and after the
applicable grace period, if any, an
amortization event (an "Early Amortization
Event") shall occur without any notice or
other action on the part of the Trustee or any
Beneficiary, immediately upon the occurrence
of such event. The Trustee shall provide
written notice to the Rating Agencies promptly
after receipt of written notice of any such
event.
Section 9.02. Additional Rights Upon the
Occurrence of Certain Events.
(a) If a Liquidation Event occurs with
respect to the Depositor, the Depositor shall
on the day such Liquidation Event occurs (the
"Appointment Date") immediately cease to
transfer Receivables to the Trust and shall
promptly give notice to the Trustee of such
Liquidation Event. Within fifteen (15) days
of the Appointment Date, the Trustee shall (i)
publish a notice in an Authorized Newspaper
that a Liquidation Event or violation has
occurred and that the Trustee intends to sell,
dispose of or otherwise liquidate the
Receivables on commercially reasonable terms
and in a commercially reasonable manner and
(ii) give written notice to Certificateholders
describing the provisions of this Section 9.02
and requesting instructions from such Holders.
Unless the Trustee shall have received
instructions within thirty (30) days from the
date notice pursuant to clause (ii) above is
first given from Certificateholders pursuant
to a Consent of Certificateholders, to the
effect that such Certificateholders disapprove
of the liquidation of the Receivables and wish
to continue having Principal Receivables
transferred to the Trust as before the
occurrence of such Liquidation Event then the
Trustee shall promptly sell, dispose of or
otherwise liquidate the Receivables, or cause
to be sold, disposed of or otherwise
liquidated, in a commercially reasonable
manner and on commercially reasonable terms,
which shall include the solicitation of
competitive bids. The Trustee may obtain and
conclusively rely upon a prior determination
from any applicable conservator, receiver or
liquidator that the terms and manner of any
proposed sale, disposition or liquidation are
commercially reasonable. The provisions of
Section 9.01 hereof and this Section 9.02
shall not be deemed to be mutually exclusive.
(b) A "Liquidation Event" shall occur if any
Early Amortization Event specified in Section
9.01(a), (b) or (d) of this Agreement occurs
with respect to the Servicer or the Depositor.
(c) The proceeds from the sale, disposition
or liquidation of the Receivables pursuant to
subsection (a) above (the "Trust Liquidation
Proceeds") shall be immediately deposited in
the Collection Account. The Trustee shall
determine conclusively the amount of the Trust
Liquidation Proceeds which are deemed to be
Finance Charge Receivables and Principal
Receivables. The Trust Liquidation Proceeds
shall be allocated and distributed to
Certificateholders in accordance with Article
IV hereof and the terms of each Supplement,
and the Trust shall terminate immediately
thereafter.
ARTICLE X
SERVICER DEFAULTS
SECTION 10.01. Servicer Defaults. If any one
of the following events (a "Servicer Default")
shall occur and be continuing with respect to
the Servicer:
(a) any failure by the Servicer to make any
payment, transfer or deposit, or to give
instructions or notice to the Trustee to make
such payment, transfer or deposit, or to give
notice to the Trustee as to any action to be
taken under any Enhancement Agreement, in any
case on or before the date occurring two (2)
Business Days after receipt of written notice
of such failure;
(b) failure on the part of the Servicer duly
to observe or perform its covenant not to
create any lien on any Receivable, which
failure has a material adverse effect on the
Certificateholders and which continues
unremedied for a period of thirty (30) days;
provided, however, that a Servicer Default
shall not be deemed to have occurred if the
Depositor shall have repurchased the affected
Receivables or, if applicable, all of the
Receivables during such period in accordance
with the provisions of this Agreement;
(c) failure on the part of the Servicer duly
to observe or perform any covenants or
agreements of the Servicer set forth in this
Agreement, including the delivery of any
annual report or certificate pursuant to
Sections 3.05 or 3.06 hereof, which failure
has a material adverse effect on the
Certificateholders and which continues uncured
for a period of thirty (30) days (or, upon
delivery to the Trustee and to
Certificateholders of a Servicer Default
Certificate, such longer period as may be
reasonably necessary to effect a cure) after
the receipt by the Servicer of written notice
of such failure;
(d) any representation, warranty or
certification made by the Servicer in this
Agreement or in any certificate delivered
pursuant to this Agreement (including any
certificates or statements delivered pursuant
to the requirements of Section 3.04 and
Section 3.05) shall prove to have been
materially incorrect when made and which
continues to be incorrect in any material
respect for a period of thirty (30) days after
receipt of written notice thereof and as a
result of which the interests of the
Certificateholders are materially and
adversely affected; provided, however, that a
Servicer Default shall not be deemed to have
occurred if the Depositor shall have
repurchased the affected Receivables or, if
applicable, all of the Receivables during such
period in accordance with the provisions of
this Agreement; or
(e) the Servicer shall consent to the
appointment of a conservator or receiver or
liquidator or other similar official in any
bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or
similar proceedings of or relating to the
Servicer or of or relating to all or
substantially all of its property, or a decree
or order of a court or agency or supervisory
authority having jurisdiction in the premises
for the appointment of a conservator or
receiver or liquidator or other similar
official in any insolvency, readjustment of
debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been
entered against the Servicer; or the Servicer
shall admit in writing its inability to pay
its debts generally as they become due, file a
petition to take advantage of any applicable
bankruptcy, insolvency or reorganization
statute, make any assignment for the benefit
of its creditors or voluntarily suspend
payment of its obligations (any such event, an
"Insolvency Event").
In the event of any Servicer
Default, so long as such Servicer Default
shall not have been remedied, the Trustee or
the Holders pursuant to a Consent of
Certificateholders, by notice then given in
writing to the Servicer (a Termination
Notice), may terminate all but not less than
all of the rights and obligations (other than
its obligations that have accrued up to the
time of such termination) of the Servicer as
Servicer under this Agreement and in and to
the Receivables and the proceeds thereof. The
Trustee shall give prompt written notice of
any such event to the Rating Agencies, as well
as any waivers or cures of any such event
promptly after receipt of written notice
thereof. After receipt by the Servicer of a
Termination Notice, and on the date that a
Successor Servicer shall have been appointed
by the Trustee pursuant to Section 10.02
hereof, all authority and power of the
Servicer under this Agreement shall pass to
and be vested in a Successor Servicer (a
"Service Transfer") and, without limitation,
the Trustee is hereby authorized and empowered
(upon the failure of the Servicer to
cooperate) to execute and deliver, on behalf
of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments
upon the failure of the Servicer to execute or
deliver such documents or instruments, and to
do and accomplish all other acts or things
necessary or appropriate to effect the
purposes of such Service Transfer; provided,
however, that in no event shall the Servicer
incur any liability for any such action taken
by the Trustee. The Servicer agrees to
cooperate with the Trustee and such Successor
Servicer in effecting the termination of the
responsibilities and rights of the Servicer to
conduct servicing hereunder, including the
transfer to such Successor Servicer of all
authority of the Servicer to service the
Receivables provided for under this Agreement,
including all authority over all Collections
which shall on the date of transfer be held by
the Servicer for deposit, or which have been
deposited by the Servicer, in the Collection
Account, or which shall thereafter be received
with respect to the Receivables. The Servicer
shall promptly transfer its electronic records
relating to the Receivables to the Successor
Servicer in such electronic form as the
Successor Servicer may reasonably request, and
shall promptly transfer to the Successor
Servicer all other records, correspondence and
documents necessary for the continued
servicing of the Receivables in the manner and
at such times as the Successor Servicer shall
reasonably request. Gottschalks, as Servicer
also agrees to provide such access, computer
time and personnel to the Successor Servicer
as shall be necessary in order to assist the
Successor Servicer in assuming its duties
hereunder. To the extent that compliance with
this Section 10.01 shall require the Servicer
to disclose to the Successor Servicer
information of any kind which the Servicer
reasonably deems to be confidential, the
Successor Servicer shall be required to enter
into such customary licensing and
confidentiality agreements as the Servicer
shall deem necessary to protect its interest.
Notwithstanding the foregoing, a
delay in or failure of performance under
subsection (a) of this Section 10.01 for a
period of up to five (5) Business Days after
the applicable grace period, or a delay in or
failure of performance (or the continuance of
any such delay or failure) under subsection
(b), (c) or (d) of this Section 10.01 for a
period of up to thirty (30) Business Days (or,
upon delivery to the Trustee and
Certificateholders of a Servicer Default
Certificate, such longer period as is
reasonably necessary to effect a cure) shall
not constitute a Servicer Default if such
delay or failure or continuance was caused by
an act of God or the public enemy, acts of
declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides,
lightning, fire, hurricanes, earthquakes,
floods or similar causes. The preceding
sentence shall not relieve the Servicer of its
obligation to use its best efforts to perform
its respective obligations in a timely manner
in accordance with the terms of this Agreement
and the Servicer shall provide the Trustee,
any Enhancement Providers and the Depositor
with an Officer's Certificate giving prompt
notice of such failure or delay by it,
together with a description of its efforts so
to perform its obligations. The Servicer
shall immediately notify the Trustee in
writing of any Servicer Default.
Section 10.02. Trustee to Act; Appointment of
Successor.
(a) On and after the receipt by the Servicer
of a Termination Notice pursuant to Section
10.01 hereof, the Servicer shall continue to
perform all servicing functions under this
Agreement until the date specified in the
Termination Notice or otherwise specified by
the Trustee in writing or, if no such date is
specified in such Termination Notice, or
otherwise specified by the Trustee, until a
date mutually agreed upon by the Servicer and
Trustee. The Trustee shall, as promptly as
possible after the giving of a Termination
Notice, appoint an Eligible Servicer as a
successor servicer (the "Successor Servicer"),
and such Successor Servicer shall accept its
appointment by a written assumption in a form
acceptable to the Trustee. In the event that
a Successor Servicer has not been appointed or
has not accepted its appointment at the time
when the Servicer ceases to act as Servicer,
the Trustee, without further action, shall
automatically be appointed the Successor
Servicer. The Trustee may delegate any of its
servicing obligations to an Affiliate or agent
in accordance with Section 3.01 and Section
8.07 hereof. Notwithstanding the above, the
Trustee shall, if it is legally unable or
unwilling so to act, petition a court of
competent jurisdiction to appoint any
established institution satisfying the
definition of Eligible Servicer as the
Successor Servicer hereunder. The Trustee
shall immediately give notice to the Rating
Agencies, any Enhancement Providers, the
Depositor and the Certificateholders upon the
appointment of a Successor Servicer. No party
serving as Trustee hereunder shall be
obligated to serve as Successor Servicer after
such party ceases to serve as Trustee
hereunder.
(b) Upon its appointment, the Successor
Servicer shall be the successor in all
respects to the Servicer with respect to
servicing functions under this Agreement and
shall be subject to all the responsibilities,
duties and liabilities relating thereto placed
on the Servicer by the terms and provisions
hereof and all references in this Agreement to
the Servicer shall be deemed to refer to the
Successor Servicer; provided, however, that
(i) the Successor Servicer shall not be deemed
to have assumed any liability for any duties,
responsibilities or obligations of any
predecessor Servicer, (ii) Section 3.03(c) and
(d) hereof shall not apply to any Successor
Servicer, and (iii) the Successor Servicer
shall not be required to advance funds
hereunder or under any Supplement. Any
Successor Servicer, by its acceptance of its
appointment, will automatically agree to be
bound by the terms and provisions of any
Enhancement Agreement.
(c) In connection with any Termination
Notice, the Trustee will review any bids which
it obtains from Eligible Servicers and shall
be permitted to appoint any Eligible Servicer
submitting such a bid as a Successor Servicer
for servicing compensation not in excess of
the Servicing Fee (provided that if all such
bids exceed the Servicing Fee the Depositor,
at its own expense, shall pay when due the
amount of any compensation in excess of the
Servicing Fee provided such excess fee shall
have been determined by the Trustee in good
faith to be necessary in order to appoint the
Successor Servicer); provided, however, that
the Depositor shall be responsible for payment
of the Depositor's portion of the Servicing
Fee as determined pursuant to this Agreement
and all other amounts in excess of the
aggregate of the Monthly Servicing Fees
specified in the Supplements and that no such
monthly compensation paid out of Collections
shall be in excess of such aggregate of the
Monthly Servicing Fees.
(d) All authority and power granted to the
Successor Servicer under this Agreement shall
automatically cease and terminate upon
termination of the Trust pursuant to Section
12.01 hereof, and shall pass to and be vested
in the Depositor and, without limitation, the
Depositor is hereby authorized and empowered
to execute and deliver, on behalf of the
Successor Servicer, as attorney-in-fact or
otherwise, all documents and other
instruments, and to do and accomplish all
other acts or things necessary or appropriate
to effect the purposes of such transfer of
servicing rights. The Successor Servicer
agrees to cooperate with the Depositor in
effecting the termination of the
responsibilities and rights of the Successor
Servicer to conduct servicing on the
Receivables. The Successor Servicer shall
transfer its electronic records relating to
the Receivables to the Depositor in such
electronic form as the Depositor may
reasonably request and shall transfer all
other records, correspondence and documents to
the Depositor in the manner and at such times
as the Depositor shall reasonably request. To
the extent that compliance with this Section
10.02 shall require the Successor Servicer to
disclose to the Depositor information of any
kind which the Successor Servicer deems to be
confidential, the Depositor shall be required
to enter into such customary licensing and
confidentiality agreements as the Successor
Servicer shall deem necessary to protect its
interests.
ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of
any Servicer Default of which a Responsible
Officer of the Trustee has actual knowledge
and after the curing of all Servicer Defaults
which may have occurred, undertakes to perform
such duties and only such duties as are
specifically set forth in this Agreement, and
no implied covenants or duties shall be read
into this Agreement against the Trustee. If,
to the actual knowledge of a Responsible
Officer of the Trustee, a Servicer Default has
occurred (and such Servicer Default has not
been cured or waived), the Trustee shall
exercise such of the rights and powers vested
in it by this Agreement, and use the same
degree of care and skill in their exercise, as
a prudent person would exercise or use under
the circumstances in the conduct of his own
affairs; provided, however, that if the
Trustee shall assume the duties of the
Servicer pursuant to Section 8.05 or Section
10.02 hereof, the Trustee, in performing such
duties, shall use the degree of skill and
attention customarily exercised by a servicer
with respect to comparable receivables that it
services for itself or others.
(b) The Trustee, upon receipt of all
resolutions, certificates, statements,
opinions, reports, documents, orders or other
instruments that are specifically required to
be furnished to it pursuant to any provision
of this Agreement, shall, subject to Section
11.02, examine each of the foregoing to
determine whether they conform substantially
to the requirements of this Agreement.
(c) Subject to subsection (a) above, no
provision of this Agreement shall be construed
to relieve the Trustee of liability for its
own negligent action, its own negligent
failure to act or its own willful misconduct;
provided, however, that:
(i) the Trustee shall not be personally
liable for an error of judgment made in good
faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in
ascertaining the pertinent facts;
(ii) the Trustee shall not be charged with
knowledge of any Servicer Default or the
failure by the Servicer to comply with the
obligations of the Servicer referred to in
subsections (a), (b) and (c) of Section 10.01
hereof unless a Responsible Officer of the
Trustee obtains actual knowledge of such
failure;
(iii) the Trustee shall not be charged
with knowledge of an Early Amortization Event
unless a Responsible Officer of the Trustee
obtains actual knowledge thereof; and
(iv) the Trustee shall not be personally
liable with respect to any action taken,
suffered or omitted to be taken by it in good
faith in accordance with the direction of
Certificateholders aggregating more than 66-
2/3% of the Invested Amount of any Series
relating to the time, method and place of
conducting any proceeding for any remedy
available to the Trustee with respect to such
Series, or exercising any trust or power
conferred upon the Trustee with respect to
such Series, under this Agreement.
(d) The Trustee shall not be required to
expend or risk its own funds or otherwise
incur financial liability in the performance
of any of its duties hereunder or in the
exercise of any of its rights or powers, if
there is reasonable ground for believing that
the repayment of such funds or adequate
indemnity against such risk or liability is
not reasonably assured to it, and none of the
provisions contained in this Agreement shall,
in any event, require the Trustee to perform,
or be responsible for the manner of
performance of, any obligations of the
Servicer under this Agreement except during
such time, if any, as the Trustee shall be the
successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer
in accordance with the terms of this
Agreement. Notwithstanding the foregoing, the
Trustee is entitled to indemnification under
Section 7.03 and Section 8.03 hereof while
acting as Successor Servicer.
(e) Except as expressly provided in this
Agreement, the Trustee shall have no power to
vary the corpus of the Trust including the
power to (i) accept any substitute obligation
for a Receivable initially assigned to the
Trust under Section 2.01 or Section 2.05
hereof, (ii) add any other investment,
obligation or security to the Trust or (iii)
withdraw from the Trust any Receivables.
(f) If, to the actual knowledge of a
Responsible Officer of the Trustee, the
Transfer Agent and Registrar shall fail to
perform any obligation, duty or agreement in
the manner or on the day required to be
performed under this Agreement, the Trustee
shall be obligated promptly after a
Responsible Officer of the Trustee acquires
actual knowledge thereof to perform such
obligation, duty or agreement in the manner so
required.
(g) Notwithstanding any other provision
contained in this Agreement, the Trustee is
not acting as, and shall not be deemed to be,
a fiduciary for any Enhancement Provider in
its capacity as such or as a Beneficiary, and
the Trustee's sole responsibility with respect
to said parties shall be to perform those
duties with respect to said parties as are
specifically set forth herein and no implied
duties or obligations shall be read into this
Agreement against the Trustee with respect to
any such party.
Section 11.02. Certain Matters Affecting the
Trustee. Except as otherwise provided in
Section 11.01 hereof:
(a) the Trustee may conclusively rely on and
shall be fully protected in acting on, or in
refraining from acting in accordance with, any
resolution, Officers Certificate, certificate
of auditors or any other certificate,
statement, instrument, opinion, report,
notice, request, consent, order, appraisal,
bond or other paper or document believed by it
to be genuine and to have been signed or
presented to it pursuant to this Agreement by
the proper party or parties;
(b) the Trustee may consult with counsel and
any advice or Opinion of Counsel shall be full
and complete authorization and protection in
respect of any action taken or suffered or
omitted by it hereunder in good faith and in
accordance with such advice or Opinion of
Counsel;
(c) the Trustee shall be under no obligation
to exercise any of the rights or powers vested
in it by this Agreement or any Enhancement, or
to institute, conduct or defend any litigation
hereunder or in relation hereto, at the
request, order or direction of any of the
Certificateholders or any Enhancement
Provider, pursuant to the provisions of this
Agreement, unless such Certificateholders or
Enhancement Providers shall have offered to
the Trustee reasonable security or indemnity
against the costs, expenses and liabilities
which may be incurred therein or thereby;
(d) the Trustee shall not be personally
liable for any action taken, suffered or
omitted by it in good faith and believed by it
to be authorized or within the discretion or
rights or powers conferred upon it by this
Agreement or any Enhancement;
(e) the Trustee shall not be bound to make
any investigation into the facts of matters
stated in any resolution, certificate,
statement, instrument, opinion, report,
notice, request, consent, order, approval,
bond or other paper or document;
(f) the Trustee may execute any of the trusts
or powers hereunder or perform any duties
hereunder either directly or by or through
agents or attorneys or a custodian, and the
Trustee shall not be responsible for the
supervision of or any misconduct or negligence
on the part of any such agent, attorney or
custodian appointed with due care by it
hereunder except when such appointment was
made in the capacity of Successor Servicer;
(g) except as may be required by Section
11.01(a) hereof, the Trustee shall not be
required to make any initial or periodic
examination of any documents or records
related to the Receivables or the Accounts for
the purpose of establishing the presence or
absence of defects, the compliance by the
Depositor with its representations and
warranties or for any other purpose;
(h) whenever in the administration of this
Agreement the Trustee shall deem it desirable
that a matter be proved or established prior
to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may in the
absence of bad faith on its part, request and
conclusively rely upon all Officer's
Certificates received by it; and
(i) the right of the Trustee to perform any
discretionary act enumerated in this Agreement
or any Supplement not otherwise required in
the performance of its obligations hereunder
shall not be construed as a duty, and the
Trustee shall not be answerable for
performance of any such act.
Section 11.03. Trustee Not Liable for Recitals
in Certificates. The Trustee assumes no
responsibility for the correctness of the
recitals contained herein and in the
Certificates (other than the certificate of
authentication on the Certificates). Except
as set forth in Section 11.14 hereof, the
Trustee makes no representations as to the
validity or sufficiency of this Agreement or
of the Certificates (other than the
certificate of authentication on the
Certificates) or of any Receivable or related
document or any security interest of the Trust
therein. The Trustee shall not be accountable
for the use or application by the Depositor of
any of the Certificates or of the proceeds of
such Certificates, or for the use or
application of any funds paid to the Depositor
in respect of the Receivables or deposited in
or withdrawn from the Collection Account or
any Series Account. The Trustee shall have no
responsibility for filing any financing or
continuation statement in any public office at
any time or to otherwise perfect or maintain
the perfection of any security interest or
Lien granted to it hereunder (unless the
Trustee shall have become the Successor
Servicer) or to prepare or file any Securities
and Exchange Commission filing for the Trust
or to record this Agreement or any Supplement.
Section 11.04. Trustee May Own Certificates.
The Trustee, in its individual or any other
capacity, may become the owner or pledgee of
Investor Certificates and may deal with the
Depositor, the Servicer and any Enhancement
Provider with the same rights as it would have
if it were not the Trustee. The Trustee in
its capacity as Trustee shall exercise its
duties and responsibilities hereunder
independent of and without reference to its
investment, if any, in Certificates.
Section 11.05. The Servicer to Pay Trustee's
Fees and Expenses. The Servicer covenants and
agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to
receive reasonable compensation (which shall
not be limited by any provision of law in
regard to compensation of a Trustee of an
express trust) for all services rendered by
the Trustee in the execution of the trust
hereby created and in the exercise and
performance of any of the powers and duties
hereunder of the Trustee, and, subject to
Section 8.04 hereof, the Servicer will pay or
reimburse the Trustee (without reimbursement
from any Collection Account or and Series
Account) upon its request for all reasonable
expenses (including, without limitation,
expenses in connection with all notices or
other communications to Certificateholders),
disbursements and advances incurred or made by
the Trustee in accordance with any of the
provisions of this Agreement (including the
reasonable fees and expenses of its agents,
any co-trustee and counsel) except any such
expense, disbursement or advance as may arise
from its negligence, willful misconduct,
breach of fiduciary duty or bad faith and
except as provided in the second following
sentence. The Servicer's covenants to pay the
expenses, disbursements and advances provided
for in the preceding sentence shall survive
the termination of this Agreement or the
earlier removal or resignation of the Trustee.
If the Trustee is appointed Successor Servicer
pursuant to Section 10.02 hereof, the
provisions of this Section 11.05 shall not
apply to expenses, disbursements and advances
made or incurred by the Trustee in its
capacity as Successor Servicer, which shall be
paid with amounts distributed as Servicing Fee
or as otherwise agreed upon by the parties
hereto in writing. To the extent, if any,
that any federal, state or local taxes
(including income and franchise taxes) are
payable by the Trust, such taxes shall be
payable solely out of Trust Assets and not out
of the personal assets of the Trustee and the
Servicer shall not be obligated to pay the
amount of any such tax.
Section 11.06. Eligibility Requirements for
Trustee. The Trustee hereunder shall at all
times be a corporation organized and doing
business under the laws of the United States
of America or any state thereof authorized
under such laws to exercise corporate trust
powers, which shall be, or shall be directly
or indirectly wholly-owned by, an Eligible
Institution, and which shall have a combined
capital and surplus of at least $100,000,000
and be subject to supervision or examination
by Federal or state authority. If such
corporation publishes reports of condition at
least annually, pursuant to law or to the
requirements of the aforesaid supervising or
examining authority, then, for the purpose of
this Section 11.06, the combined capital and
surplus of such corporation shall be deemed to
be its combined capital and surplus as set
forth in its most recent report of condition
so published. In case at any time the Trustee
shall cease to be eligible in accordance with
the provisions of this Section 11.06, the
Trustee shall resign immediately in the manner
and with the effect specified in Section 11.07
hereof.
Section 11.07. Resignation or Removal of
Trustee.
(a) The Trustee may at any time resign and be
discharged from the trust hereby created by
giving written notice thereof to the Depositor
and the Servicer. Upon receiving such notice
of resignation, the Depositor shall promptly
appoint a successor trustee by written
instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee.
If no successor trustee shall have been so
appointed and have accepted appointment within
thirty (30) days after the giving of such
notice of resignation, the resigning Trustee
may petition any court of competent
jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Trustee shall cease to
be eligible in accordance with the provisions
of Section 11.06 hereof and shall fail to
resign after written request therefor by the
Servicer, or if at any time the Trustee shall
be legally unable to act, or shall be adjudged
a bankrupt or insolvent, or if a receiver of
the Trustee or of its property shall be
appointed, or any public officer shall take
charge or control of the Trustee or of its
property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then the Servicer may with the Consent of
Certificateholders (not to be unreasonably
withheld), but shall not be required to,
remove the Trustee and promptly appoint a
successor trustee by written instrument, in
duplicate, one copy of which instrument shall
be delivered to the Trustee so removed and one
copy to the successor trustee.
(c) Any resignation or removal of the Trustee
and appointment of a successor trustee
pursuant to any of the provisions of this
Section 11.07 shall not become effective until
acceptance of appointment by the successor
trustee as provided in Section 11.08 hereof.
(d) The Trustee shall not be liable for any
acts or omissions of any Successor Trustee.
Section 11.08. Successor Trustee.
(a) Any successor trustee appointed as
provided in Section 11.07 hereof shall
execute, acknowledge and deliver to the
Depositor and to its predecessor Trustee an
instrument accepting such appointment
hereunder, and thereupon the resignation or
removal of the predecessor Trustee shall
become effective and such successor trustee,
without any further act, deed or conveyance,
shall become fully vested with all the rights,
powers, duties and obligations of its
predecessor hereunder, with like effect as if
originally named as Trustee herein. The
predecessor Trustee shall deliver to the
successor trustee all documents or copies
thereof, at the expense of the Servicer, and
statements held by it hereunder; and the
Depositor and the predecessor Trustee shall
execute and deliver such instruments and do
such other things as may reasonably be
required for fully and certainly vesting and
confirming in the successor trustee all such
rights, power, duties and obligations. The
Servicer shall immediately give notice to each
Rating Agency and the Certificateholders upon
the appointment of a successor trustee.
(b) No successor trustee shall accept
appointment as provided in this Section 11.08
unless at the time of such acceptance such
successor trustee shall be eligible under the
provisions of Section 11.06 hereof and shall
have been approved by a Consent of
Certificateholders, which consent shall not be
unreasonably withheld.
(c) Upon acceptance of appointment by a
successor trustee as provided in this Section
11.08, such successor trustee shall mail
notice of such succession hereunder to all
Certificateholders at their addresses as shown
in the Certificate Register.
Section 11.09. Merger or Consolidation of
Trustee. Any Person into which the Trustee
may be merged or converted or with which it
may be consolidated, or any Person resulting
from any merger, conversion or consolidation
to which the Trustee shall be a party, or any
Person succeeding to all or substantially all
of the corporate trust business of the
Trustee, shall be the successor of the Trustee
hereunder without the execution or filing of
any paper or any further act on the part of
any of the parties hereto, provided such
corporation shall be eligible under the
provisions of Section 11.06 hereof, anything
herein to the contrary notwithstanding.
Section 11.10. Appointment of Co-Trustee or
Separate Trustee.
(a) Notwithstanding any other provisions of
this Agreement, at any time, for the purpose
of meeting any legal requirements of any
jurisdiction in which any part of the Trust
may at the time be located, the Trustee shall
have the power and may execute and deliver all
instruments to appoint one or more Persons to
act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all
or any part of the Trust, and to vest in such
Person or Persons, in such capacity and for
the benefit of the Certificateholders, such
title to the Trust, or any part thereof, and,
subject to the other provisions of this
Section 11.10, such powers, duties,
obligations, rights and trusts as the Trustee
may consider necessary or desirable. No co-
trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a
successor trustee under Section 11.06 hereof
and no notice to Certificateholders of the
appointment of any co-trustee or separate
trustee shall be required under Section 11.08
hereof.
(b) Every separate trustee and co-trustee
shall, to the extent permitted by law, be
appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and
obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it
being understood that such separate trustee or
co-trustee is not authorized to act separately
without the Trustee joining in such act),
except to the extent that under any law of any
jurisdiction in which any particular act or
acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in
which event such rights, powers, duties and
obligations (including the holding of title to
the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee,
but solely at the direction of the Trustee;
(ii) no trustee hereunder shall be personally
liable by reason of any act or omission of any
other trustee hereunder; and
(iii) the Trustee may at any time accept
the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing
given to the Trustee shall be deemed to have
been given to each of the then separate
trustees and co-trustees, as effectively as if
given to each of them. Every instrument
appointing any separate trustee or co-trustee
shall refer to this Agreement and the
conditions of this Article XI. Each separate
trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the
estates or property specified in its
instrument of appointment, either jointly with
the Trustee or separately, as may be provided
therein, subject to all the provisions of this
Agreement, specifically including every
provision of this Agreement relating to the
conduct of, affecting the liability of, or
affording protection to, the Trustee. Every
such instrument shall be filed with the
Trustee and a copy thereof given to the
Servicer.
(d) Any separate trustee or co-trustee may at
any time constitute the Trustee, its agent or
attorney-in-fact, with full power and
authority, to the extent not prohibited by
law, to do any lawful act under or in respect
of this Agreement on its behalf and in its
name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign
or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and
be exercised by the Trustee, to the extent
permitted by law, without the appointment of a
new or successor trustee.
Section 11.11. Tax Returns. Notwithstanding
Section 3.07 hereof, in the event that the
Trust shall be required to file tax returns,
the Servicer shall at its expense prepare or
cause to be prepared any tax returns required
to be filed by the Trust and, to the extent
possible, shall remit such returns to the
Trustee for signature at least five (5) days
before such returns are due to be filed. The
Trustee is hereby authorized to sign any such
return on behalf of the Trust. The Servicer,
in accordance with the terms of any
Supplement, shall prepare or shall cause to be
prepared all tax information required by law
to be distributed to Certificateholders. The
Trustee will distribute or cause to be
distributed such information to the
Certificateholders. The Trustee, upon
request, will furnish the Servicer with all
such information in the possession of the
Trustee as may be reasonably required in
connection with the preparation of all tax
returns of the Trust and shall, upon request,
execute such return. In no event shall the
Trustee be liable for any liabilities, costs
or expenses of the Trust or the
Certificateholders arising under any tax law,
including without limitation federal, state,
local or foreign income or excise taxes or any
other tax imposed on or measured by income (or
any interest or penalty or addition with
respect thereto or arising from a failure to
comply therewith).
Section 11.12. Trustee May Enforce Claims
Without Possession of Certificates. All
rights of action and claims under this
Agreement or the Certificates may be
prosecuted and enforced by the Trustee without
the possession of any of the Certificates or
the production thereof in any proceeding
relating thereto, and any such proceeding
instituted by the Trustee shall be brought in
its own name as trustee. Any recovery of
judgment shall, after provision for the
payment of the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the
ratable benefit of any Series of
Certificateholders in respect of which such
judgment has been obtained.
Section 11.13. Suits for Enforcement. If a
Servicer Default of which a Responsible
Officer of the Trustee has actual knowledge
shall occur and be continuing, the Trustee, in
its discretion may, subject to the provisions
of Section 10.01 hereof, proceed to protect
and enforce its rights and the rights of any
affected Certificateholders under this
Agreement by suit, action or proceeding in
equity or at law or otherwise, whether for the
specific performance of any covenant or
agreement contained in this Agreement or in
aid of the execution of any power granted in
this Agreement or for the enforcement of any
other legal, equitable or other remedy as the
Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of
the rights of the Trustee or any affected
Series of Certificateholders. Nothing herein
contained shall be deemed to authorize the
Trustee to authorize or consent to or accept
or adopt on behalf of any Certificateholder
any plan of reorganization, arrangement,
adjustment or composition affecting the
Certificates or the rights of any Holder
thereof, or authorize the Trustee to vote in
respect of the claim of any Certificateholder
in any such proceeding.
Section 11.14. Representations and Warranties
of Trustee. The Trustee represents and
warrants that:
(i) the Trustee is a banking corporation
organized, existing and in good standing under
the laws of the State of New York;
(ii) the Trustee has full power, authority and
right to execute, deliver and perform this
Agreement and each Supplement, and has taken
all necessary action to authorize the
execution, delivery and performance by it of
this Agreement and each Supplement; and
(iii) this Agreement and each Supplement
has been, or will be, as applicable, duly
executed and delivered by the Trustee and
constitutes a legal, valid and binding
obligation of the Trustee enforceable against
the Trustee in accordance with its terms
except as such enforceability may be limited
by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar
laws now or hereafter in effect affecting the
enforcement of creditors' rights generally and
except as such enforceability may be limited
by general principles of equity (whether
considered in a suit at law or in equity) and
the availability of equitable remedies.
Section 11.15. Maintenance of Office or
Agency. The Trustee will maintain at its
expense in The City of New York, an office or
offices or agency or agencies where notices
and demands to or upon the Trustee in respect
of the Certificates and this Agreement may be
served. The Trustee initially designates its
Corporate Trust Office as its office for such
purposes in New York. The Trustee will give
prompt written notice to the Servicer and to
Certificateholders of any change in the
location of the Certificate Register or any
such office or agency.
Section 11.16. Rights of Trustee Upon the
Occurrence of an Early Amortization Event..
Notwithstanding any provision to the contrary
herein or in any Series Supplement, upon the
occurrence of any Early Amortization Event, in
no event shall the Trustee be required to
exercise any of its rights or powers on behalf
of any or all of the Certificateholders
(including, but not limited to, the
institution of any legal proceedings or any
action in connection therewith), whether or
not requested by such Certificateholders,
unless the Trustee has first been indemnified
to its reasonable satisfaction against all
expenses, claims, liabilities, losses, damages
or injuries before exercising any such right
or power. This Section 11.16 shall not be
modified, supplemented or amended without the
prior written consent of the Trustee.
ARTICLE XII
TERMINATION
SECTION 12.01. Termination of Trust. The
Trust and the respective obligations and
responsibilities of the Depositor, the
Servicer and the Trustee created hereby (other
than the obligation of the Trustee to make
payments to Certificateholders as hereafter
set forth) shall terminate, except with
respect to the duties described in Section
7.03, Section 8.03 and Section 12.02(b)
hereof, upon the earlier of (such date the
Trust Termination Date), (i) the day
following the Distribution Date on which the
Invested Amount for all Series and the
Exchangeable Amount (as defined in the
applicable Supplements) is zero (ii) the time
provided in Section 9.02(c) hereof, and (iii)
twenty one (21) years less one day after the
death of the last survivor of any of the
descendants living on the date hereof of
Xxxxxx X. Xxxxxxx, father of Xxxx Xxxxxxxxxx
Xxxxxxx. The Servicer shall give the Rating
Agencies prompt notice of the termination of
the Trust.
Section 12.02. Final Distribution.
(a) The Servicer shall give the Trustee at
least thirty (30) days prior notice of the
Distribution Date on which the respective
Certificateholders of any Series or Class or
the holder of the Exchangeable Certificate may
surrender their respective Certificates for
payment of the final distribution on and
cancellation of such Certificates (or, in the
event of a final distribution resulting from
the application of Section 2.03 or Section
9.01 hereof, notice of such Distribution Date
promptly after the Servicer has determined
that a final distribution will occur, if such
determination is made less than thirty (30)
days prior to such Distribution Date). Such
notice shall be accompanied by an Officer's
Certificate setting forth the information
specified in Section 3.05 hereof covering the
period during the then-current calendar year
through the date of such notice. Except as
otherwise provided in any Supplement, not
later than the fifth day of the month in which
the final distribution in respect of such
Series or Class or Exchangeable Certificate is
payable to Certificateholders or the holder of
the Exchangeable Certificate, as applicable,
the Trustee shall provide notice to the
respective Certificateholders specifying (i)
the date upon which final payment thereof will
be made upon presentation and surrender of the
related Certificates at the office or offices
therein designated, (ii) the amount of any
such final payment and (iii) that the Record
Date otherwise applicable to such payment date
is not applicable, payments being made only
upon presentation and surrender of the related
Certificates at the office or offices therein
specified. The Trustee shall give such notice
to the Transfer Agent and Registrar and the
Rating Agencies at the time such notice is
given to the respective Certificateholders.
(b) Notwithstanding a final distribution to
the Certificateholders of any Series or Class
or the holder of the Exchangeable Certificate
(or the termination of the Trust), except as
otherwise provided in this subsection (b) and
in any Supplement, all funds then on deposit
in the Collection Account and any Series
Account allocated to such Certificateholders
or the Holder of the Exchangeable Certificate
shall continue to be held in trust for the
benefit of such Certificateholders or the
Holder of the Exchangeable Certificate, as
applicable, and the Trustee shall pay such
funds to such Certificateholders upon
surrender of the related Certificates (and any
excess shall be paid in accordance with the
terms of any Enhancement Agreement). Except
as provided in any Supplement, in the event
that all such Certificateholders shall not
surrender their Certificates for cancellation
within six months after the date specified in
the notice from the Trustee described in
subsection (a) above, the Trustee shall give a
second notice to the remaining such
Certificateholders to surrender their
Certificates for cancellation and receive the
final distribution with respect thereto. If
within one year after the second notice all
such Certificates shall not have been
surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an
agent to take appropriate steps, to contact
the remaining such Certificateholders
concerning surrender of their Certificates,
and the cost thereof shall be paid out of the
funds in the Collection Account or, if
applicable, any Series Account held for the
benefit of such Certificateholders. The
Trustee shall pay to the Depositor any monies
held by it for the payment of principal or
interest that remain unclaimed for two years.
After payment to the Depositor,
Certificateholders entitled to the money must
look to the Depositor for payment as general
creditors unless an applicable abandoned
property law designates another Person.
(c) In the event that (i) the Invested Amount
with respect to any Series is greater than
zero on its Termination Date or (ii) the
Exchangeable Amount is greater than zero on
the Termination Date with respect to the
Exchangeable Certificate, in each case after
giving effect to deposits and distributions
otherwise to be made on such Termination Date,
the Trustee will use its best efforts to sell
or cause to be sold on such Termination Date
Receivables (or interests therein) in an
amount equal to the interest in the Pool
Balance represented by such Certificates. The
net proceeds (the Termination Proceeds) from
such sale shall be immediately deposited into
the Collection Account for the benefit of the
Certificateholders of such Series and the
holder of the Exchangeable Certificate and
Subordinated Certificate, as applicable. The
Termination Proceeds shall be allocated and
distributed to the Holders of Investor
Certificates of such Series and the holder of
the Exchangeable Certificate, as applicable,
in accordance with the terms of the applicable
Supplement.
Section 12.03. Depositor's Termination Rights.
Upon termination of the Trust pursuant to
Section 12.01 hereof and the surrender of the
Exchangeable Certificate, the Trustee shall
transfer, assign and convey to the Depositor
or its designee, without recourse,
representation or warranty, all right, title
and interest of the Trust in the Receivables,
whether then existing or thereafter created,
all monies due or to become due and all
amounts received with respect thereto and all
proceeds thereof, except for amounts held by
the Trustee pursuant to Section 12.02(b)
hereof, and all of the Depositor's rights,
remedies, powers and privileges with respect
to such Receivables under the Receivables
Purchase Agreement. The Trustee shall execute
and deliver such instruments of transfer and
assignment, in each case without recourse, as
shall be reasonably requested by the Depositor
to vest in the Depositor or its designee all
right, title and interest that the Trust had
in all such property.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Amendment.
(a) This Agreement or any Supplement may be
amended from time to time by the Servicer, the
Depositor, the Trustee and (if the Seller is
not the Servicer) the Seller, upon
satisfaction of the Rating Agency Condition,
without the consent of any of the
Certificateholders:
(i) to add to the covenants of the Depositor
for the benefit of the Certificateholders, or
to surrender any right or power herein
conferred upon the Depositor; or
(ii) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other
provision herein or in the Certificates
provided, that such action shall not, as
evidenced by an Opinion of Counsel for the
Depositor, addressed and delivered to the
Trustee, adversely affect in any material
respect the interests of any Certificateholder
or the Holder of the Exchangeable Certificate.
Notwithstanding anything contained herein to
the contrary, the Trustee may at any time and
from time to time amend, modify or supplement
the form of Distribution Date Statement.
(b) This Agreement or any Supplement may also
be amended from time to time 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 each 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 this Agreement or any Supplement or of
modifying in any manner the rights of the
Certificateholders; provided, however, that no
such amendment shall:
(i) reduce in any manner the amount or delay
the timing of any distributions to be made to
Certificateholders or deposits of amounts to
be so distributed;
(ii) change the definition or the manner of
calculating the interest of any
Certificateholder without the consent of each
affected Certificateholder;
(iii) reduce the amount available under
any Enhancement without the consent of each
affected Certificateholder;
(iv) reduce the aforesaid percentage required
to consent to any such amendment without the
consent of each affected Certificateholder; or
(v) adversely affect the rating of any Series
or Class by any Rating Agency without the
consent of the Holders of Investor
Certificates of such Series or Class
evidencing more than 50% of the aggregate
unpaid principal amount of the Investor
Certificates of such Series or Class.
Any amendment to be effected
pursuant to this subsection (b) shall be
deemed to adversely affect all outstanding
Series, other than any Series with respect to
which such action shall not, as evidenced by
an Opinion of Counsel for the Depositor,
addressed and delivered to the Trustee,
adversely affect in any material respect the
interests of any Holder of Investor
Certificates of such Series. The Trustee may,
but shall not be obligated to, enter into any
such amendment which affects the Trustee's
rights, duties or immunities under this
Agreement or otherwise.
(c) Promptly after the execution of any such
amendment or consent, the Trustee shall
furnish notification of the substance of such
amendment to each Certificateholder and the
Servicer shall furnish notification of the
substance of such amendment to each Rating
Agency and each Enhancement Provider.
(d) It shall not be necessary for the consent
of Certificateholders under this Section 13.01
to approve the particular form of any proposed
amendment, but it shall be sufficient if such
consent shall approve the substance thereof.
The manner of obtaining such consents and of
evidencing the authorization of the execution
thereof by the Certificateholders shall be
subject to such reasonable requirements as the
Trustee may prescribe.
(e) Notwithstanding anything in this Section
13.01 to the contrary, no amendment may be
made to this Agreement or any Supplement that
would adversely affect in any material respect
the interests of any Enhancement Provider
without the consent of such Enhancement
Provider.
(f) Notwithstanding the foregoing, and
subject to clause (c) above, any amendment may
be made without satisfaction of the Rating
Agency Condition with the Consent of
Certificateholders of each affected Series if
the notice proposing such amendment specifies
that the Rating Agency Condition will not be
satisfied and that the rating of the affected
Series may be downgraded or withdrawn as a
result thereof.
(g) Any Supplement executed in accordance
with the provisions of Section 6.03 hereof
shall not be considered an amendment to this
Agreement for the purposes of this Section
13.01.
Section 13.02. Protection of Right, Title and
Interest to Trust.
(a) The Servicer shall cause this Agreement,
all amendments hereto and/or all financing
statements and continuation statements and any
other necessary documents covering the
Certificateholders and the Trustee's right,
title, and interest in and to the Trust to be
promptly recorded, registered and filed, and
at all times to be kept recorded, registered
and filed, all in such manner and in such
places as may be required by law fully to
preserve and protect the right, title and
interest of the Certificateholders and the
Trustee hereunder to all property comprising
the Trust. The Servicer shall deliver to the
Trustee file-stamped copies of, or filing
receipts for, any document recorded,
registered or filed as provided above, as soon
as available following such recording,
registration or filing. The Depositor shall
cooperate fully with the Servicer in
connection with the obligations set forth
above and will execute any and all documents
reasonably required to fulfill the intent of
this Section 13.02(a).
(b) Within thirty (30) days after the
Depositor or the Servicer makes any change in
its name, identity or corporate structure that
would make any financial statement or
continuation statement filed in accordance
with subsection (a) of this Section 13.02
seriously misleading within the meaning of
Section 9-402(7) of the UCC as in effect in
California, the Depositor shall give the
Trustee notice of any such change and shall
file such financing statements or amendments
as may be necessary to continue the perfection
of the Trust's security interest in the
Receivables and the proceeds thereof.
(c) The Depositor and the Servicer shall give
the Trustee prompt written notice of any
relocation of any office from which it
services Receivables or keeps records
concerning the Receivables or of its principal
executive office and whether, as a result of
such relocation, the applicable provisions of
the UCC would require the filing of any
amendment of any previously filed financing or
continuation statement or of any new financing
statement and shall file such financing
statements or amendments as may be necessary
to perfect or to continue the perfection of
the Trust's ownership interest or security
interest in the Receivables and the proceeds
thereof. The Depositor and the Servicer shall
at all times maintain each office from which
it services Receivables and its principal
executive office within the United States of
America.
(d) The Servicer shall deliver to the Trustee
and any Enhancement Provider, upon the
execution and delivery of each amendment of
this Agreement or any Supplement, an Opinion
of Counsel to the effect that such amendment
was duly authorized, executed and delivered in
compliance with Section 13.01.
Section 13.03. Limitation on Rights of
Certificateholders.
(a) The death or incapacity of any
Certificateholder shall not operate to
terminate this Agreement or the Trust, nor
shall such death or incapacity entitle such
Certificateholders' legal representatives or
heirs to claim an accounting or to take any
action or commence any proceeding in any court
for a partition or winding-up of the Trust,
nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any
of them.
(b) No Certificateholder shall have any right
to vote (except as expressly provided in this
Agreement) or in any manner otherwise control
the operation and management of the Trust, or
the obligations of the parties hereto, nor
shall anything herein set forth, or contained
in the terms of the Certificates, be construed
so as to constitute the Certificateholders
from time to time as partners or members of an
association, nor shall any Certificateholder
be under any liability to any third person by
reason of any action taken by the parties to
this Agreement pursuant to any provision
hereof.
(c) No Holder of Investor Certificates shall
have any right by virtue of any provisions of
this Agreement to institute any suit, action
or proceeding in equity or at law upon or
under or with respect to this Agreement,
unless the Holders of Investor Certificates
evidencing more than 50% of the aggregate
unpaid principal amount of all Investor
Certificates (or, with respect to any such
action, suit or proceeding that does not
relate to all Series, 50% of the aggregate
unpaid principal amount of the Investor
Certificates of all Series to which such
action, suit or proceeding relates) shall have
made a request to the Trustee to institute
such action, suit or proceeding in its own
name as Trustee hereunder and shall have
offered to the Trustee such reasonable
indemnity as the Trustee may require against
the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee,
for sixty (60) days after such request and
offer of indemnity, shall have neglected or
refused to institute any such action, suit or
proceeding.
No Holder of an Exchangeable
Certificate shall have any right by virtue of
any provisions of this Agreement to institute
any suit, action or proceeding in equity or at
law upon or under or with respect to this
Agreement, unless such Holder may be adversely
affected but for the institution of any such
suit, action or proceeding and shall have made
a request to the Trustee to institute such
action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as the
Trustee may require against the costs,
expenses and liabilities to be incurred
therein or thereby, and the Trustee, for sixty
(60) days after such request and offer of
indemnity, shall have neglected or refused to
institute any such action, suit or proceeding.
It is understood and intended, and
expressly covenanted by each Certificateholder
with every other Certificateholder and the
Trustee, that no one or more
Certificateholders shall have any right in any
manner whatever by virtue or by availing
itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the
rights of the holders of any other of the
Certificates, or to obtain or seek to obtain
priority over or preference to any other such
Certificateholder, or to enforce any right
under this Agreement, except in the manner
herein provided and for the equal, ratable and
common benefit of all Certificateholders
except as otherwise expressly provided in this
Agreement. For the protection and enforcement
of the provisions of this Section 13.03, each
and every Certificateholder and the Trustee
shall be entitled to such relief as can be
given either at law or inequity.
Section 13.04. No Petition. The Servicer, the
Seller (if it is no longer the Servicer) and
the Trustee, by entering into this Agreement,
each Holder of Investor Certificates, by
accepting an Investor Certificate, the holder
of the Exchangeable Certificate, by accepting
the Exchangeable Certificate or the pledge of
the Exchangeable Certificate, as the case may
be, and any Successor Servicer and each other
Beneficiary, by accepting the benefits of this
Agreement, hereby covenants and agrees that
they will not at any time institute or join in
instituting against the Depositor any
bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or
other proceedings under any United States
Federal or state bankruptcy or similar law.
Section 13.05. Governing Law. This agreement
shall be construed in accordance with the laws
of the State of New York, without reference to
its conflict of law provisions, and the
obligations, rights and remedies of the
parties hereunder shall be determined in
accordance with such laws.
Section 13.06. Notices.
(a) All demands, notices, instructions,
directions and communications (collectively,
Notices) under this Agreement shall be in
writing (including telegraphic, telecopy,
telex or cable communications) and shall be
deemed to have been duly given if personally
delivered or mailed by registered mail, return
receipt requested, or telegraphed, telecopied,
telexed, cabled or delivered, to:
(i) in the case of Depositor, 0 Xxxxx Xxxx
Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx Xxxxxxxx, Esq., facsimile
number (000) 000-0000;
(ii) in the case of the Servicer, 0 Xxxxx Xxxx
Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx, facsimile number
(000) 000-0000; and
(iii) in the case of the Trustee, Bankers
Trust Company, Four Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Corporate Trust &
Agency Group, Structured Finance Team,
facsimile number (000) 000-0000;
or as to each party, at such other address as
shall be designated by such party in a written
notice to each other party.
(b) Any Notice required or permitted to be
given to a Certificateholder shall be given by
first-class mail, postage prepaid, at the
address of such Certificateholder as shown in
the Certificate Register. Any Notice so
mailed within the time prescribed in this
Agreement shall be conclusively presumed to
have been duly given, whether or not the
Certificateholder receives such Notice.
(c) The Trustee shall provide written notice
to the Rating Agencies of the events listed in
Section 2.04(b), 2.05(m) and (n), 3.03(b),
9.01(e), 10.01(a) and 10.01(e) promptly upon
receipt by a Responsible Officer of the
Trustee of written notice of the occurrence of
such events.
Section 13.07. Severability of Provisions. If
any one or more of the covenants, agreements,
provisions or terms of this Agreement shall
for any reason whatsoever be held invalid,
then such covenants, agreements, provisions or
terms shall be deemed severable from the
remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way
affect the validity or enforceability of the
other provisions of this Agreement or of the
certificates or rights of the
Certificateholders.
Section 13.08. Assignment. Notwithstanding
anything to the contrary contained herein,
except as provided in Section 8.04 hereof,
this Agreement may not be assigned by the
Servicer.
Section 13.09. Certificates Nonassessable and
Fully Paid. It is the intention of the
parties to this Agreement that no
Certificateholder shall be personally liable
for obligations of the Trust, that the
interests in the Trust represented by the
Investor Certificates and the Exchangeable
Certificate shall be nonassessable for any
losses or expenses of the Trust or for any
reason whatsoever and that Investor
Certificates and the Exchangeable Certificate
upon authentication thereof by the Trustee are
and shall be deemed fully paid.
Section 13.10. Further Assurances. Each of
the Depositor, the Servicer and the Trustee
agrees to do and perform, from time to time,
any and all acts and to execute any and all
further instruments required or reasonably
requested by one or more of the other parties
hereto more fully to effect the purposes of
this Agreement, including the execution of any
financing statements or continuation
statements relating to the Receivables for
filing under the provisions of the UCC of any
applicable jurisdiction.
Section 13.11. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in
exercising, on the part of the Trustee, the
Certificateholders, the Depositor or the
Servicer, as the case may be, any right,
remedy, power or privilege under this
Agreement shall operate as a waiver thereof;
nor shall any single or partial exercise of
any right, remedy, power or privilege under
this Agreement preclude any other or further
exercise thereof or the exercise of any other
right, remedy, power or privilege. The
rights, remedies, powers and privileges
provided under this Agreement are cumulative
and not exhaustive of any rights, remedies,
powers and privileges provided by law.
Section 13.12. Counterparts. This Agreement
may be executed in two or more counterparts
(and by different parties on separate
counterparts), each of which shall be an
original, but all of which together shall
constitute one and the same instrument.
Section 13.13. Third-Party Beneficiaries.
This Agreement will inure to the benefit of
and be binding upon the parties hereto, the
Certificateholders and the other Beneficiaries
and their respective successors and permitted
assigns. Except as otherwise expressly
provided in this Agreement, no other Person
will have any right or obligation hereunder.
Section 13.14. Actions by Certificateholders.
Any request, demand, authorization, direction,
notice, consent, waiver or other act by a
Certificateholder shall bind such
Certificateholder and every subsequent Holder
of any Certificate issued upon the
registration of transfer of the Certificates
of such Certificateholder or in exchange
therefor or in lieu thereof in respect of
anything done or omitted to be done by the
Trustee or the Servicer in reliance thereof,
whether or not notation of such action is made
upon any such Certificate.
Section 13.15. Rule 144A Information. For so
long as any of the Investor Certificates of
any Series or Class are restricted
securities within the meaning of Rule
144(a)(3) under the 1933 Act, each of the
Depositor, the Trustee, the Servicer and any
Enhancement Providers agree to cooperate with
each other to provide to any
Certificateholders of such Series or Class and
to any prospective purchaser of Investor
Certificates designated by such
Certificateholder, upon the request of such
Certificateholder or prospective purchaser,
any information required to be provided to
such holder or prospective purchaser to
satisfy the condition set forth in Rule
144A(d))4) under the 1933 Act.
Section 13.16. Merger and Integration. Except
as specifically stated otherwise herein, this
Agreement, the Supplements and the Receivables
Purchase Agreement sets forth the entire
understanding of the parties relating to the
subject matter hereof, and all prior
understandings, written or oral, are
superseded by this Agreement. This Agreement
may not be modified, amended, waived, or
supplemented except as provided herein.
Section 13.17. Headings. The headings herein
are for purposes of reference only and shall
not otherwise affect the meaning or
interpretation or any provision hereof.
IN WITNESS WHEREOF, the Depositor,
the Servicer and the Trustee have caused this
Pooling and Servicing Agreement to be duly
executed by their respective officers as of
the day and year first above written.
GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION, Depositor
By: \s\ Xxxxxxx Xxxxx
Title: President
GOTTSCHALKS INC., Servicer
By: \s\ Xxx Xxxxxxxxx
Title: President
BANKERS TRUST COMPANY, Trustee
By: \s\ Xxxxxxx Xxxxxx
Title: Vice President
EXHIBIT A
FORM OF EXCHANGEABLE CERTIFICATE
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 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
EXCHANGEABLE CERTIFICATE
This certifies that GOTTSCHALKS
CREDIT RECEIVABLES CORPORATION (the
"Exchangeable Certificateholder") is the
registered owner of a fractional undivided
interest not allocated to the Investors'
Interest or the interest of the Holders of the
Subordinated Certificates, if any, in certain
assets of a trust (the "Trust") created
pursuant to the Pooling and Servicing
Agreement, dated as of ________ __, 1999 (the
"Pooling and Servicing Agreement"), as
amended, supplemented or otherwise modified
from time to time, 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 respective meanings provided for such
terms in the Pooling and Servicing Agreement.
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 Recoveries), (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. By acceptance hereof, the
Exchangeable Certificateholder assents to and
is bound by the terms, provisions and
conditions of the Pooling and Servicing
Agreement, as such may be amended,
supplemented or otherwise modified from time
to time. This Certificate does not purport to
summarize the Pooling and Servicing Agreement
and reference is made to the Pooling and
Servicing Agreement 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 (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 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 Exchangeable
Certificateholder or such Exchangeable
Certificateholder's attorney-in-fact, and duly
authorized in writing with such signature
guaranteed, and thereupon one or more new
Exchangeable 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 by the Servicer,
the Depositor and the Trustee, 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 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
Internal Revenue Code) organized in a
jurisdiction having prohibitions on
transactions with such governmental plan
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. By accepting
and holding this Certificate, the Holder
hereof shall be deemed to have represented and
warranted that it is not an ERISA Plan and
that this Certificate was not acquired with
the assets 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
Name: \s\ Xxxxxxx Xxxxx
Title: President
CERTIFICATE OF AUTHENTICATION
This is the Gottschalks Credit Card
Master Trust Exchangeable Certificate referred
to in the Pooling and Servicing Agreement.
BANKERS TRUST COMPANY, not in its individual
capacity, but solely in its capacity as
Trustee
Name: \s\ Xxxxxxx Xxxxxx
Title: Vice President
Dated:
EXHIBIT B
[RESERVED]
EXHIBIT C
OFFICER'S CERTIFICATE
GOTTSCHALKS INC.
Officer's Certificate
We, the undersigned, each duly
authorized officers of Gottschalks Inc., a
Delaware corporation (the "Servicer"), DO
HEREBY CERTIFY that:
1. This certificate is furnished pursuant to
Section 3.05 of the Pooling and Servicing
Agreement, dated as of even date herewith (the
"Pooling and Servicing Agreement"), among
Gottschalks Credit Receivables Corporation, a
Delaware corporation, as depositor, the
Servicer, and Bankers Trust Company, a New
York banking corporation, as trustee.
Capitalized terms used but not otherwise
defined herein shall have the respective
meanings assigned to such terms in the Pooling
and Servicing Agreement.
2. The Servicer is, as of the date hereof,
the servicer under the Pooling and Servicing
Agreement.
3. The undersigned are duly authorized by
the Servicer to execute and deliver this
Certificate to the Trustee.
4. A review of the activities of the
Servicer during the calendar year ended
December __, 200_ and of its performance under
the Pooling and Servicing Agreement was
conducted under our supervision.
5. Based on such review, the Servicer has,
to the best of our knowledge, performed in all
material respects its obligations under the
Pooling and Servicing Agreement and there has
been no default in the performance of any such
obligations [except as set forth in paragraph
6 below].
6. [The following is a description of each
default in the performance of the Servicer's
obligations under the provisions of the
Pooling and Servicing Agreement known to us to
have been made by the Servicer during the
calendar year ended December __, 200_, which
sets forth in detail the (i) nature of each
such default, (ii) the action taken by the
Servicer, if any, to remedy each such default
and (iii) the current status of each default.]
IN WITNESS WHEREOF, the undersigned
have hereunto set their hands this ____ day of
______________, ____.
Name:\s\ Xxxxxxx Xxxxx
Title: Executive VP/CFO
EXHIBIT E
FORM OF REASSIGNMENT
REASSIGNMENT No. ____ OF
RECEIVABLES, dated as of ____________, ___
(this "Reassignment"), among GOTTSCHALKS
CREDIT RECEIVABLES CORPORATION, a Delaware
corporation (the "Depositor"), GOTTSCHALKS
INC., a Delaware corporation (the "Servicer"),
and BANKERS TRUST COMPANY, a New York banking
corporation, not in its individual capacity,
but solely in its capacity as trustee (the
"Trustee"). Capitalized terms used but not
otherwise defined herein shall have the
respective meanings provided for such terms in
the Pooling and Servicing Agreement.
W I T N E S S E T H:
WHEREAS, the Depositor, the Servicer
and the Trustee are parties to the Pooling and
Servicing Agreement, dated as of ________ __,
1999 (the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and
Servicing Agreement, the Depositor desires to
remove all Receivables arising in certain
designated Accounts (the "Removed Accounts")
from the Trust and to cause the Trustee to
reconvey the Receivables arising in such
Removed Accounts, whether now existing or
hereafter created, from the Trust to the
Depositor; and
WHEREAS, the Trustee is willing to
accept such designation and to reconvey the
Receivables arising in the Removed Accounts
subject to the terms and conditions hereof;
NOW, THEREFORE, the Depositor, the
Servicer and the Trustee hereby agree as
follows:
1. Designation of Removed Accounts.
Attached hereto as Exhibit 1 is a true and
complete list of all Removed Accounts
specifying for each such Removed Account, as
of the Removal Notice Date, its account
number, the aggregate amount of Receivables
outstanding in such Removed Account and the
aggregate amount of Principal Receivables in
such Removed Account.
2. Conveyance of Receivables. The Trustee
does hereby sell, transfer, assign, set over
and otherwise convey, without recourse or
warranty of any kind whatsoever, to the
Depositor, all of the Trust's right, title and
interest in, to and under the Receivables
owned by the Trust at the close of business on
the Removal Date now existing and hereafter
created in the Removed Accounts, all monies
due or to become due and all amounts received
with respect thereto and all proceeds thereof
(including "proceeds", as defined in Section
9306 of the UCC as in effect in the State of
California, and Recoveries).
3. Representations and Warranties of the
Depositor. The Depositor hereby represents
and warrants to the Trustee, on behalf of the
Trust, as of the date of this Reassignment and
as of the Removal Date, that:
(a) the Depositor believes that the process
used to select the Removed Accounts listed on
Schedule 1 hereto (x) is not materially
adverse to the interests of the
Certificateholders, and (y) was conducted on a
random basis;
(b) the Depositor reasonably believes that
the removal of the Removed Account from the
Trust will not result in the occurrence of an
Early Amortization Event;
(c) after giving effect to the removal of
Removed Accounts, the Series Pool Balance
shall not be less than 5% in excess of the sum
of the Required Series Pool Balance and the
Required Exchangeable Certificate Amount; and
(d) after giving effect to the proposed
action, there will be no material adverse
change in the average yield on the Pool
Balance, average age of Accounts remaining
within the Pool or the rate of delinquencies
experienced by the Pool, in each case as a
result of the proposed action.
4. Governing Law. THIS REASSIGNMENT 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.
IN WITNESS WHEREOF, the undersigned
have caused this Reassignment to be duly
executed and delivered by their respective
duly authorized officers on the day and year
first above written.
GOTTSCHALKS CREDIT RECEIVABLES
CORPORATION, as Depositor
Name: \s\ Xxxxxxx Xxxxx
Title: President
GOTTSCHALKS INC., as Servicer
Name: \s\ Xxx Xxxxxxxxx
Title: President
BANKERS TRUST COMPANY, not in its
individual capacity, but solely in its
capacity as Trustee
Name: \s\ Xxxxxxx Xxxxxx
Title: Vice President
EXHIBIT F
OFFICER'S CERTIFICATE
GOTTSCHALKS CREDIT RECEIVABLES CORPORATION
I, the undersigned, _______________
of Gottschalks Credit Receivables Corporation,
a Delaware corporation (the "Company"), DO
HEREBY CERTIFY that:
1. This certificate is furnished
pursuant to Section 2.08(d)(ii) of the Pooling
and Servicing Agreement, dated as of March 1,
1999 (the "Pooling and Servicing Agreement"),
among the Company, as depositor, Gottschalks
Inc., a Delaware corporation, as servicer and
Bankers Trust Company, a New York banking
corporation, as trustee. Capitalized terms
used but not otherwise defined herein shall
have the respective meanings assigned to such
terms in the Pooling and Servicing Agreement.
2. The process used to select the
Supplemental Accounts listed in the notice,
dated ________ __, ____, delivered pursuant to
Section 2.08(d) of the Pooling and Servicing
Agreement, (x) is not materially adverse to
the interests of the Certificateholders, and
(y) was conducted on a random basis.
IN WITNESS WHEREOF, I have hereunto
set my hand this __ day of ____________, ____.
Name:
Title:
EXHIBIT G
OFFICER'S CERTIFICATE
GOTTSCHALKS CREDIT RECEIVABLES CORPORATION
I, the undersigned, _______________
of Gottschalks Credit Receivables Corporation,
a Delaware corporation (the "Company"), DO
HEREBY CERTIFY that:
1. This certificate is furnished
pursuant to Section 2.06(b)(ii) of the Pooling
and Servicing Agreement, dated as of ________
__, 1999 (the "Pooling and Servicing
Agreement"), among the Company, as depositor,
Gottschalks Inc., a Delaware corporation, as
servicer and Bankers Trust Company, a New York
banking corporation, as trustee. Capitalized
terms used but not otherwise defined herein
shall have the respective meanings assigned to
such terms in the Pooling and Servicing
Agreement.
2. After giving effect to the
removal of Removed Accounts, the Series Pool
Balance shall not be less than 5% in excess of
the sum of the Required Series Pool Balance
and the Required Exchangeable Certificate
Amount.
3. The process used to select the
Removed Accounts listed in the notice, dated
________ __, ____, delivered pursuant to
Section 2.06(b)(ii) of the Pooling and
Servicing Agreement (x) is not materially
adverse to the interests of the
Certificateholders, and (y) was conducted on a
random basis.
4. The Company reasonably believes
that the removal of the Removed Account from
the Trust will not result in the occurrence of
an Early Amortization Event.
5. After giving effect to the
proposed action, there will be no material
adverse change in the average yield on the
Pool Balance, average age of Accounts
remaining within the Pool or the rate of
delinquencies experienced by the Pool, in each
case as a result of the proposed action.
IN WITNESS WHEREOF, I have hereunto
set my hand this __ day of ____________, ____.
Name:
Title:
EXHIBIT H
FORM OF REPRESENTATION LETTER
[date]
Gottschalks Credit Receivables Corporation
0 Xxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Bankers Trust Company
as Trustee
Xxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Reference is made to that certain
[describe purchase agreement or assignment]
(the "Certificate Purchase Agreement") between
[name of transferor] ("Transferor") and [name
of transferee] ("Transferee") pursuant to
which Transferee, upon the terms and
conditions set therein set forth, purchased a
[ %] Fixed Base Certificate, Series 1999-
1, in the original face amount of $[amount]
(the "Trust Certificate"). Capitalized terms
used herein and not defined have the meaning
given in that certain Pooling and Servicing
Agreement, dated as of March 1_, 1999, among
Gottschalks Credit Receivables Corporation
("Depositor"), Gottschalks Inc. ("Service")
and Bankers Trust Company ("Trustee") as
amended and modified through the date hereof.
In connection with such purchase,
Transferee represents and warrants that (i) it
is acquiring its Trust Certificate solely for
its own account (or for accounts as to which
to exercise investment discretion) for the
purpose of investment only and not with a view
to distribution in violation of the Securities
Act of 1933 (the "Act"), and will not sell or
otherwise transfer such Trust Certificate in
the absence of registration under the Act or
an exemption therefrom, provided that the
disposition of its property shall at all time
be and remain within its control and (ii) it
is a corporation, partnership or other entity
having such knowledge and experience in
financial and business matters as to be
capable of evaluating the merits and risks of
an investment in its Trust Certificate and it
is (or any account for which it is purchasing
referred to in (i) above is) an institutional
accredited investor within the meaning of Rule
501 of the Act able to bear the economic risk
of investment in its Trust Certificate,
including a complete loss, while maintaining
adequate means of providing for its current
needs and foreseeable contingencies.
Sincerely yours,
[name of
transferee]
By:
Name:
Title:
EXHIBIT H-1
FORM OF SECURITIES ACT LEGEND
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 OF THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS
AND CONDITIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT AND THE SERIES ______
SUPPLEMENT TO THE POOLING AND SERVICING
AGREEMENT UNDER WHICH THIS CERTIFICATE IS
ISSUED (COPIES OF WHICH ARE AVAILABLE FROM THE
TRUSTEE UPON REQUEST).
EXHIBIT H-2
FORM OF ERISA LEGEND
THIS CERTIFICATE HAS NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION IN RELIANCE ON
EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND
SUCH STATE OR FOREIGN SECURITIES LAWS. THE
CERTIFICATES ARE ELIGIBLE FOR PURCHASE
PURSUANT TO RULE 144A UNDER THE SECURITIES
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 SECURITIES ACT, (ii) IN A TRANSACTION
(OTHER THAN A TRANSACTION IN CLAUSE (iv)
BELOW) EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES 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 SECURITIES 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 SECURITIES
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 SECURITIES 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.
EXHIBIT J
RECEIVABLES PURCHASE AGREEMENT
EXHIBIT K
FORM OF DEPOSIT ACCOUNT AGREEMENT
________ __, 1999
[Name of Local Bank]
Re: Acct. No.: (the Local
Deposit Account)
Dear :
Reference is hereby made to (a) that
certain Receivables Purchase Agreement, dated
as of ________ __, 1999 (the "Receivables
Purchase Agreement"), between Gottschalks
Inc., a Delaware corporation ("Gottschalks"),
and Gottschalks Credit Receivables
Corporation, a Delaware corporation ("GCRC");
(b) that certain Pooling and Servicing
Agreement, dated as of ________ __, 1999 (the
"Pooling and Servicing Agreement"), among
GCRC, as depositor, Gottschalks, as servicer
and Bankers Trust Company, a New York banking
corporation, as trustee (the "Trustee"); and
(c) that certain ____-_ Supplement to the
Pooling and Servicing Agreement, dated as of
________ __, ____ (the "____-1 Supplement")
among GCRC, Gottschalks and the Trustee
(collectively, the "Transaction Documents").
Capitalized terms used but not otherwise
defined herein shall have the meanings
provided for such terms in the Pooling and
Servicing Agreement.
In connection with the above-
referenced transactions, Gottschalks will act
as the servicer of Receivables that have been
sold to the Trust for the benefit of the
Beneficiaries. During the normal course of
its servicing operation, individual store
locations owned by Gottschalks will receive In-
Store Payments. Under the terms of the
Transaction Documents, Gottschalks is required
to deposit each day all Collections received
in respect of In-Store Payments in a deposit
account maintained by a local bank (the "Local
Deposit Account").
GCRC has established account number
[number] with your institution to serve as the
Local Deposit Account. This letter agreement
(this "Letter Agreement") defines certain
rights and obligations of the parties hereto
in respect of the Local Deposit Account
maintained with your institution.
GCRC hereby appoints [name of bank]
as a Local Deposit Account Bank to maintain
the Local Deposit Account. [Name of bank]
hereby agrees to maintain the Local Deposit
Account and serve as Local Deposit Account
Bank on the terms and subject to the
conditions set forth in this Letter Agreement.
1.1. The Local Deposit Account shall at
all times be maintained in the name of the
Trustee on behalf of the Trust. The Trustee
on behalf of the Trust shall have exclusive
dominion and control over, and the sole right
of withdrawal from, the Local Deposit Account.
The Trustee on behalf of the Trust shall
possess all right, title and interest in all
of the items from time to time on deposit in
the Local Deposit Account and all proceeds
thereof.
1.2. The Local Deposit Account Bank
shall, at the end of each Business Day,
transfer, in same day funds, all available
funds on deposit (other than amounts retained
for returned checks in the ordinary course of
business) in the Local Deposit Account to
Bankers Trust Company, Four Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention Corporate
Trust & Agency Group, Structured Finance Team,
ABA 000000000, Account [account number] for
deposit to the Gottschalks Credit Card Master
Trust Collection Account [number] (the
"Collection Account"). The Local Deposit
Account Bank shall, immediately thereafter,
provide the Trustee with telephonic advice of
such transfer. The Local Deposit Account Bank
shall, each Business Day, deliver to
Gottschalks all returned checks previously
deposited in the Local Deposit Account at X.X.
Xxx 00000, Xxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Returned Check Desk.
1.3. The Local Deposit Account Bank shall
respond promptly to all reasonable inquiries
made by Gottschalks in respect of the Local
Deposit Account. The Local Deposit Account
shall furnish Gottschalks and the Trustee with
monthly statements, in the form typical for
the Local Deposit Account Bank, listing all
amounts deposited in, withdrawn from, and
transferred in and/or out of the Local Deposit
Account during such monthly period.
1.4. For purposes of this Letter
Agreement, any officer of the Trustee, and any
other employee of the Trustee designated by an
officer thereof, shall be authorized to act,
and to give instructions and notice, on behalf
of the Trustee and the Local Deposit Account
Bank shall be entitled to rely on such act,
instruction or notice without further inquiry.
Gottschalks acknowledges that the Local
Deposit Account Bank shall incur no liability
to Gottschalks as a result of any action taken
pursuant to an instruction given by or on
behalf of the Trustee.
1.5. The fees for the services of the
Local Deposit Account Bank shall be mutually
agreed upon between Gottschalks and the Local
Deposit Account Bank and paid by Gottschalks.
Neither GCRC nor the Trustee on behalf of the
Trust shall have any responsibility or
liability for the payment of any such fee.
1.6. The Local Deposit Account Bank may
perform any of its duties hereunder by or
through its officers, employees or agents and
shall be entitled to rely upon the advice of
counsel as to its duties. The Local Deposit
Account Bank shall not be liable to the
Trustee or Gottschalks for any action taken or
omitted to be taken by it in good faith, nor
shall the Local Deposit Account Bank be
responsible to the Trustee or Gottschalks for
the consequences of any oversight or error of
judgment or be answerable to the Trustee or
Gottschalks for the same unless the oversight
or error of judgment is attributable to its
negligence or willful misconduct.
1.7. The Local Deposit Account Bank may
resign at any time as Local Deposit Account
Bank hereunder by delivery to the Trustee and
Gottschalks of written notice of resignation
not less than 30 days prior to the effective
date of such resignation. The Trustee may
close the Local Deposit Account at any time
upon delivery of notice to the Local Deposit
Account Bank at its address appearing below.
This Letter Agreement shall terminate upon
receipt of such notice of closing, or delivery
of such notice of resignation and the
expiration of the 30 day notice period, except
that the Local Deposit Account Bank shall
immediately transfer to the Collection Account
all funds, if any, then on deposit in, or
otherwise to the credit of, the Local Deposit
Account (other than amounts retained for
returned checks in the ordinary course of
business).
1.8. All notices and communications
hereunder shall be in writing (except where
telephonic instructions or notices are
authorized herein) and shall be deemed to have
been received and shall be effective on the
day on which delivered (including delivery by
telecopy) (i) in the case of the Trustee, to
Bankers Trust Company, Four Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention Corporate
Trust & Agency Group, Structured Finance Team,
(ii) in the case of the Local Deposit Account
Bank, to [name of bank] at the address listed
above and (iii) in the case of Gottschalks, to
Gottschalks Inc., 7 River Park Place East,
P.O. Box 26920, Xxxxxx, Xxxxxxxxxx 00000, to
the attention of Xxxxxxx X. Xxxxx, Senior Vice
President and Chief Financial Officer.
1.9. The Local Deposit Account Bank shall
not assign or transfer any of its rights or
obligations hereunder (other than to the
Trustee) without the prior written consent of
the Trustee. This Letter Agreement may be
amended only by a written instrument executed
by Gottschalks, GCRC, the Trustee and the
Local Deposit Account Bank, acting by their
respective officers thereunto duly authorized.
The Local Deposit Account Bank hereby
irrevocably waives (so long as any Investor
Certificate remains outstanding) any rights to
setoff against, or otherwise deduct from, any
funds held in any Local Deposit Account for
any indebtedness or other claim owed by GCRC,
Gottschalks or any other person or entity to
the Local Deposit Account Bank. To the extent
that the Local Deposit Account Bank ever has
any such rights, it hereby expressly
subordinates all such rights to the rights of
the Trustee. THIS LETTER AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA.
1.10. This Letter Agreement (i) shall
inure to the benefit of, and be binding upon,
Gottschalks, GCRC, the Trustee, the Local
Deposit Account Bank and their respective
successors and assigns and (ii) may be
executed in two or more counterparts, each of
which shall be deemed an original but all of
which together shall constitute one and the
same instrument.
1.11. Bankers Trust Company, in its
capacity as trustee under the Pooling and
Servicing Agreement, is entering into this
Letter Agreement solely as trustee and not in
its individual capacity and in no case
whatsoever shall Bankers Trust Company be
personally liable on, or for any loss in
respect of, any representations, warranties,
agreements or obligations of the Trustee or
Gottschalks hereunder.
GOTTSCHALKS INC.
By: \s\ Xxx Xxxxxxxxx
Title: President
BANKERS TRUST COMPANY, not in its
individual capacity, but solely in
its capacity as Trustee
By: \s\ Xxxxxxx Xxxxxx
Title: Vice President
[Name of Bank]
By:
Title:
SCHEDULE I
LIST OF ACCOUNTS
The list of all Accounts specifying
for each Account, (i) its account number (ii)
the aggregate amount of Receivables
outstanding in such Account, and (iii) the
aggregate amount of Principal Receivables in
such Account has been delivered in the form of
computer tape. Such tape is incorporated
herein by this reference.
SCHEDULE II
COLLECTION ACCOUNT
BANKERS TRUST COMPANY:
ABA No. 000000000
Account No. [0000000]
Gottschalks Credit Card Master
Trust Collection Account No. 11873
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE III
List of Local Deposit Accounts
UNION BANK OF CALIFORNIA: Account No. 00000000
Location 0-01
Payment Processor (Pre-encoded)
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
BANK OF AMERICA NT & SA: 14821-019-19
0000 X. Xxxx Xxxxxx
Xxxxxx, XX 00000
ARTICLE I
DEFINITIONS
Section 1.01. Definitions 1
Section 1.02. Other Definitional Provisions. 19
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables 20
Section 2.02. Acceptance by Trustee 21
Section 2.03. Representations and Warranties
of the Depositor Relating to the
Depositor and this Agreement 22
Section 2.04. Representations and Warranties
of the Depositor Relating to the
Receivables; Reassignment 25
Section 2.05. Covenants of the Depositor 27
Section 2.06. Removal of Accounts 30
Section 2.07. Discount Option 31
Section 2.08. Block Period; Supplemental
Accounts 32
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and
Other Matters Relating to the
Servicer 33
Section 3.02. Servicing Compensation 35
Section 3.03. Representations, Warranties
and Covenants of the Servicer 35
Section 3.04. Reports and Records for the
Trustee 39
Section 3.05. Annual Servicer's Certificate 39
Section 3.06. Independent Public Accountants'
Servicing Report 39
Section 3.07. Tax Treatment 41
Section 3.08. Notices to the Seller 41
Section 3.09. Adjustments 41
Section 3.10. Fidelity Bond and Errors and
Omissions Insurance 42
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.01. Rights of Certificateholders 42
Section 4.02. Establishment of the Collection
Account 42
Section 4.03. Collections Arrangements 43
Section 4.04. Collection Allocations 43
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.01. Distributions. 44
Section 5.02. Reports and Statements to
Certificateholders. 44
ARTICLE VI
THE CERTIFICATES
Section 6.01. The Certificates. 45
Section 6.02. Authentication of Certificates 45
Section 6.03. New Issuances 46
Section 6.04. Registration of Transfer and
Exchange of Certificates 48
Section 6.05. Mutilated, Destroyed, Lost or
Stolen Certificates 50
Section 6.06. Persons Deemed Owners 50
Section 6.07. Access to List of Registered
Certificateholders' Names and
Addresses 51
ARTICLE VII
OTHER MATTERS RELATING TO THE DEPOSITOR
Section 7.01. Liability of the Depositor 51
Section 7.02. Limitation on Liability of
the Depositor 51
Section 7.03. Depositor Indemnification 52
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.01. Liability of the Servicer 52
Section 8.02. Limitation on Liability of
the Servicer 53
Section 8.03. Servicer Indemnification of
the Trust and the Trustee 53
Section 8.04. Merger or Consolidation of,
or Assumption of, the
Obligations of the Servicer 54
Section 8.05. The Servicer Not to Resign 54
Section 8.06. Access to Certain Information
Regarding the Receivables; Meet and
Confer 54
Section 8.07. Delegation of Duties 55
Section 8.08. Examination of Records 55
ARTICLE IX
EARLY AMORTIZATION EVENTS
Section 9.01. Early Amortization Events 55
Section 9.02. Additional Rights Upon the
Occurrence of Certain Events 56
ARTICLE X
SERVICER DEFAULTS
Section 10.01. Servicer Defaults 57
Section 10.02. Trustee to Act; Appointment
of Successor 59
ARTICLE XI
THE TRUSTEE
Section 11.01. Duties of Trustee 60
Section 11.02. Certain Matters Affecting
the Trustee 62
Section 11.03. Trustee Not Liable for
Recitals in Certificates 63
Section 11.04. Trustee May Own Certificates 63
Section 11.05. The Servicer to Pay Trustee's
Fees and Expenses 64
Section 11.06. Eligibility Requirements for
Trustee 64
Section 11.07. Resignation or Removal of
Trustee 64
Section 11.08. Successor Trustee 65
Section 11.09. Merger or Consolidation of
Trustee 65
Section 11.10. Appointment of Co-Trustee or
Separate Trustee 66
Section 11.11. Tax Returns 67
Section 11.12. Trustee May Enforce Claims
Without Possession of
Certificates 67
Section 11.13. Suits for Enforcement 67
Section 11.14. Representations and Warranties
of Trustee 68
Section 11.15. Maintenance of Office or
Agency 68
Section 11.16. Rights of Trustee Upon the
Occurrence of an Early
Amortization Event. 68
ARTICLE XII
TERMINATION
Section 12.01. Termination of Trust 68
Section 12.02. Final Distribution 69
Section 12.03. Depositor's Termination Rights 70
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment 70
Section 13.02. Protection of Right, Title
and Interest to Trust 72
Section 13.03. Limitation on Rights of
Certificateholders 73
Section 13.04. No Petition 74
Section 13.05. Governing Law 74
Section 13.06. Notices 74
Section 13.07. Severability of Provisions 75
Section 13.08. Assignment 75
Section 13.09. Certificates Nonassessable
and Fully Paid 75
Section 13.10. Further Assurances 75
Section 13.11. No Waiver; Cumulative Remedies 75
Section 13.12. Counterparts 75
Section 13.13. Third-Party Beneficiaries 75
Section 13.14. Actions by Certificateholders 76
Section 13.15. Rule 144A Information 76
Section 13.16. Merger and Integration 76
Section 13.17. Headings 76
EXHIBITS
EXHIBIT A FORM OF EXCHANGEABLE
CERTIFICATE
EXHIBIT B [RESERVED]
EXHIBIT C OFFICER'S CERTIFICATE
EXHIBIT D [RESERVED]
EXHIBIT E FORM OF REASSIGNMENT
EXHIBIT F OFFICER'S CERTIFICATE
EXHIBIT G OFFICER'S CERTIFICATE
EXHIBIT H FORM OF REPRESENTATION LETTER
EXHIBIT H-1 FORM OF SECURITIES ACT LEGEND
EXHIBIT H-2 FORM OF ERISA LEGEND
SCHEDULE I LIST OF ACCOUNTS
EXHIBIT J RECEIVABLES PURCHASE AGREEMENT
EXHIBIT K FORM OF DEPOSIT ACCOUNT
AGREEMENT
SCHEDULE II COLLECTION ACCOUNT
SCHEDULE III LIST OF LOCAL DEPOSIT ACCOUNTS
