Amendment No. 1 to Pooling and Servicing Agreement and Series 1999-1 Supplement by Gottschalks Credit Receivables Corporation, Gottschalks Inc., and Bankers Trust Company

Summary

This amendment, dated November 16, 2000, is between Gottschalks Credit Receivables Corporation (Depositor), Gottschalks Inc. (Servicer), and Bankers Trust Company (Trustee). It modifies the Pooling and Servicing Agreement and the Series 1999-1 Supplement, originally dated March 1, 1999. The amendment updates definitions, clarifies calculation methods for allocation percentages, strengthens certain representations and warranties, and addresses the handling of investment earnings. It becomes effective upon consent from a majority of certificate holders and satisfaction of other specified conditions.

EX-10.47 4 0004.txt LA1:909134.10 GOTTSCHALKS CREDIT CARD MASTER TRUST AMENDMENT NO. 1 to POOLING AND SERVICING AGREEMENT and SERIES 1999-1 SUPPLEMENT each dated as of March 1, 1999 and each by and among GOTTSCHALKS CREDIT RECEIVABLES CORPORATION, as Depositor GOTTSCHALKS INC., as Servicer and BANKERS TRUST COMPANY as Trustee November 16, 2000 THIS AMENDMENT NO. 1, dated as of November 16, 2000 (this "Amendment"), by and among GOTTSCHALKS CREDIT RECEIVABLES CORPORATION, a Delaware corporation, as Depositor (the "Depositor"), GOTTSCHALKS INC., a Delaware corporation, as Servicer (the "Servicer"), and BANKERS TRUST COMPANY, a New York banking corporation, as Trustee (the "Trustee"), is made for the purpose of amending the Pooling and Servicing Agreement dated as of March 1, 1999 (the "Pooling and Servicing Agreement"), between the Depositor, Servicer and Trustee and the Series 1999-1 Supplement thereto (the "Series 1999-1 Supplement"). RECITALS WHEREAS, the parties hereto wish to enter into this Amendment in order to amend and supplement certain provisions of the Pooling and Servicing Agreement and the Series 1999-1 Supplement relating to the calculation of Series Allocation Percentages, the amplification of certain representations and warranties made by the Depositor, the application of certain net investment earnings on amounts held in the Collection Account and to remove an ambiguity in the Pooling and Servicing Agreement concerning the making of amendments to the Pooling and Servicing Agreement and supplements thereto; and WHEREAS, the parties hereto intend this Amendment to be effective only upon the delivery of a consent by holders of more than 50% of the aggregate unpaid principal amount of the Investor Certificates of Series 1999-1 (which constitutes the only outstanding Series of Certificates as of the date hereof), which consent is being delivered on the date hereof, and the satisfaction of each of the other conditions precedent to amendment pursuant to Section 13.01(b)(ii) of the Pooling and Servicing Agreement; NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows: Section 1. Definitions. For all purposes of this Amendment, unless otherwise defined herein, all capitalized terms used herein shall have the meanings attributed to them in the Pooling and Servicing Agreement. Section 2. Amendment to Definitions in the Pooling and Servicing Agreement. Section 1.01 of the Pooling and Servicing Agreement is hereby amended by the replacement of the following enumerated definitions of "Adjusted Invested Amount" and "Series Allocation Percentage" with the following definitions: "Adjusted Invested Amount" shall mean, as of any date, the Required Series Pool Balance specified in the related Supplement as of such date; provided that, if so specified in the related Supplement, the Adjusted Invested Amount for any Series may be calculated as a different amount for purposes of allocating Finance Charge Collections, Principal Collections or Default Amounts as between Series of Certificates and depending on whether the date of determination is during the Revolving Period, Controlled Amortization Period (as defined in the related Supplement) or Early Amortization Period for such Series, except that in each case any change to the Adjusted Invested Amount that results from an increase or decrease in the outstanding balance of any Certificate will affect allocation percentages only from the date of such change. "Series Allocation Percentage" shall mean for each Series as of any date of determination, the ratio (expressed as a percentage) of (i) the Adjusted Invested Amount for such Series to (ii) the sum of the Adjusted Invested Amounts for all outstanding Series of Certificates, in each case determined based on the type of allocation being made and the period during which such allocation is being made. Section 3. Amendment of Section 2.04(a) of Pooling and Servicing Agreement. (a) Section 2.04(a) is amended by the addition thereto of a clause (v) that reads as follows: "(v) Each Receivable conveyed hereunder was originated by Gottschalks, is being serviced by Gottschalks and was sold by Gottschalks to the Depositor under the Receivables Purchase Agreement in compliance with all laws, rules, regulations and orders applicable to Receivables originated by Gottschalks, including, without limitation, rules and regulations relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy, where failure to so comply could reasonably be expected to have a material adverse effect on the amount of Collections thereunder." (b) The last sentence of Section 2.04(a)(iii) is hereby replaced by the following sentence: "If this Agreement constitutes the grant of a security interest to the Trust in such property, upon the filing of the financing statement described in Section 2.01 and in the case of the Receivables hereafter created and proceeds thereof, upon such creation, the Trust shall have a first priority perfected security interest in such property (subject to Section 9306 of the UCC as in effect in the State of California), free and clear of any Lien of any Person claiming through or under the Depositor or any of its Affiliates, except for Permitted Liens." Section 4. Amendment of Section 4.02 of Pooling and Servicing Agreement. The third sentence of the Second paragraph of Section 4.02 is hereby replaced by the following sentence: Each Business Day, all interest and other investment income (net of losses and investment expenses) earned on funds on deposit in the Collection Account will be released to the Depositor, unless the Depositor has notified the Trustee in writing that it elects to cause such amounts to be retained in the Collection Account and to be available, as of the related Determination Date and Distribution Date, for allocation and application as Finance Charge Collections for purposes of the definition of "Deficiency Amount" in each Supplement and for purposes of making corresponding distributions or applications on such related Distribution Date. Section 5. Amendment to Definitions in the Series 1999-1 Supplement. Section 2.1 of the Series 1999-1 Supplement is hereby amended by the replacement of the enumerated definitions of "Allocation Day," "Investor Default Amount," "Investor Investment Proceeds," "Portfolio Yield," "Required Series Pool Balance," "Series 1999-1 Allocation Percentage," "Series Default Amount," "Series Finance Charge Collections" and "Series Principal Collections" with the following definitions: "Allocation Day" means each day during a Collection Period that Gottschalks is open for business (which currently excludes only Easter, Thanksgiving and Christmas); provided that Gottschalks will immediately notify the Trustee and each Certificateholder in writing of any change with respect to the days on which Gottschalks is open for business. "Default Amount" shall mean, (i) with respect to any Allocation Day during a Collection Period, the aggregate amount of Receivables recognized as becoming Defaulted Receivables since the beginning of the preceding Allocation Day but prior to the beginning of the current Allocation Day and (ii) with respect to any Collection Period, means the aggregate amount of Receivables recognized as becoming Defaulted Receivables during such Collection Period. "Investor Default Amount" shall mean, (i) with respect to any Allocation Day during a Collection Period, an amount equal to the product of (a) the Default Amount recognized by the Servicer on such Allocation Day or, as required by the context, an amount equal to the sum of such amount plus such amount for each prior Allocation Day during such Collection Period, (b) the Floating Allocation Percentage for the Related Collection Period and (c) the Series 1999- 1 Allocation Percentage applicable to the allocation of Default Amounts on such Allocation Day, and (ii) with respect to any Distribution Date, an amount equal to the aggregate amount allocated as Investor Default Amounts on each day during the related (or, as applicable, such) Collection Period. "Investor Investment Proceeds" shall mean, with respect to any Distribution Date, all interest and other investment earnings (net of losses and investment expenses) on funds on deposit in the Series Accounts as of the related Determination Date, together with an amount equal to the product of (i) the Series 1999-1 Allocation Percentage applicable to the allocation of Finance Charge Collections as of such Determination Date and (ii) the amount of interest and other investment earnings (net of losses and investment expenses) on funds held in the Collection Account credited as of such Determination Date pursuant to Section 4.02 of the Pooling and Servicing Agreement (to the extent that the Depositor has directed the Trustee to retain such amounts rather than releasing them to the Depositor as permitted by Section 4.02 of the Pooling and Servicing Agreement). "Portfolio Yield" means, with respect to any Collection Period, the annualized percentage equivalent of a fraction (a) the numerator of which is Series Finance Charge Collections for such Collection Period less Series Default Amounts for such Collection Period and (b) the denominator of which is the average of the Series Pool Balance as of the open of business on each day during such Collection Period. "Required Series Pool Balance" shall mean, as of any date of determination, the sum of (a) the Fixed Base Invested Amount on such date and (b) the Subordinated Invested Amount on such date; except that for purposes of determining the Series 1999-1 Allocation Percentage with respect to the allocation of Principal Collections, during a Collection Period that commences after the termination of the Revolving Period, the Required Series Pool Balance on such date of determination shall be equal to the Required Series Pool Balance calculated as of the first day of the last Collection Period to commence prior to the termination of the Revolving Period. "Series Default Amount" shall mean, (i) with respect to any Allocation Day during a Collection Period, an amount equal to the product of (a) the Default Amount recognized by the Servicer on such Allocation Day and (b) the Series 1999-1 Allocation Percentage applicable to the allocation of Default Amounts on such Allocation Day, and (ii) with respect to any Distribution Date or Collection Period, an amount equal to the aggregate amount allocated as Series Default Amounts on each day during the related (or, as applicable, such) Collection Period. "Series Finance Charge Collections" shall mean, with respect to any Allocation Day during a Collection Period, the product of (i) the aggregate amount of Finance Charge Collections received since the beginning of the preceding Allocation Day but prior to the beginning of the current Allocation Day and (ii) the Series 1999-1 Allocation Percentage applicable to the allocation of Finance Charge Collections on such Allocation Day. "Series 1999-1 Allocation Percentage" shall mean the Series Allocation Percentage for Series 1999-1 as calculated in accordance with the Agreement. "Series Principal Collections" shall mean, with respect to any Allocation Day during a Collection Period, the product of (i) the aggregate amount of Principal Collections received since the beginning of the preceding Allocation Day but prior to the beginning of the current Allocation Day and (ii) the Series 1999-1 Allocation Percentage applicable to the allocation of Principal Collections on such Allocation Day. Section 6. Amendment to Section 4.1(b) of the the Series 1999-1 Supplement. The clause in the first sentence of Section 4.1(b) which currently reads, "At the beginning of each Business Day (an "Allocation Day")," is replaced with the following: "At the beginning of each Allocation Day,". Section 7. Amendment to Section 13.01 of the Pooling and Servicing Agreement. The following clause is added at the end of 13.01(b)(i) of the Pooling and Servicing Agreement: "without the consent of each affected Certificateholder." The parties hereto agree that the absence of the foregoing clause results in an ambiguity about the scope of amendments that are permitted with the consent of affected Certificateholders pursuant to Section 13.01(b)(ii), (iii), (iv) and (v), one or more of which, although permitted by Section 13.01(b)(ii), (iii), (iv) and (v), might appear to violate 13.01(b)(i). In particular, amendments contemplated by this Amendment which would be permitted by Section 13.01(b)(ii) arguably might contravene Section 13.01(b)(i). As a result, Section 13.01(b)(i) is inconsistent with the lead-in language of Section 13.01(b) and the language of clauses (ii), (iii), (iv) and (v) of Section 13.01(b). [Remainder of the page intentionally left blank.] IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused this Amendment to be duly executed by their respective officers as of the day and year first above written. GOTTSCHALKS CREDIT RECEIVABLES CORPORATION, Depositor By: /s/ Michael Geele Title: President & CEO GOTTSCHALKS INC., Servicer By: /s/ James Famalette Title: President & CEO BANKERS TRUST COMPANY, Trustee By:/s/ FRANCO TALAVERA Title: ASSISTANT VICE PRESIDENT