AMENDMENT NO. 1 TO PLEDGE AGREEMENT
THIS AMENDMENT NO. 1 to Pledge Agreement is made as of this __th day
of February, 2002 among GSB INVESTMENTS CORP., a Delaware corporation
("Pledgor"), JPMORGAN CHASE BANK, as collateral agent (the "Collateral Agent")
thereunder for the benefit of JPMORGAN CHASE BANK, as secured party ("Secured
Party"), and Secured Party.
WHEREAS, Pledgor and Secured Party, by X.X. Xxxxxx Securities Inc.,
as its agent, entered into a Stock Purchase Agreement (as amended from time to
time, the "Stock Purchase Agreement") dated as of November 14, 2001, pursuant
to which Pledgor has agreed to sell and Secured Party has agreed to purchase
shares of common stock, par value $1.00 per share, or security entitlements in
respect thereof ("Common Stock"), of Golden State Bancorp Inc., a Delaware
corporation (the "Issuer"), subject to the terms and conditions of the Stock
Purchase Agreement;
WHEREAS, Pledgor, the Collateral Agent and Secured Party entered into
a Pledge Agreement dated as of November 14, 2001 (the "Pledge Agreement")
pursuant to which Pledgor granted the pledge provided for therein to secure
Pledgor's obligations under the Stock Purchase Agreement;
WHEREAS, Pledgor, the Collateral Agent and Secured Party now desire
to amend the Pledge Agreement to provide for the lending of certain shares of
Common Stock pledged thereunder;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
SECTION 1. Defined Terms; References. Capitalized terms used and not
otherwise defined herein have the meanings assigned to them in the Pledge
Agreement. The terms "Loaned Shares" and "Loan" shall have the meanings
assigned to them in the Share Lending Agreement (as defined herein). Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other
similar reference contained herein or in the Pledge Agreement shall refer to
the Pledge Agreement as amended hereby and by the exhibits and annexes hereto.
SECTION 2. Share Loan Agreement and Share Loans. (a) Notwithstanding
anything to the contrary in the Pledge Agreement, the Collateral Agent is
hereby authorized and instructed, on behalf of Pledgor and as Pledgor's agent,
to enter into a Share Lending Agreement with JPMorgan Chase Bank ("JPMorgan
Chase"), as borrower, substantially in the form attached as Annex B hereto
(the "Share Lending Agreement").
(b) The Collateral Agent, in its capacity as Pledgor's agent, is
hereby authorized and instructed to commence lending up to all of the Pledged
Items to JPMorgan Chase from time to time in accordance with the provisions of
the Share Lending Agreement, subject to the satisfaction of the following
conditions:
(i) No Pledged Items may be lent under the Share Lending
Agreement until the Pledgor has filed UCC-1 financing statements in
the form of Annex A hereto in each of the filing offices specified in
Exhibit B to the Pledge Agreement.
(ii) It is hereby confirmed, agreed and acknowledged that
all proceeds of Pledged Items, including, without limitation, all of
Pledgor's right, title and interest in and to:
(A) any obligation of JPMorgan Chase to Pledgor
under the Share Lending Agreement, including, without
limitation, any obligation to return the Loaned Shares upon
termination of a Loan or to pay or deliver any amounts or
assets to Pledgor in respect of distributions made on or
with respect to the Loaned Shares,
(B) any amounts paid or assets delivered by
JPMorgan Chase to Pledgor in respect of distributions made
on or with respect to the Loaned Shares, and
(C) any Loaned Shares transferred by JPMorgan Chase
to Pledgor upon termination of a Loan under the Share
Lending Agreement,
in each case, shall constitute Collateral.
(iii) Pledgor may, by notice to the Collateral Agent
(without a requirement of Secured Party consenting to such notice at
the time when such notice is given), instruct the Collateral Agent to
terminate any or all Loans then outstanding pursuant to Section 5(b)
of the Share Lending Agreement and cause Pledged Items subject to
such Loans to be returned to the Collateral Agent. Pledgor will not
cause any Loans to be made, and will terminate any such Loans
pursuant to Section 5(b) of the Share Lending Agreement, if any such
Loan would contravene, or conflict with any provision of applicable
law or regulation.
(iv) Immediately upon receipt by the Collateral Agent
pursuant to the terms of the Share Lending Agreement of (x) any
Pledged Items returned upon termination of a Loan or (y) any proceeds
in respect of Pledged Items, the Collateral Agent shall hold such
returned Pledged Items and such proceeds as Collateral subject to the
Security Interests for the benefit of Secured Party.
(c) Pledgor hereby acknowledges and agrees to all the
representations, warranties and covenants made on its behalf in the Share
Lending Agreement. In addition, Pledgor hereby represents and warrants to the
Collateral Agent and Secured Party that:
(i) other than the Pledge Agreement as amended hereby, any
UCC-1 financing statements in the form of Annex A hereto filed in the
filing offices specified in Exhibit B to the Pledge Agreement, or
other similar or equivalent documents or instruments with respect to
the Security Interests, 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;
(ii) upon the execution and delivery hereof by the parties
hereto and (x) in the case of Collateral consisting of investment
property (as defined in Section 9-102(a)(49) of the UCC), the
delivery of such Collateral to the Collateral Agent, and (y) in the
case of Collateral consisting of general intangibles (as defined in
Section 9-102(a)(42) of the UCC), the filing of UCC-1 financing
statements in the form of Annex A hereto in the filing offices
specified in Exhibit B to the Pledge Agreement, (A) the Collateral
Agent will have, for the benefit of Secured Party, a valid and
perfected security interest in, and, in the case of any such
Collateral consisting of investment property, Control with respect to
the Collateral, subject to no prior Lien, (B) in the case of
Collateral consisting of securities (as defined in Sections
8-102(a)(15) and 8-103 of the UCC), the Collateral Agent will be a
protected purchaser (as defined in Section 8-303 of the UCC) in
respect thereof and (C) in the case of Collateral consisting of
security entitlements, no action based on an adverse claim thereto,
whether framed in conversion, replevin, constructive trust, equitable
lien, or other theory, may be asserted against the Collateral Agent
or Secured Party; and
(iii) no registration, recordation or filing with any
governmental body, agency or official is required in connection with
the execution and delivery of the Pledge Agreement, as amended
hereby, or necessary for the validity or enforceability of the Pledge
Agreement, as amended hereby, or for the perfection or enforcement of
the Security Interests other than the filing of UCC-1 financing
statements in the form of Annex A hereto in the filing offices
specified in Exhibit B to the Pledge Agreement.
SECTION 3. Miscellaneous. (a) This Amendment No. 1 shall be governed
by and construed in accordance with the laws of the State of New York (without
reference to choice of law doctrine).
(b) This Amendment No. 1 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.
(c) This Amendment No. 1 shall become effective upon the execution
hereof by all the parties hereto.
IN WITNESS WHEREOF, the parties have signed this Amendment No. 1 to
the Pledge Agreement as of the date and year first above written.
PLEDGOR:
GSB INVESTMENTS CORP.
By: /s/Xxxx X. Xxxxxxx
______________________________________
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
COLLATERAL AGENT:
JPMORGAN CHASE BANK, as Collateral
Agent
By: /s/Xxxxxx Xxxx
______________________________________
Name: Xxxxxx Xxxx
Title: Vice President
SECURED PARTY:
JPMORGAN CHASE BANK, as Secured
Party
By: /s/Xxxxxx Xxxx
______________________________________
Name: Xxxxxx Xxxx
Title: Vice President
Annex A
[FORM OF UCC-1 FINANCING STATEMENT]
SCHEDULE A TO FINANCING STATEMENT NAMING
GSB INVESTMENTS CORP., AS DEBTOR, AND
JPMORGAN CHASE BANK, AS COLLATERAL AGENT
ON BEHALF OF THE SECURED PARTY
This financing statement covers the right, title and interest of GSB
INVESTMENTS CORP. ("Debtor") in and to the following, whether now owned or
hereafter acquired (all of which hereinafter collectively referred to as the
"Collateral"):
(i) the Pledged Items;
(ii) all additions to and substitutions for Pledged Items
(including, without limitation, any securities, instruments or other property
delivered or pledged pursuant to Sections 5(a) or 6(b) of the Pledge Agreement
or Section 2 of the Amendment No. 1 to the Pledge Agreement) (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, at the time the Pledged Items were
delivered to the Collateral Agent 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 Pledged Items or the Additions and Substitutions
(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, or into which any such Common Stock is
converted in connection with any Merger Event, and any security entitlements
in respect of any of the foregoing, (B) any obligation of the Collateral Agent
to replace any rehypothecated Collateral and (C) any amounts paid or assets
delivered to Debtor by the Collateral Agent in respect of dividends paid or
distributions made on shares of Common Stock constituting Collateral that have
been rehypothecated); and
(iv) the Share Lending Agreement and all rights thereunder;
(v) all securities and other financial assets (each as defined
in Section 8-102 of the UCC), including the Pledged Items and the Additions and
Substitutions, and other funds, property or assets from time to time held or
credited as Collateral under the Pledge Agreement; and
(vi) all powers and rights owned at the time the Pledged Items were
delivered to the Collateral Agent or thereafter acquired under or with respect
to the Pledged Items or the Additions and the Substitutions.
As used in this Schedule 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):
"Amendment No. 1 to the Pledge Agreement" means Amendment No. 1
to the Pledge Agreement, dated as of February __, 2002, among Pledgor, the
Collateral Agent and Secured Party.
"Business Day" means any day on which commercial banks are open for
business in New York City and the Exchange is not closed.
"Calculation Agent" means JPMorgan Chase Bank.
"Closing Price" means, with respect to any security on any Valuation
Date or any other Trading Day and subject to adjustment as a result of certain
events as provided in Article 6 of the Stock Purchase Agreement, the closing
sale price (or, if no closing sale price is reported, the last reported sale
price) of such security on the Exchange on such day or, if such security is
not so reported, the last quoted bid price for such security in the
over-the-counter market on such day as reported by Pink Sheets LLC (formerly
known as the National Quotation Bureau) or a similar organization or, if such
bid price is not available, the market value of such security on such day as
determined by the Calculation Agent (in each of the foregoing circumstances,
the price determination being made as of the close of regular session trading
on the relevant market); provided that if the trading hours on the Exchange
are extended to later than 4:00 p.m. (New York time), then the time as of
which the closing sale price or the last quoted bid price shall be determined
shall be selected by the Calculation Agent in its sole discretion; provided
further that the proviso contained in the definition of Valuation Date shall
apply to the price determined on any other Trading Day mutatis mutandis.
"Collateral Agent" means JPMorgan Chase Bank or any successor
appointed in accordance with Section 9 of the Pledge Agreement.
"Common Stock" means shares of common stock, par value $1.00 per
share, of the Issuer, or security entitlements in respect thereof.
"Exchange" means, at any time, the principal national securities
exchange or automated quotation system, if any, on which the Common Stock is
listed or quoted at such time.
"Issuer" means Golden State Bancorp Inc., a Delaware corporation.
"Market Disruption Event" means, with respect to any Tranche, in
relation to any Valuation Date for such Tranche, as determined by the
Calculation Agent, the occurrence or existence during the one-half hour period
that ends at the close of the regular session of trading on the Exchange of
the material suspension of or material limitation imposed on trading on (i)
the Exchange in Common Stock or in stocks generally or (ii) the primary
exchange on which options contracts or futures contracts related to Common
Stock are traded; provided that a limitation on the hours and number of days
of trading resulting from a change in the regular business hours of the
Exchange or such options exchange will not constitute a "Market Disruption
Event."
"Maturity Date" means November 16, 2003.
"Merger Event" means, in respect of shares of Common Stock, any (A)
reclassification or change of shares of Common Stock that results in a
transfer of or an irrevocable commitment to transfer 100% of the outstanding
shares of Common Stock, (B) consolidation, amalgamation or merger of the
Issuer with or into another entity (other than a consolidation, amalgamation
or merger in which the Issuer is the continuing entity and which does not
result in any such reclassification or change of 100% of the outstanding
shares of Common Stock), or (C) other takeover offer for shares of Common
Stock that results in a transfer of or an irrevocable commitment to transfer
100% of the shares of Common Stock (other than the shares of Common Stock
owned or controlled by the offeror), in each case if the Merger Date is on or
before the Settlement Date for the last Tranche hereunder. "Merger Date"
means, in respect of a Merger Event, the date upon which holders of the
necessary number of shares of Common Stock (other than, in the case of a
takeover offer, shares of Common Stock owned or controlled by the offeror)
have agreed or have irrevocably become obligated to transfer their shares of
Common Stock.
"Pledge Agreement" means the Pledge Agreement dated as of November
14, 2001, as amended by the Amendment No. 1 to the Pledge Agreement and as
further amended from time to time, among Debtor, Collateral Agent and Secured
Party.
"Pledged Items" means, as of any date, any and all securities and
instruments delivered by Pledgor to be held by the Collateral Agent under the
Pledge Agreement as Collateral.
"Share Lending Agreement" means the Share Lending Agreement dated as
of February __, 2002 between JPMorgan Chase Bank, solely in its capacity as
Agent for Debtor, and JPMorgan Chase Bank, in its capacity as borrower,
entered into pursuant to the Pledge Agreement.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated
as of November 14, 2001, as amended from time to time, between Debtor and
Secured Party, acting through X.X. Xxxxxx Securities Inc.
"Secured Party" means JPMorgan Chase Bank, in its capacity as secured
party, and its successors and assigns.
"Settlement Date" means, with respect to any Tranche, the third
Business Day immediately following the last Valuation Date for such Tranche.
"Trading Day" means, with respect to any security, a day on which the
Exchange is open for trading or quotation.
"Valuation Date" means, with respect to any Tranche, each of the five
Trading Days preceding and including the Maturity Date for such Tranche;
provided that if there is a Market Disruption Event on any Valuation Date for
such Tranche, then such Valuation Date for such Tranche shall be the first
succeeding Trading Day on which there is no Market Disruption Event and on
which another Valuation Date does not or is not deemed to occur, unless such
first succeeding Trading Day has not occurred as of the fifth Trading Day
immediately following the Maturity Date for such Tranche, in which case (i)
that fifth Trading Day shall be deemed to be the last Valuation Date for such
Tranche, notwithstanding the Market Disruption Event and (ii) notwithstanding
the definition of "Closing Price", the Calculation Agent shall determine the
Closing Price for such Tranche as of that fifth Trading Day in its discretion.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
