EXHIBIT 57
SAILS PLEDGE AGREEMENT
dated as of
March 13, 2002
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...........................................19
PLEDGE AGREEMENT
THIS AGREEMENT is made as of this 13th day of March, 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, 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 March 6, 2002, 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.
(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 Part 1 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 Part 1 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 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
9-102(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 ▇▇▇▇ 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, ▇▇▇ 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 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Chief Financial Officer;
notices to Secured Party shall be directed to it in care of Credit Suisse
First Boston Corporation, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(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: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
SECURED PARTY:
CREDIT SUISSE FIRST BOSTON
INTERNATIONAL
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director - Legal
Compliance Department
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director - Legal
Compliance Department
AGENT:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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 13, 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 1,168,224 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 13, 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
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▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
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:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇/▇
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this ____ day of March, 2002.
GSB INVESTMENTS CORP.
By:_____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer