SAILS PLEDGE AGREEMENT
dated as of
January 29, 2002
among
GSB INVESTMENTS CORP.,
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
and
CREDIT SUISSE FIRST BOSTON CORPORATION, as Agent
TABLE OF CONTENTS
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PAGE
SECTION 1. The Security Interests..............................................................1
SECTION 2. Definitions.........................................................................3
SECTION 3. Representations and Warranties of Pledgor...........................................5
SECTION 4. Certain Covenants of Pledgor........................................................7
SECTION 5. Administration of the Collateral and Valuation of the
Securities..........................................................................8
SECTION 6. Income and Voting Rights in Collateral.............................................13
SECTION 7. Remedies upon Acceleration Events..................................................14
SECTION 8. Miscellaneous......................................................................17
SECTION 9. Termination of Pledge Agreement....................................................18
SECTION 10. Netting and Set-off................................................................18
PLEDGE AGREEMENT
THIS AGREEMENT is made as of this 29st day of January, 2002 among GSB
INVESTMENTS CORP, a Delaware corporation ("Pledgor"), CREDIT SUISSE FIRST
BOSTON CORPORATION, as agent (in such capacity, the "Agent") hereunder, and
CREDIT SUISSE FIRST BOSTON INTERNATIONAL ("Secured Party").
WHEREAS, Pledgor owns shares of common stock, par value $1.00 per
share, of Golden State Bancorp Inc., a Delaware corporation (the "Issuer"), or
security entitlements in respect thereof (the "Common Stock");
WHEREAS, Pledgor, Secured Party and the Agent have entered into the
Securities Contract (as defined herein) pursuant to which Pledgor and Secured
Party have agreed to sell and purchase shares of Common Stock at the time and
on the terms set forth therein;
WHEREAS, it is a condition to the obligations of Secured Party under
the Securities Contract that Pledgor and Secured Party enter into this
Agreement;
NOW, THEREFORE, in consideration of their mutual covenants contained
herein and to secure the performance by Pledgor of Pledgor's obligations under
the Securities Contract and the observance and performance of the covenants
and agreements contained herein and in the Securities Contract, the parties
hereto, intending to be legally bound, hereby mutually covenant and agree as
follows:
SECTION 1. The Security Interests. In order to secure the full and
punctual observance and performance of the covenants and agreements of Pledgor
contained herein and in the Securities Contract:
(a) At the time of delivery of the Initial Pledged Items as provided
in Section 1(b), Pledgor hereby assigns and pledges to Secured Party, and
grants to Secured Party, security interests in and to, and a lien upon and
right of set-off against, and transfers to Secured Party, as and by way of a
security interest having priority over all other security interests, with
power of sale, all of Pledgor's right, title and interest in and to (i) the
Initial Pledged Items; (ii) all additions to and substitutions for the Initial
Pledged Items (including, without limitation, any securities, instruments or
other property delivered or pledged pursuant to Section 4(a), 5(b) or 5(j))
(such additions and substitutions, the "Additions and Substitutions"); (iii)
all income, proceeds and collections received or to be received, or derived or
to be derived, now or any time hereafter (whether before or after the
commencement of any proceeding under applicable bankruptcy, insolvency or
similar law, by or against Pledgor, with respect to Pledgor) from or in
connection with the Initial Pledged Items or the Additions and Substitutions
(excluding Ordinary Cash Dividends but including, without limitation, (A) any
shares of capital stock issued by the Issuer in respect of any Common Stock
constituting Collateral or any cash, securities or other property distributed
in respect of or exchanged for any Common Stock or Government Securities
constituting Collateral (other than Ordinary Cash Dividends), or into which
any such Common Stock is converted in connection with any Reorganization Event
or otherwise, and any security entitlements in respect of any of the
foregoing, (B) any obligation of Secured Party to return any rehypothecated
Collateral pursuant to Section 5(i) and (C) any amounts paid or assets
delivered to Pledgor by Secured Party in respect of dividends paid or
distributions (other than Ordinary Cash Dividends) made on shares of Common
Stock constituting Collateral that have been rehypothecated in accordance with
Section 5(i)); (iv) the Collateral Account and all securities and other
financial assets (each as defined in Section 8-102 of the UCC), including the
Initial Pledged Items and the Additions and Substitutions, and other funds,
property or assets from time to time held therein or credited thereto; and (v)
all powers and rights now owned or hereafter acquired under or with respect to
the Initial Pledged Items or the Additions and Substitutions (such Initial
Pledged Items, Additions and Substitutions, proceeds, collections, powers,
rights, Collateral Account and assets held therein or credited thereto being
herein collectively called the "Collateral"). Secured Party shall have all of
the rights, remedies and recourses with respect to the Collateral afforded a
secured party by the UCC, in addition to, and not in limitation of, the other
rights, remedies and recourses afforded to Secured Party by this Agreement.
(b) Immediately upon payment of the Purchase Price, Pledgor shall
deliver to the Custodian in pledge hereunder Eligible Collateral consisting of
a number of shares of Common Stock equal to the Base Amount as of the Closing
Date (the "Initial Pledged Items"), in the manner provided in Section 5(c).
Upon delivery of the Purchase Price, Pledgor shall cause to be delivered to
Secured Party any documents as Secured Party may reasonably request to
evidence that the Initial Pledged Items have been delivered free and clear
from any Lien or Transfer Restrictions to which such Initial Pledged Items may
have been subject prior to the delivery of the Purchase Price.
(c) In the event that the Issuer at any time issues in respect of any
Common Stock constituting Collateral hereunder, or comprising financial assets
underlying security entitlements constituting Collateral hereunder, any
additional or substitute shares of capital stock of any class, Pledgor shall
immediately pledge and deliver to Secured Party in accordance with Section
5(c) all such shares or security entitlements in respect thereof as additional
Collateral hereunder.
(d) The Security Interests are granted as security only and shall not
subject Secured Party to, or transfer or in any way affect or modify, any
obligation or liability of Pledgor or the Issuer with respect to any of the
Collateral or any transaction in connection therewith.
(e) The parties hereto expressly agree that all rights, assets and
property at any time held in or credited to the Collateral Account shall be
treated as financial assets (as defined in Section 8-102 of the UCC).
SECTION 2. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in the Securities
Contract. As used herein, the following words and phrases shall have the
following meanings:
"Additions and Substitutions" has the meaning provided in Section
1(a).
"Authorized Officer" of Pledgor means any officer as to whom Pledgor
shall have delivered notice to Secured Party that such officer is authorized
to act hereunder on behalf of Pledgor.
"Borrow Costs" has the meaning provided in Section 5(i).
"Collateral" has the meaning provided in Section 1(a).
"Collateral Account" has the meaning provided in Section 5(c).
"Collateral Event of Default" means, the occurrence of either of the
following: (i) at any time, failure of the Collateral to include, as Eligible
Collateral, (A) at least the Maximum Deliverable Number of shares of Common
Stock or (B) if Pledgor shall have elected to substitute Government Securities
for Share Collateral in accordance with Section 5(j) , Government Securities
having a value (as determined by the Calculation Agent) equal to 150% of the
Market Value at such time of the Maximum Deliverable Number of shares of
Common Stock at such time (provided that, in the case of this clause (B), the
Calculation Agent shall promptly notify Pledgor of its determination of any
such failure and (x) if such notice is received by Pledgor prior to 11:00
a.m., New York City time, on any Business Day, such failure shall not be a
Collateral Event of Default if remedied prior to the close of business on such
Business Day and (y) if such notice is received by Pledgor on a day that is
not a Business Day or after 11:00 a.m., New York City time, on any Business
Day, such failure shall not be a Collateral Event of Default if remedied prior
to the close of business on the Business Day immediately following such day)
or (ii) at any time, failure of the Security Interests to constitute valid and
perfected security interests in all of the Collateral, subject to no prior or
equal Lien, and, with respect to any Collateral consisting of securities or
security entitlements (each as defined in Section 8-102 of the UCC), as to
which Secured Party has Control, or, in each case, assertion of such by
Pledgor in writing.
"Control" means "control" as defined in Section 8-106 and Section
9-106 of the UCC.
"Custodian" means The Bank of New York, or any other custodian
appointed by Secured Party and identified to Pledgor.
"Default Settlement Date" has the meaning provided in Section 7(a).
"Eligible Collateral" means Common Stock or, if Pledgor shall have
elected to substitute Government Securities for Share Collateral in accordance
with Section 5(j), Government Securities; provided that Pledgor has good and
marketable title thereto, free of all Liens (other than the Security
Interests) and Transfer Restrictions and that Secured Party has a valid, first
priority perfected security interest therein, a first lien thereon and Control
with respect thereto.
"Government Securities" means securities issued by the United States
Government.
"Initial Pledged Items" has the meaning provided in Section 1(b).
"Location" means, with respect to any party, such party's location
within the meaning of Section 9-307 of the UCC.
"Maximum Deliverable Number" means, on any date, the Base Amount on
such date.
"Pledged Items" means, as of any date, any and all securities and
instruments delivered by Pledgor to be held by or on behalf of Secured Party
under this Agreement as Collateral.
"rehypothecate" has the meaning provided in Section 5(i).
"Rehypothecation Unavailability" has the meaning provided in Section
5(i).
"Reimbursement Amount" has the meaning provided in Section 5(i).
"Reimbursement Notice Date" has the meaning provided in Section 5(i).
"Reimbursement Payment Date" has the meaning provided in Section
5(i).
"Reimbursement Period" means, with respect to any Rehypothecation
Unavailability, the period beginning on the date such Rehypothecation
Unavailability occurs and ending on the Reimbursement Payment Date immediately
following the date such Rehypothecation Unavailability terminates.
"Securities Contract" means the SAILS Mandatorily Exchangeable
Securities Contract dated as of the date hereof among Pledgor, Secured Party
and the Agent, as amended from time to time.
"Security Interests" means the security interests in the Collateral
created hereby.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
SECTION 3. Representations and Warranties of Pledgor. Pledgor hereby
represents and warrants to Secured Party that:
(a) Pledgor's holding period (calculated in accordance with Rule
144(d) under the Securities Act) with respect to the Initial Pledged Items
commenced on or before May 23, 2000, and Pledgor (i) owns and, except with
respect to Collateral rehypothecated pursuant to Section 5(i), at all times
prior to the release of the Collateral pursuant to the terms of this
Agreement, will own the Collateral free and clear of any Liens (other than the
Security Interests) or Transfer Restrictions and (ii) is not and will not
become a party to or otherwise bound by any agreement, other than this
Agreement, that (x) restricts in any manner the rights of any present or
future owner of the Collateral with respect thereto or (y) provides any person
other than Pledgor, Secured Party or any securities intermediary through whom
any Collateral is held (but, in the case of any such securities intermediary,
only with respect to Collateral held through it) with Control with respect to
any Collateral.
(b) Other than financing statements or other similar or equivalent
documents or instruments with respect to the Security Interests, after
delivery of the Purchase Price, no financing statement, security agreement or
similar or equivalent document or instrument covering all or any part of the
Collateral is on file or of record in any jurisdiction in which such filing or
recording would be effective to perfect a lien, security interest or other
encumbrance of any kind on such Collateral.
(c) All Collateral consisting of securities and all financial assets
underlying Collateral consisting of security entitlements (each as defined in
Section 8-102 of the UCC) (other than Collateral consisting of Government
Securities) at any time pledged hereunder is and will be issued by an issuer
organized under the laws of the United States, any State thereof or the
District of Columbia and (i) certificated (and the certificate or certificates
in respect of such securities or financial assets are and will be located in
the United States) and registered in the name of Pledgor or held through a
securities intermediary whose securities intermediary's jurisdiction (within
the meaning of Section 8-110(e) of the UCC) is located in the United States or
(ii) uncertificated and either registered in the name of Pledgor or held
through a securities intermediary whose securities intermediary's jurisdiction
(within the meaning of Section 8-110(e) of the UCC) is located in the United
States; provided that this representation shall not be deemed to be breached
if, at any time, any such Collateral is issued by an issuer that is not
organized under the laws of the United States, any State thereof or the
District of Columbia, and the parties hereto agree to procedures or amendments
hereto necessary to enable Secured Party to maintain a valid and continuously
perfected security interest in such Collateral, in respect of which Secured
Party will have Control, subject to no prior Lien. The parties hereto agree to
negotiate in good faith any such procedures or amendments.
(d) Upon (i) in the case of Collateral consisting of investment
property (as defined in Section 9-102(a) of the UCC), (A) the delivery of
certificates evidencing any such investment property consisting of
certificated securities to the Custodian in accordance with Section 5(c)(i),
(B) the registration of any such investment property consisting of
uncertificated securities in the name of the Custodian or its nominee in
accordance with Section 5(c)(ii) or (C) the crediting of any securities or
other financial assets underlying any such investment property consisting of
security entitlements to a securities account of the Custodian in accordance
with Section 5(c)(iii) and, in each case, the crediting of such securities or
financial assets to the Collateral Account or (ii) in the case of Collateral
not consisting of investment property, the filing of UCC-1 financing
statements in the form of Exhibit B hereto in the appropriate filing offices
in each jurisdiction identified in Parts 4 and 5 of Exhibit C hereto, Secured
Party will have a valid and perfected security interest in such Collateral, in
respect of which Secured Party will have (in the case of Collateral consisting
of investment property) Control, subject to no prior Lien.
(e) No registration, recordation or filing with any governmental
body, agency or official is required in connection with the execution and
delivery of this Agreement or necessary for the validity or enforceability
hereof or for the perfection or enforcement of the Security Interests, other
than the filing of UCC-1 financing statements in the form of Exhibit B hereto
in the appropriate filing offices in each jurisdiction identified in Parts 4
and 5 of Exhibit C hereto.
(f) Pledgor has not performed and will not perform any acts that
might prevent Secured Party from enforcing any of the terms of this Agreement
or that might limit Secured Party in any such enforcement.
(g) The Location of Pledgor is the jurisdiction of organization set
forth in the perfection certificate attached hereto as Exhibit C, and under
the Uniform Commercial Code as in effect in such Location.
(h) Pledgor has delivered to Secured Party a perfection certificate
substantially in the form attached as Exhibit C hereto, completed and
supplemented with the schedules and attachments contemplated thereby to the
satisfaction of Secured Party, and signed by an Authorized Officer of Pledgor.
SECTION 4. Certain Covenants of Pledgor. Pledgor agrees that, upon
delivery of the Initial Pledged Items as provided in Section 1(b) and so long
as any of Pledgor's obligations under the Securities Contract remain
outstanding thereafter:
(a) Pledgor shall ensure at all times that a Collateral Event of
Default shall not occur, and shall pledge additional Collateral in the manner
described in Sections 5(b) and 5(c) as necessary to cause such requirement to
be met.
(b) Pledgor shall, at the expense of Pledgor and in such manner and
form as Secured Party may require, give, execute, deliver, file and record any
financing statement, notice, instrument, document, agreement or other papers
that may be necessary or desirable in order to (i) create, preserve, perfect,
substantiate or validate any security interest granted pursuant hereto, (ii)
create or maintain Control with respect to any such security interests in any
investment property (as defined in Section 9-102(a) of the UCC) or (iii)
enable Secured Party to exercise and enforce its rights hereunder with respect
to such security interest. To the extent permitted by applicable law, Pledgor
hereby authorizes Secured Party to execute and file, in the name of Pledgor or
otherwise, UCC financing or continuation statements (which may be carbon,
photographic, photostatic or other reproductions of this Agreement or of a
financing statement relating to this Agreement) that Secured Party in its sole
discretion may deem necessary or appropriate to further perfect, or maintain
the perfection of, the Security Interests.
(c) Pledgor shall warrant and defend Pledgor's title to the
Collateral, subject to the rights of Secured Party, against the claims and
demands of all persons. Secured Party may elect, but without an obligation to
do so, to discharge any Lien of any third party on any of the Collateral.
(d) Pledgor shall not change (i) Pledgor's name, identity or
corporate structure in any manner or (ii) Pledgor's Location, unless in either
case (a) Pledgor shall have given Secured Party not less than 30 days' prior
notice thereof and (b) such change shall not cause any of the Security
Interests to become unperfected, cause Secured Party to cease to have Control
in respect of any of the Security Interests in any Collateral consisting of
investment property (as defined in Section 9-102(a) of the UCC) or subject any
Collateral to any other Lien.
(e) Pledgor shall not (i) create or permit to exist any Lien (other
than the Security Interests) or any Transfer Restriction upon or with respect
to the Collateral, (ii) sell or otherwise dispose of, or grant any option with
respect to, any of the Collateral or (iii) enter into or consent to any
agreement pursuant to which any person other than Pledgor, Secured Party and
any securities intermediary through whom any of the Collateral is held (but in
the case of any such securities intermediary only in respect of Collateral
held through it) has or will have Control in respect of any Collateral.
SECTION 5. Administration of the Collateral and Valuation of the
Securities. (a) Secured Party shall determine on each Business Day whether a
Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at
any time. Concurrently with the delivery of any additional Eligible
Collateral, Pledgor shall deliver to Secured Party a certificate of an
Authorized Officer of Pledgor substantially in the form of Exhibit A hereto
and dated the date of such delivery, (i) identifying the additional items of
Eligible Collateral being pledged and (ii) certifying that with respect to
such items of additional Eligible Collateral the representations and
warranties contained in paragraphs (a), (b), (c) and (d) of Section 3 are true
and correct with respect to such Eligible Collateral on and as of the date
thereof. Pledgor hereby covenants and agrees to take all actions required
under Section 5(c) and any other actions necessary to create for the benefit
of Secured Party a valid, first priority, perfected security interest in, and
a first lien upon, such additional Eligible Collateral, as to which Secured
Party will have Control.
(c) Any delivery of any securities or security entitlements (each as
defined in Section 8-102 of the UCC) as Collateral to Secured Party by Pledgor
shall be effected (i) in the case of Collateral consisting of certificated
securities registered in the name of Pledgor, by delivery of certificates
representing such securities to the Custodian, accompanied by any required
transfer tax stamps, and in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in blank,
with signatures appropriately guaranteed, all in form and substance
satisfactory to Secured Party, and the crediting by the Custodian of such
securities to a securities account (as defined in Section 8-501 of the UCC)
(the "Collateral Account") of Secured Party maintained by the Custodian, (ii)
in the case of Collateral consisting of uncertificated securities registered
in the name of Pledgor, by transmission by Pledgor of an instruction to the
issuer of such securities instructing such issuer to register such securities
in the name of the Custodian or its nominee, accompanied by any required
transfer tax stamps, the issuer's compliance with such instructions and the
crediting by the Custodian of such securities to the Collateral Account, (iii)
in the case of securities in respect of which security entitlements are held
by Pledgor through a securities intermediary, by the crediting of such
securities, accompanied by any required transfer tax stamps, to a securities
account of the Custodian at such securities intermediary or, at the option of
Secured Party, at another securities intermediary satisfactory to Secured
Party and the crediting by the Custodian of such securities to the Collateral
Account or (iv) in any case, by complying with such alternative delivery
instructions as Secured Party shall provide to Pledgor in writing. Upon
delivery of any such Pledged Item under this Agreement, Secured Party shall
examine (or cause the Custodian to examine) such Pledged Item and any
certificates delivered pursuant to Section 5(b) or otherwise pursuant to the
terms hereof in connection therewith to determine that they comply as to form
with the requirements for Eligible Collateral.
(d) If on any Business Day Secured Party determines that a Collateral
Event of Default shall have occurred, Secured Party shall promptly notify
Pledgor of such determination by telephone call to an Authorized Officer of
Pledgor followed by a written confirmation of such call.
(e) If on any Business Day Secured Party determines that no
Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations
under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may
obtain the release from the Security Interests of any Collateral upon delivery
to Secured Party of a written notice from an Authorized Officer of Pledgor
indicating the items of Collateral to be released so long as, after such
release, no Collateral Event of Default shall have occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise
effected the deliveries required by Section 2.03(b) of the Securities Contract
or shall have delivered the Cash Settlement Amount to Secured Party in lieu of
shares of Common Stock in accordance with Section 2.04 of the Securities
Contract on the Maturity Date or (ii) the Common Stock then held by or on
behalf of Secured Party hereunder is not Free Stock, Secured Party shall
deliver or cause to be delivered to itself from the Collateral Account in
whole or partial, as the case may be, satisfaction of Pledgor's obligations to
deliver shares of Common Stock to Secured Party on the Maturity Date pursuant
to the Securities Contract, shares of Common Stock then held by or on behalf
of it hereunder representing the number of shares of Common Stock required to
be delivered under the Securities Contract on the Maturity Date. Upon any such
delivery, Secured Party shall hold such shares of Common Stock absolutely and
free from any claim or right whatsoever (including, without limitation, any
claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole
discretion, cause any or all of the Collateral that is registered in the name
of Pledgor or Pledgor's nominee to be transferred of record into the name of
the Custodian, Secured Party or its nominee. Pledgor shall promptly give to
Secured Party copies of any notices or other communications received by
Pledgor with respect to Collateral that is registered, or held through a
securities intermediary, in the name of Pledgor or Pledgor's nominee and
Secured Party shall promptly give to Pledgor copies of any notices and
communications received by Secured Party with respect to Collateral that is
registered, or held through a securities intermediary, in the name of
Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to
Secured Party:
(i) the amount of any taxes that Secured Party or the
Custodian may have been required to pay by reason of the Security
Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including
the fees and disbursements of counsel and of any other experts, that
Secured Party or the Custodian may incur in connection with (A) the
enforcement of this Agreement, including such expenses as are
incurred to preserve the value of the Collateral and the validity,
perfection, rank and value of the Security Interests, (B) the
collection, sale or other disposition of any of the Collateral, (C)
the exercise by Secured Party of any of the rights conferred upon it
hereunder or (D) any Acceleration Event.
Any such amount not paid on demand shall bear interest (computed on the basis
of a year of 360 days and payable for the actual number of days elapsed) at a
rate per annum equal to 5% plus the prime rate as published from time to time
in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under
this Agreement, upon the consent of Pledgor (which consent need not be in
writing), Secured Party may sell, lend, pledge, rehypothecate, assign, invest,
use, commingle or otherwise dispose of, or otherwise use in its business
(collectively, "rehypothecate"), any Collateral, free from any claim or right
of any nature whatsoever of Pledgor, including any equity or right of
redemption by Pledgor; provided that Secured Party will return any
rehypothecated Collateral (with the same Collateral or identical substitute
Collateral) (A) upon five Business Days' notice from Pledgor or (B) if not
already returned, on the Maturity Date or on any Optional Termination Date or
any Reorganization Termination Date; provided further that in the case of any
Optional Termination Date on which the Securities Contract is terminated in
part pursuant to Section 3.01 of the Securities Contract, Secured Party will
be obligated to return only an amount of rehypothecated Collateral sufficient
to ensure that on such date, the Collateral Account will contain a number of
shares of Common Stock at least equal to the number of shares of Common Stock
with respect to which the Securities Contract is to be terminated pursuant to
Section 3.01 of the Securities Contract; provided further that in the case of
any Reorganization Termination Date relating to any Reorganization Event in
which the consideration received by holders of Common Stock does not consist
solely of Non-Stock Consideration, Secured Party will be obligated to return
only Non-Stock Consideration in an amount and of the type that a holder of a
number of shares of Common Stock equal to the number of shares of Common Stock
rehypothecated by Secured Party immediately prior to such Reorganization
Termination Date would have been entitled to receive in such Reorganization
Event. If at any time at which any shares of Common Stock constituting
Collateral have been rehypothecated pursuant to this Section 5(i) there shall
occur an event of a type that would, had Secured Party borrowed such shares of
Common Stock from Pledgor on terms customary for loans of equity securities
(as determined by the Calculation Agent), require either (i) an adjustment to
the number of shares of Common Stock or a change in the type of securities or
other property that Secured Party would be required to deliver to Pledgor to
repay such stock loan or (ii) a payment or delivery by Secured Party to
Pledgor in respect of dividends paid or distributions made on such shares of
Common Stock, then, in the case of clause (i), except as provided in the third
proviso to the immediately preceding sentence, such adjustment or change shall
be applied to the number of shares of Common Stock that Secured Party is
required to return upon notice from Pledgor in accordance with the first
proviso to the immediately preceding sentence and, in the case of clause (ii),
Secured Party shall make such payment or delivery to Pledgor, whereupon the
amount so paid or the assets so delivered shall become Collateral hereunder
(except that to the extent any such payment is made in respect of an Ordinary
Cash Dividend, it shall be returned to Pledgor, it being understood that
Pledgor is entitled to Ordinary Cash Dividends pursuant to Section 6(a)
hereof). All determinations related to the immediately preceding sentence
shall be made by the Calculation Agent. Notwithstanding the foregoing, if
Eligible Collateral consisting of a number of shares of Common Stock equal to
the Maximum Deliverable Number is unavailable for rehypothecation by Secured
Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent
to rehypothecation of such Collateral, (2) as a result of Pledgor's causing
Secured Party to return such Collateral pursuant to the first proviso to the
first sentence in this Section 5(i), (3) as a result of any Transfer
Restrictions, (4) as a result of Pledgor's substitution of Government
Securities for Share Collateral pursuant to Section 5(j) or (5) otherwise), (a
"Rehypothecation Unavailability"), Pledgor shall be obligated to reimburse
Secured Party in the manner set forth below for any costs ("Borrow Costs")
incurred by Secured Party relating to Secured Party's borrowing of shares of
Common Stock in connection with hedging Secured Party's exposure to the
Securities Contract during the period such Rehypothecation Unavailability
exists, the aggregate amount of any such Borrow Costs to be determined by the
Calculation Agent. Prior to the close of business on the Business Day (the
"Reimbursement Notice Date") immediately preceding the first Business Day of
each month (each such Business Day, a "Reimbursement Payment Date") that
begins during the Reimbursement Period for such Rehypothecation
Unavailability, the Calculation Agent shall deliver a notice to Pledgor
specifying the aggregate amount of Borrow Costs incurred (the "Reimbursement
Amount") during the period beginning on the Reimbursement Payment Date
immediately preceding such Reimbursement Payment Date (or if there is no
preceding Reimbursement Payment Date, beginning on the date such
Rehypothecation Unavailability occurred) and ending on the Reimbursement
Notice Date for such Reimbursement Payment Date. On such Reimbursement Payment
Date, Pledgor shall make a cash payment to Secured Party, by wire transfer of
immediately available funds to an account designated by Secured Party, in an
amount equal to the aggregate amount of Borrow Costs specified in such notice.
For purposes of determining the occurrence of a Collateral Event of Default,
the rehypothecation of any Collateral pledged hereunder shall not affect the
status of such Collateral as Collateral or Eligible Collateral hereunder. This
Section 5(i) is intended to be an agreement that satisfies the requirements of
Section 1058 of the Internal Revenue Code of 1986, as amended, and the
regulations (including proposed regulations) promulgated thereunder, and
Secured Party and Pledgor agree to treat this Section 5(i) as such an
agreement for all federal income tax purposes.
(j) Pledgor may at any time, so long as no Acceleration Event has
occurred and is continuing, substitute Government Securities for all (but not
less than all) of the Collateral consisting of Common Stock then held in or
credited to the Collateral Account (the "Share Collateral") on the terms set
forth below:
(i) At least fifteen Business Days prior to the date of any
such substitution, Pledgor shall notify Secured Party in writing that
Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner
reasonably acceptable to Secured Party, Government Securities having
a value (as determined by the Calculation Agent) at least equal to
150% of the Market Value of the Maximum Deliverable Number of shares
of Common Stock on the date of such delivery;
(iii) Pledgor shall take all such other actions as Secured
Party may reasonably require to create for the benefit of Secured
Party a valid and perfected security interest in such Government
Securities, in respect of which Secured Party will have Control,
subject to no prior Lien; and
(iv) Pledgor shall make xxxx to market deliveries of
additional Government Securities on a daily basis, and upon the
request of Pledgor, Secured Party shall release Government Securities
previously pledged, so that the value (as determined by the
Calculation Agent) of the Government Securities pledged is at all
times at least equal to 150% of the Market Value of the Maximum
Deliverable Number of shares of Common Stock at such time, in each
case, pursuant to terms mutually acceptable to Secured Party and
Pledgor.
SECTION 6. Income and Voting Rights in Collateral. (a) Secured Party
shall have the right to receive and retain as Collateral hereunder all
proceeds of the Collateral (excluding Ordinary Cash Dividends but including,
without limitation, Extraordinary Cash Dividends or interest), and Pledgor
shall take all such action as Secured Party shall deem necessary or
appropriate to give effect to such right. All such proceeds that are received
by Pledgor shall be received in trust for the benefit of Secured Party and, if
Secured Party so directs, shall be segregated from other funds of Pledgor and
shall, forthwith upon demand by Secured Party, be delivered over to the
Custodian on behalf of Secured Party as Collateral in the same form as
received (with any necessary endorsement).
(b) Unless an Acceleration Event shall have occurred and be
continuing, Pledgor shall have the right, from time to time, to vote and to
give consents, ratifications and waivers with respect to the Collateral (other
than Collateral that has been rehypothecated by Secured Party pursuant to
Section 5(i)), and Secured Party shall, upon receiving a written request from
Pledgor accompanied by a certificate of an Authorized Officer of Pledgor
stating that no Acceleration Event has occurred and is continuing, deliver to
Pledgor or as specified in such request such proxies, powers of attorney,
consents, ratifications and waivers in respect of any of the Collateral that
is registered, or held through a securities intermediary, in the name of the
Custodian, Secured Party or its nominee as shall be specified in such request
and shall be in form and substance satisfactory to Secured Party.
(c) If an Acceleration Event shall have occurred and be continuing,
Secured Party shall have the right, to the extent permitted by law, and
Pledgor shall take all such action as may be necessary or appropriate to give
effect to such right, to vote and to give consents, ratifications and waivers,
and to take any other action with respect to any or all of the Collateral with
the same force and effect as if Secured Party were the absolute and sole owner
thereof.
SECTION 7. Remedies upon Acceleration Events. (a) On or after any
Acceleration Date, Secured Party may exercise all the rights of a secured
party under the Uniform Commercial Code (whether or not in effect in the
jurisdiction where such rights are exercised) and, in addition, without being
required to give any notice, except as herein provided or as may be required
by mandatory provisions of law, shall: (i) deliver or cause to be delivered to
itself from the Collateral Account all Collateral consisting of shares of
Common Stock (but not in excess of the number thereof deliverable under the
Securities Contract at such time) on the date of the Acceleration Amount
Notice relating to such Acceleration Date (the "Default Settlement Date") in
satisfaction of Pledgor's obligations to deliver Common Stock under the
Securities Contract, whereupon Secured Party shall hold such shares of Common
Stock absolutely free from any claim or right of whatsoever kind, including
any equity or right of redemption of Pledgor that may be waived or any other
right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby
specifically waives all rights of redemption, stay or appraisal that Pledgor
has or may have under any law now existing or hereafter adopted; and (ii) if
such delivery shall be insufficient to satisfy in full all of the obligations
of Pledgor under the Securities Contract or hereunder, sell all of the
remaining Collateral, or such lesser portion thereof as may be necessary to
generate proceeds sufficient to satisfy in full all of the obligations of
Pledgor under the Securities Contract or hereunder, at public or private sale
or at any broker's board or on any securities exchange, for cash, upon credit
or for future delivery, and at such price or prices as Secured Party may deem
satisfactory. Pledgor covenants and agrees that Pledgor will execute and
deliver such documents and take such other action as Secured Party deems
necessary or advisable in order that any such sale may be made in compliance
with law. Upon any such sale, Secured Party shall have the right to deliver,
assign and transfer to the buyer thereof the Collateral so sold. Each buyer at
any such sale shall hold the Collateral so sold absolutely and free from any
claim or right of whatsoever kind, including any equity or right of redemption
of Pledgor that may be waived or any other right or claim of Pledgor, and
Pledgor, to the extent permitted by law, hereby specifically waives all rights
of redemption, stay or appraisal that Pledgor has or may have under any law
now existing or hereafter adopted. The notice (if any) of such sale required
by Section 9-611 of the UCC shall (1) in case of a public sale, state the time
and place fixed for such sale, (2) in case of sale at a broker's board or on a
securities exchange, state the board or exchange at which such sale is to be
made and the day on which the Collateral, or the portion thereof so being
sold, will first be offered for sale at such board or exchange and (3) in the
case of a private sale, state the day after which such sale may be
consummated. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as Secured Party may fix
in the notice of such sale. At any such sale the Collateral may be sold in one
lot as an entirety or in separate parcels, as Secured Party may determine.
Secured Party shall not be obligated to make any such sale pursuant to any
such notice. Secured Party may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be
made at any time or place to which the same may be so adjourned. In case of
any sale of all or any part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained by Secured Party until the
selling price is paid by the buyer thereof, but Secured Party shall not incur
any liability in case of the failure of such buyer to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may again
be sold upon like notice. Secured Party, instead of exercising the power of
sale herein conferred upon it, may proceed by a suit or suits at law or in
equity to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
(b) Pledgor hereby irrevocably appoints Secured Party Pledgor's true
and lawful attorney, with full power of substitution, in the name of Pledgor,
Secured Party or otherwise, for the sole use and benefit of Secured Party, but
at the expense of Pledgor, to the extent permitted by law, to exercise, at any
time and from time to time while an Acceleration Event has occurred and is
continuing, all or any of the following powers with respect to all or any of
the Collateral:
(i) to demand, xxx for, collect, receive and give
acquittance for any and all monies due or to become due upon or by
virtue thereof;
(ii) to settle, compromise, compound, prosecute or defend
any action or proceeding with respect thereto;
(iii) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof, as fully and effectually
as if Secured Party were the absolute owner thereof (including,
without limitation, the giving of instructions and entitlement orders
in respect thereof); and
(iv) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto;
provided that Secured Party shall give Pledgor not less than one day's prior
written notice of the time and place of any sale or other intended disposition
of any of the Collateral, except any Collateral that threatens to decline
speedily in value, including, without limitation, equity securities, or is of
a type customarily sold on a recognized market. Secured Party and Pledgor
agree that such notice constitutes "reasonable notification" within the
meaning of Section 9-611(b) of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral
made either under the power of delivery or sale given hereunder or under
judgment or decree in any judicial proceedings for foreclosure or otherwise
for the enforcement of this Agreement, Secured Party is hereby irrevocably
appointed the true and lawful attorney of Pledgor, in the name and stead of
Pledgor, to make all necessary deeds, bills of sale, instruments of
assignment, transfer or conveyance of the property, and all instructions and
entitlement orders in respect of the property thus delivered or sold. For that
purpose Secured Party may execute all such documents, instruments,
instructions and entitlement orders. This power of attorney shall be deemed
coupled with an interest, and Pledgor hereby ratifies and confirms that which
Pledgor's attorney acting under such power, or such attorney's successors or
agents, shall lawfully do by virtue of this Agreement. If so requested by
Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor
shall further ratify and confirm any such delivery or sale by executing and
delivering to Secured Party or to such buyer or buyers at the expense of
Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance
or transfer, releases, instructions and entitlement orders as may be
designated in any such request.
(d) In the case of an Acceleration Event, Secured Party may proceed
to realize upon the security interest in the Collateral against any one or
more of the types of Collateral, at any time, as Secured Party shall determine
in its sole discretion subject to the foregoing provisions of this Section 7.
The proceeds of any sale of, or other realization upon, or other receipt from,
any of the Collateral shall be applied by Secured Party in the following order
of priorities:
first, to the payment to Secured Party or the Custodian of
the expenses of such sale or other realization, including reasonable
compensation to the Custodian and the agents and counsel of the
Custodian and Secured Party, and all expenses, liabilities and
advances incurred or made by Secured Party or the Custodian in
connection therewith, including brokerage fees in connection with the
sale by Secured Party of any Collateral;
second, to the payment to Secured Party of an amount equal
to the aggregate market value (as determined by the Calculation
Agent) as of the Default Settlement Date of a number of shares of
Common Stock equal to (i) the number of shares of Common Stock that
would be required to be delivered under Section 8.01 of the
Securities Contract on the Default Settlement Date without giving
effect to the proviso therein minus (ii) the number of shares of
Common Stock delivered to Secured Party on the Default Settlement
Date as described in Section 7(a);
finally, if all of the obligations of Pledgor hereunder and
under the Securities Contract have been fully discharged or
sufficient funds have been set aside by Secured Party, at the request
of Pledgor for the discharge thereof, any remaining proceeds shall be
released to Pledgor.
SECTION 8. Miscellaneous. (a) This Agreement is not intended and
shall not be construed to create any rights in any person other than Pledgor,
Secured Party and their respective successors and assigns and no other person
shall assert any rights as third party beneficiary hereunder. Whenever any of
the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party. All the covenants and agreements
herein contained by or on behalf of Pledgor and Secured Party shall bind, and
inure to the benefit of, their respective successors and assigns whether so
expressed or not. The rights and duties under this Agreement may not be
assigned or transferred by any party hereto without the prior written consent
of the other parties hereto; provided that (i) Secured Party may assign or
transfer any of its rights or duties hereunder with the prior written consent
of Pledgor (which consent shall not be unreasonably withheld) and (ii) Agent
may assign or transfer any of its rights or duties hereunder without the prior
written consent of the other parties hereto to any affiliate of Credit Suisse
First Boston, so long as such affiliate is a broker-dealer registered with the
Securities and Exchange Commission.
(b) Any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by Pledgor and Secured Party or, in the case of a waiver, by the
party against whom the waiver is to be effective. No failure or delay by
either party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
(c) All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted
by any standard forms of telecommunication. Notices to Pledgor shall be
directed to Pledgor at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy
No. (000) 000-0000, Attention: Chief Financial Officer; notices to Secured
Party shall be directed to it in care of Credit Suisse First Boston
Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy No.
(000) 000-0000, Attention: Xxxxxxx Xxxxxxxx.
(d) This Agreement shall in all respects be construed in accordance
with and governed by the laws of the State of New York without reference to
choice of law doctrine (provided that as to Pledged Items located in any
jurisdiction other than the State of New York, Secured Party shall, in
addition to any rights under the laws of the State of New York, have all of
the rights to which a secured party is entitled under the laws of such other
jurisdiction) and each party hereto submits to the jurisdiction of the Courts
of the State of New York and waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of the venue of
any suit, action or proceeding arising out of or in connection with this
Agreement in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. The
parties hereto hereby agree that the Custodian's jurisdiction, within the
meaning of Section 8-110(e) of the UCC, insofar as it acts as a securities
intermediary hereunder or in respect hereof, is the State of New York. To the
extent permitted by law, the unenforceability or invalidity of any provision
or provisions of this Agreement shall not render any other provision or
provisions herein contained unenforceable or invalid.
(e) Each party hereby irrevocably and unconditionally waives any and
all right to trial by jury in any legal proceeding arising out of or related
to this Agreement or the transactions contemplated hereby.
(f) This Agreement may be executed, acknowledged and delivered in any
number of counterparts and all such counterparts taken together shall be
deemed to constitute one and the same agreement.
(g) The rights and obligations of the Agent shall be as set forth in
Section 9.08 of the Securities Contract.
SECTION 9. Termination of Pledge Agreement. This Agreement and the
rights hereby granted by Pledgor in the Collateral shall cease, terminate and
be void upon fulfillment of all of the obligations of Pledgor under the
Securities Contract and hereunder. Any Collateral remaining at the time of
such termination shall be fully released and discharged from the Security
Interests and delivered to Pledgor by Secured Party, all at the request and
expense of Pledgor.
SECTION 10. Netting and Set-off. (a) If on any date, cash would
otherwise be payable or shares of Common Stock or other property would
otherwise be deliverable (including, for the avoidance of doubt, the return,
as required by Section 5(i), of shares of Common Stock that have been
rehypothecated pursuant to such Section) pursuant to the Securities Contract
or this Agreement by Secured Party to Pledgor and by Pledgor to Secured Party
and the type of property required to be paid or delivered by each such party
on such date is the same, then, on such date, each such party's obligation to
make such payment or delivery will be automatically satisfied and discharged
and, if the aggregate amount that would otherwise have been payable or
deliverable by one such party exceeds the aggregate amount that would
otherwise have been payable or deliverable by the other such party, replaced
by an obligation upon the party by whom the larger aggregate amount would have
been payable or deliverable to pay or deliver to the other party the excess of
the larger aggregate amount over the smaller aggregate amount.
(b) In addition to and without limiting any rights of set-off that
Secured Party may have as a matter of law, pursuant to contract or otherwise,
upon the occurrence of a Reorganization Termination Date to which clause (B)
of Section 7.02 of the Securities Contract applies or an Acceleration Date,
Secured Party shall have the right to terminate, liquidate and otherwise close
out the transactions contemplated by the Securities Contract and this
Agreement pursuant to the terms of the Securities Contract and this Agreement,
and to set off any obligation it may have to (i) release from the Security
Interests or return to Pledgor any Collateral pursuant to Section 5(e) or
Section 9 or (ii) return any rehypothecated Collateral pursuant to Section
5(i), against any right Secured Party or any of its affiliates may have
against Pledgor, including without limitation any right to receive a payment
or delivery pursuant to Section 2.03(b), Section 2.04, Section 2.05, Section
3.01, Section 7.02, Section 7.04 or Section 8.01 of the Securities Contract or
any other provision of the Securities Contract. In the case of a set-off of
any obligation to return or replace assets against any right to receive assets
of the same type, such obligation and right shall be set off in kind. In the
case of a set-off of any obligation to return or replace assets against any
right to receive assets of any other type, the value of each of such
obligation and such right shall be determined by the Calculation Agent and the
result of such set-off shall be that the net obligor shall pay or deliver to
the other party an amount of cash or assets, at the net obligor's option, with
a value (determined, in the case of a delivery of assets, by the Calculation
Agent) equal to that of the net obligation. In determining the value of any
obligation to release or deliver Common Stock or right to receive Common
Stock, the value at any time of such obligation or right shall be determined
by reference to the market value of the Common Stock at such time. If an
obligation or right is unascertained at the time of any such set-off, the
Calculation Agent may in good faith estimate the amount or value of such
obligation or right, in which case set-off will be effected in respect of that
estimate, and the relevant party shall account to the other party at the time
such obligation or right is ascertained.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date and year first above written.
PLEDGOR:
GSB INVESTMENTS CORP.
By:---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SECURED PARTY:
CREDIT SUISSE FIRST BOSTON
INTERNATIONAL
By:---------------------------------------
Name:
Title:
By:---------------------------------------
Name:
Title:
AGENT:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:---------------------------------------
Name:
Title:
EXHIBIT A
[Certificate for Additional Collateral]
The undersigned, an Authorized Officer of GSB Investments Corp.
("Pledgor"), hereby certifies, pursuant to Section 5(b) of the SAILS Pledge
Agreement dated as of January 29, 2002 among Pledgor, Credit Suisse First
Boston Corporation, as Agent, and Credit Suisse First Boston International
(the "Pledge Agreement"; terms defined in the Pledge Agreement being used
herein as defined therein), that:
1. Pledgor is delivering, or causing to be delivered in
accordance with Section 5(c) of the Pledge Agreement, the following
securities (or security entitlements in respect thereof) to Secured
Party to be held by Secured Party as additional Collateral (the
"Additional Collateral"):
2. Pledgor hereby represents and warrants to Secured Party
that the Additional Collateral is Eligible Collateral and that the
representations and warranties contained in paragraphs (a), (b), (c)
and (d) of Section 3 of the Pledge Agreement are true and correct
with respect to the Additional Collateral on and as of the date
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this ___ day of __________, ____.
By:_____________________________
Name:
Title:
EXHIBIT B
Form of UCC-1 Financing Statement
ANNEX A TO FINANCING STATEMENT NAMING
GSB INVESTMENTS CORP., AS DEBTOR, AND CREDIT SUISSE
FIRST BOSTON INTERNATIONAL, AS SECURED PARTY
This financing statement covers the right, title and interest of GSB
Investments Corp. ("Debtor") in and to the following, whether owned at the
time that the Initial Pledged Items were delivered to the Custodian or
thereafter acquired (all of which is hereinafter collectively referred to as
the "Collateral"):
(i) the Initial Pledged Items;
(ii) all additions to and substitutions for the Initial Pledged Items
(the "Additions and Substitutions");
(iii) all income, proceeds and collections received or to be
received, or derived or to be derived, at the time that the Initial Pledged
Items were delivered to the Custodian or at any time thereafter (whether
before or after the commencement of any proceeding under applicable
bankruptcy, insolvency or similar law, by or against Debtor, with respect to
Debtor) from or in connection with the Initial Pledged Items or the Additions
and Substitutions (excluding Ordinary Cash Dividends but including, without
limitation, (A) any shares of capital stock issued by the Issuer in respect of
any Common Stock constituting Collateral or any cash, securities or other
property distributed in respect of or exchanged for any Common Stock
constituting Collateral (other than Ordinary Cash Dividends), or into which
any such Common Stock is converted in connection with any Reorganization Event
or otherwise, and any security entitlements in respect of any of the
foregoing, (B) any obligation of Secured Party to return any rehypothecated
Collateral and (C) any amounts paid or assets delivered to Debtor by Secured
Party in respect of dividends paid or distributions (other than Ordinary Cash
Dividends) made on shares of Common Stock constituting Collateral that have
been rehypothecated);
(iv) the Collateral Account and all securities and other financial
assets (each as defined in Section 8-102 of the UCC), including the Initial
Pledged Items and the Additions and Substitutions, and other funds, property
or other assets from time to time held therein or credited thereto; and
(v) all powers and rights owned at the time that the Initial Pledged
Items were delivered to the Custodian or thereafter acquired under or with
respect to the Initial Pledged Items or the Additions and Substitutions.
As used in this Annex A, the following capitalized terms have the
meanings specified below (such meanings being equally applicable to both the
singular and plural forms of the terms defined):
"Collateral Account" means a securities account (as defined in
Section 8- 501(a) of the UCC) established in the name of Secured Party at the
offices of the Custodian in which or to which certain of the Collateral is to
be deposited or credited.
"Common Stock" means shares of Common Stock, par value $1.00 per
share, of the Issuer, or security entitlements in respect thereof.
"Custodian" means The Bank of New York, or any other custodian
appointed by Secured Party and identified to Debtor.
"Initial Pledged Items" means 1,585,000 shares of Common Stock.
"Issuer" means Golden State Bancorp., a Delaware corporation.
"Reorganization Event" means (i) any consolidation or merger of the
Issuer with or into another entity (other than a merger or consolidation in
which the Issuer is the continuing corporation and in which the Common Stock
outstanding immediately prior to the merger or consolidation is not exchanged
for cash, securities or other property of the Issuer or another corporation),
(ii) any sale, transfer, lease or conveyance of the property of the Issuer as
an entirety or substantially as an entirety, (iii) any statutory exchange of
securities of the Issuer with another corporation (other than in connection
with a merger or acquisition) or (iv) any liquidation, dissolution or winding
up of the Issuer.
"Secured Party" means Credit Suisse First Boston International.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
EXHIBIT C
Perfection Certificate
The undersigned, GSB Investments Corp. ("Pledgor"), acting through an
Authorized Officer, hereby certifies, pursuant to Section 3(h) of the SAILS
Pledge Agreement (the "Pledge Agreement") dated as of January 29, 2002 among
Pledgor, Credit Suisse First Boston Corporation, as Agent, and Credit Suisse
First Boston International (terms defined therein being used herein as defined
in the Pledge Agreement), that:
1. Jurisdiction of Organization. Pledgor is a corporation organized
under the laws of the State of Delaware.
2. Name. The exact corporate name of Pledgor as it appears in its
certificate of incorporation is:
GBS Investments Corp.
3. Prior Name. (a) Set forth below is each other corporate name that
Pledgor has had since its incorporation, together with the date of the
relevant change:
N/A
(b) Pledgor has not changed its corporate structure in any
way within the past five years.(2)
4. Current Location. The chief executive office of Pledgor is located
at the following address:
--------
(2) Changes in corporate structure include mergers and consolidations, as
well as any change in the Pledgor's form of organization. If any such
change has occurred, include in Schedule I the information required
by Parts 1 - 5 of this certificate as to each constituent party to
any merger or consolidation and any other predecessor organization.
Mailing Address County State
------------------------------------------------------------------------------
00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx
New York, New York 10021
5. Prior Locations. (a) Set forth below is the information required
by Part 4 above with respect to each other chief executive office maintained
by Pledgor at any time during the past five years:
Xxxxxxx Xxxxxxx Xxxxxx Xxxxx
------------------------------------------------------------------------------
X/X
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this ____ day of _____________, 2002.
GSB INVESTMENTS CORP.
By:_____________________________
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CROSS-REFERENCE TARGET LIST
NOTE: Due to the number of targets some target names may not appear
in the target pull-down list. (This list is for the use of the wordprocessor
only, is not a part of this document and may be discarded.)
ARTICLE/SECTION TARGET NAME
=============== ===========
1............................................................................01
?............................................................................03
xxxxxxxx.xxxxxxxx.xxxxxxxx.................................................1(a)
?............................................................................07
2............................................................................02
3............................................................................17
4............................................................................13
4(a).........................................................................15
5............................................................................12
5(b).........................................................................10
5(c).........................................................................11
5(c)(i).............................................................xx.xxx.xxxx
5(c)(ii).............................................................collateral
5(c)(iii)...........................................................case.of.sec
5(c)(iv)..............................................................by.comply
5(e)...........................................................bus.day.sec.part
5(i).........................................................................06
6(a).............................................................income.secured
7............................................................................14
7(a).........................................................................04
8(d).........................................................................08
9...............................................................term.pledge.agt
