SAILS PLEDGE AGREEMENT
dated as of
March 8, 2001
among
GSB INVESTMENTS CORP.,
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
and
CREDIT SUISSE FIRST BOSTON CORPORATION, as Agent
TABLE OF CONTENTS
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 8th day of March, 2001 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, Mafco Holdings Inc., Secured Party and the Agent have
entered into an agreement entitled "Terms and Conditions for Private SAILS" (the
"TERM SHEET") dated as of December 29, 2000, pursuant to which Pledgor and
Secured Party have agreed to enter into certain transactions relating to the
Common Stock at the time and on the terms set forth therein;
WHEREAS, the Term Sheet provides that the transactions described
therein may be executed in one or more tranches (each, a "TRANCHE");
WHEREAS, the Term Sheet provides that the parties thereto will enter
into final documentation, consisting of a SAILS Mandatorily Exchangeable
Securities Contract and a SAILS Pledge Agreement, relating to each Tranche;
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) 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.
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(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
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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 Acontrol" as defined in Section 8-106 and Section 9-115
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, the place such party is
Adeemed located" within the meaning of Section 9-103(3)(d) 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).
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"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
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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 9-115 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.
6
(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 address set forth in Section 8(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, so long
as any of Pledgor's obligations under the Securities Contract remain
outstanding:
(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 9-115 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
7
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 9-115 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
8
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
9
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, notwithstanding Section 9-207 of the UCC, sell,
lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose
of, or otherwise use in its business (collectively, "REHYPOTHECATE"), any
Collateral, free
10
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
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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
12
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
13
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 9-504 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
14
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 Areasonable notification" within the meaning of
Section 9-504(3) of the UCC.
15
(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);
16
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. (212)
572-5965, 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
17
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 replacement, 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
18
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.
19
IN WITNESS WHEREOF, the parties have signed this 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
SECURED PARTY:
CREDIT SUISSE FIRST BOSTON
INTERNATIONAL
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director-Legal and
Compliance Department
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Vice President-Legal and
Compliance Department
AGENT:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
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 March 8, 2001 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 1,695,200 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 March 8, 2001 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
8th day of March, 2001.
GSB INVESTMENTS CORP.
By: _____________________________
Name:
Title:
