EXHIBIT 28
PLEDGE AGREEMENT
dated as of
November 14, 2001
among
GSB INVESTMENTS CORP.,
JPMORGAN CHASE BANK,
as Secured Party
and
JPMORGAN CHASE BANK,
as Collateral Agent
TABLE OF CONTENTS
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PAGE
SECTION 1. The Security Interests............................................1
SECTION 2. Definitions.......................................................3
SECTION 3. Representations and Warranties of Pledgor.........................6
SECTION 4. Representations, Warranties and Agreements of the Collateral
Collateral Agent..................................................8
SECTION 5. Certain Covenants of Pledgor......................................8
SECTION 6. Administration of the Collateral and Valuation of the
Securities.......................................................10
SECTION 7. Income and Voting Rights in Collateral...........................13
SECTION 8. Remedies upon Events of Default..................................14
SECTION 9. The Collateral Agent.............................................18
SECTION 10. Miscellaneous...................................................19
SECTION 11. Set-off.........................................................20
SECTION 12. Termination of Pledge Agreement.................................21
SECTION 13. Assignment......................................................21
Exhibit A Form of Opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit B Form of Certificate for Additional Collateral
Exhibit C List of Locations
PLEDGE AGREEMENT
THIS AGREEMENT is made as of this 14th day of November, 2001,
among GSB INVESTMENTS CORP., a Delaware corporation ("Pledgor"), JPMORGAN
CHASE BANK, as collateral agent (the "Collateral Agent") hereunder for the
benefit of JPMORGAN CHASE BANK ("Secured Party"), and Secured Party.
WHEREAS, pursuant to the Stock Purchase Agreement (as amended from
time to time, the "Stock Purchase Agreement") dated as of the date hereof
between Pledgor and Secured Party, by ▇.▇. ▇▇▇▇▇▇ Securities Inc., as its
agent, Pledgor has agreed to sell and Secured Party has agreed to purchase,
in one or more transactions executed in tranches (each, a "Tranche"), up to
the Maximum Number (as defined in the Stock Purchase Agreement) of shares
of common stock, par value $1.00 per share, or security entitlements in
respect thereof (the "Common Stock"), of Golden State Bancorp Inc., a
Delaware corporation (the "Issuer"), subject to the terms and conditions of
the Stock Purchase Agreement; and
WHEREAS, it is a condition to the obligations of Secured Party
under the Stock Purchase Agreement that Pledgor, the Collateral Agent and
Secured Party enter into this Agreement and that Pledgor grant the pledge
provided for herein;
NOW, THEREFORE, in consideration of their mutual covenants
contained herein and to secure the performance by Pledgor of Pledgor's
obligations under the Stock Purchase Agreement and the observance and
performance of the covenants and agreements contained herein and in the
Stock Purchase Agreement, 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
contained herein and in the Stock Purchase Agreement:
(a) Pledgor hereby assigns, pledges and grants to the Collateral
Agent, as agent of and for the benefit of Secured Party, security interests
in and to, and a lien upon and right of set-off against, and transfers to
the Collateral Agent, as agent of and for the benefit of Secured Party, as
and by way of a security interest having priority over all other security
interests, with power of sale, in each case effective as of the time of
delivery of the Initial Pledged Items as provided in Section 1(b), all of
Pledgor's right, title and interest in and to (i) the Pledged Items
described in Section 1(b) and 1(c); (ii) all additions to and substitutions
for such Pledged Items (including, without limitation, any securities,
instruments or other property delivered or pledged pursuant to Section 5(a)
or 6(b)) (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 at 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 Pledged Items or
the Additions and Substitutions (including, without limitation, (A) any
shares of capital stock issued by the Issuer in respect of any Common Stock
constituting Collateral or any cash, securities or other property
distributed in respect of or exchanged for any Common Stock constituting
Collateral, or into which any such Common Stock is converted, in connection
with any Merger Event, and any security entitlements in respect of any of
the foregoing, (B) any obligation of the Collateral Agent to replace any
rehypothecated Collateral and (C) any amounts paid or assets delivered to
Pledgor by the Collateral Agent in respect of dividends paid or
distributions made on shares of Common Stock constituting Collateral that
have been rehypothecated); (iv) all securities and other financial assets
(each as defined in Section 8-102 of the UCC) and other funds, property or
assets from time to time held or credited as Collateral hereunder; and (v)
all powers and rights now owned or hereafter acquired under or with respect
to the Pledged Items or the Additions and the Substitutions (such Pledged
Items, such Additions and Substitutions, proceeds, collections, powers,
rights and assets held therein or credited thereto being herein
collectively called the "Collateral"). The Collateral Agent 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 the Collateral
Agent by this Agreement.
(b) Immediately upon payment of the Purchase Price with respect to
each Tranche on each Payment Date, Pledgor shall deliver to the Collateral
Agent in pledge hereunder Eligible Collateral consisting of a number of
shares of Common Stock equal to the Base Amount of such Tranche (all such
shares delivered by Pledgor pursuant to this Section 1(c), the "Initial
Pledged Shares"), in the manner provided in Section 6(c). Simultaneously
with, or prior to the delivery of such Initial Pledged Shares to the
Collateral Agent, Seller shall deliver to the Collateral Agent (i) an
opinion (in form and substance satisfactory to Buyer and its counsel),
dated as of such Payment Date, of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for Seller, to the effect set forth in Exhibit A, (ii) a copy of
such opinion or opinions under the Securities Act as may be required by the
transfer agent for the Common Stock in connection with the de-legending of
the certificate or certificates representing the Initial Pledged Shares,
(iii) a document or documents in form and substance reasonably satisfactory
to the Collateral Agent (A) evidencing the release of such shares from the
security interest granted under the Seller Pledge Agreement and the
termination of such security interest and (B) confirming the full force and
effect of the Lender Consent (including a certificate of Pledgor as to the
satisfaction of all applicable conditions precedent set forth in Section 2
thereof), and (iv) such UCC-3 termination statements, releases and such
other documents and agreements as the Collateral Agent may reasonably
request to evidence such release and termination.
(c) In the event that the Issuer at any time issues to Pledgor 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 or any cash, securities or other property distributed in respect of
or exchanged for any Collateral, or into which any such Collateral is
converted, whether in connection with any Merger Event or otherwise (or any
security entitlements in respect of the foregoing), Pledgor shall
immediately pledge and deliver to the Collateral Agent in accordance with
Section 6(c) all such shares, cash, securities, other property and security
entitlements in respect thereof as additional Collateral hereunder.
(d) The Security Interests are granted as security only and shall
not subject the Collateral Agent and 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 or credited as Collateral hereunder 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 Stock
Purchase Agreement. 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 the Collateral Agent that such
officer is authorized to act hereunder on behalf of Pledgor.
"Collateral" has the meaning provided in Section 1(a).
"Collateral Agent" means the financial institution identified as
such in the preliminary paragraph hereof, or any successor appointed in
accordance with Section 9.
"Collateral Event of Default" means, at any time, the occurrence
of either of the following: (A) failure of the Collateral to include, as
Eligible Collateral, (1) at least the Maximum Deliverable Number of shares
of Common Stock or (2) if Pledgor shall have elected to substitute
Government Securities for Share Collateral in accordance with Section 6(i),
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 (2), 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 (B)
failure at any time 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.
"Default Settlement Date" has the meaning provided in Section
8(a).
"Dividend Proceeds" 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 6(i), Government Securities; provided in each case
that Pledgor has good and marketable title thereto, free of all Liens
(other than the Security Interests) and Transfer Restrictions (other than
Existing Transfer Restrictions, but with no legends thereon referring to
any Transfer Restrictions) and that the Collateral Agent has a valid, first
priority perfected security interest therein, a first lien thereon and
Control with respect thereto, and provided further that (i) to the extent
the number of shares of Common Stock pledged hereunder exceeds at any time
the Maximum Deliverable Number thereof, such excess shares shall not be
Eligible Collateral and (ii) to the extent the Government Securities
pledged hereunder have a value (as determined by the Calculation Agent) at
any time exceeding 150% of the Market Value at such time of the Maximum
Deliverable Number of shares of Common Stock at such time, such excess
Government Securities shall not be Eligible Collateral at such time.
"Event of Default" means any condition or event which constitutes
an Event of Default as defined in the Stock Purchase Agreement, or which
with the giving of notice or the lapse of time or both would, unless cured
or waived, become an Event of Default as defined in the Stock Purchase
Agreement.
"Existing Transfer Restrictions" means the Transfer Restrictions
on the shares of Common Stock pledged hereunder arising solely from the
fact that Seller is an "affiliate", within the meaning of Rule 144 under
the Securities Act, of the Issuer.
"Government Securities" means securities issued by the United
States Government.
"Initial Pledged Shares" has the meaning provided in Section 1(b).
"Location" means, with respect to any party, the place such party
is "located" within the meaning of Section 9-307 of the Uniform Commercial
Code as in effect in each jurisdiction that may be deemed applicable to
such party.
"Maximum Deliverable Number" means, on any date, a number of
shares of Common Stock equal to sum of the Base Amounts for all Tranches,
each of them multiplied successively by each adjustment that shall have
been calculated with respect thereto on or prior to such date pursuant to
Article 6 of the Stock Purchase Agreement.
"Other Liens" has the meaning provided in Section 4(e).
"Pledged Items" means, as of any date, any and all securities and
instruments delivered by Pledgor to be held by the Collateral Agent under
this Agreement as Collateral.
"Security Interests" means the security interests in the
Collateral created hereby.
"Share Collateral" has the meaning provided in Section 6(i).
"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 the Collateral Agent and Secured Party that:
(a) Pledgor (i) acquired and made full payment for all shares of
Common Stock pledged hereunder more than two years ago and owns and, at all
times after delivery of such Collateral pursuant to Section 1(b) and prior
to the release of such Collateral pursuant to the terms of this Agreement,
will own such Collateral free and clear of any Liens (other than the
Security Interests) or Transfer Restrictions (other than the Existing
Transfer Restrictions) and (ii) as of the date of delivery of such
Collateral pursuant to Section 1(b) will not be, and until the release of
such Collateral pursuant to the terms of this Agreement 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, the Collateral Agent, Secured Party or any securities
intermediary through which 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,
no financing statement, security agreement or similar or equivalent
document or instrument covering all or any part of (i) the Collateral or
(ii) any other general intangibles of Pledgor relating to such Collateral
will, at the time of delivery of such Collateral pursuant to Section 1(b),
be 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 or such other general
intangibles relating to such Collateral, as the case may be.
(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 will, at the time of
delivery of such Collateral to the Collateral Agent pursuant to Section
1(b), 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 the Collateral Agent or held through a securities intermediary
whose 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 the Collateral Agent or held through a securities
intermediary whose 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 the
Collateral Agent to maintain, for the benefit of Secured Party, 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) the delivery of certificates evidencing investment
property (as defined in Section 9-102(a)(49) of the UCC) consisting of
securities to the Collateral Agent in accordance with Section 6(c)(i) or
the registration of any such investment property consisting of
uncertificated securities in the name of the Collateral Agent or its
nominee in accordance with Section 6(c)(ii), the Collateral Agent will
have, for the benefit of Secured Party, a valid and, as long as the
Collateral Agent retains possession of such certificates or such
uncertificated securities remain so registered, perfected security interest
therein, in respect of which the Collateral Agent will have Control,
subject to no prior Lien and (ii) the crediting of any securities or other
financial assets underlying any such investment property consisting of
security entitlements to a securities account of the Collateral Agent in
accordance with Section 6(c)(iii), the Collateral Agent will have, for the
benefit of Secured Party, a valid and, so long as such Common Stock
continues to be credited to the account of the Collateral Agent with the
applicable securities intermediary, perfected security interest in a
securities entitlement in respect thereof, in respect of which the
Collateral Agent will have 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.
(f) Pledgor has not performed and will not perform any acts that
might prevent the Collateral Agent from enforcing any of the terms of this
Agreement or that might limit the Collateral Agent in any such enforcement.
(g) All possible Locations of the Pledgor are listed on Exhibit C
hereto.
SECTION 4. Representations, Warranties and Agreements of the
Collateral Agent. The Collateral Agent represents and warrants to, and
agrees with, Pledgor and Secured Party that:
(a) The Collateral Agent is a banking corporation, duly formed,
validly existing and in good standing under the laws of the State of New
York, and has all powers and all material governmental licenses,
authorizations, consents and approvals required to enter into, and perform
its obligations under, this Agreement.
(b) The execution, delivery and performance by the Collateral
Agent of this Agreement have been duly authorized by all necessary action
on the part of the Collateral Agent and do not and will not violate,
contravene or constitute a default under any provision of applicable law or
regulation or of the certificate of formation or by-laws of the Collateral
Agent or of any material agreement, judgment, injunction, order, decree or
other instrument binding upon the Collateral Agent.
(c) This Agreement constitutes a valid and binding agreement of
the Collateral Agent enforceable against the Collateral Agent in accordance
with its terms.
(d) The Collateral Agent has not and will not enter into any
agreement pursuant to which any Person other than Pledgor, the Collateral
Agent, Secured Party, or any securities intermediary through which any
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
with respect to any Collateral.
(e) The Collateral Agent hereby agrees that all liens, pledges and
other security interests of any kind or nature held by it (other than
liens, pledges and security interests arising hereunder) in any of the
Collateral securing any obligation to the Collateral Agent (either in such
capacity or in any other capacity) (collectively, "Other Liens") shall be
subordinate and junior to the liens, pledges and security interests in the
Collateral arising hereunder and that the Collateral Agent will take no
action to enforce any Other Liens so long as any obligation under the Stock
Purchase Agreement or hereunder (whether or not then due) should remain
unsatisfied.
SECTION 5. Certain Covenants of Pledgor. Pledgor agrees that upon
delivery of the Initial Pledged Items as provided in Section 1(b) and so
long as any of Pledgor's obligations under the Stock Purchase Agreement
remain outstanding thereafter:
(a) Pledgor shall ensure at all times that a Collateral Event of
Default shall not occur, and shall pledge additional Collateral in the
manner described in Sections 6(b) and 6(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 or the Collateral Agent 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)(49) of the UCC) or
(iii) enable the Collateral Agent to exercise and enforce its rights and
the rights of Secured Party hereunder with respect to such security
interest. To the extent permitted by applicable law, Pledgor hereby
authorizes the Collateral Agent 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 the Collateral
Agent 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 the Collateral Agent and Secured
Party, against the claims and demands of all Persons. The Collateral Agent
and Secured Party (or, as they may agree, one of them) may elect, but
without an obligation to do so, to discharge any Lien of any third party on
any of the Collateral.
(d) Pledgor agrees (i) that Pledgor shall not change any of (A)
Pledgor's name, identity or corporate structure in any manner or (B)
Pledgor's Location, unless in any such case (x) Pledgor shall have given
the Collateral Agent not less than 30 days' prior notice thereof and (y)
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)(49) of the UCC) or subject any
Collateral to any other Lien.
(e) Pledgor agrees that Pledgor shall not (i) create or permit to
exist any Lien (other than the Security Interests) or any Transfer
Restriction (other than the Existing Transfer Restrictions) 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,
the Collateral Agent, Secured Party and any securities intermediary through
which 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 6. Administration of the Collateral and Valuation of the
Securities. (a) The Collateral Agent shall determine on each Business Day
whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge hereunder additional Collateral acceptable
to Secured Party at any time. Concurrently with the delivery of any
additional Eligible Collateral, Pledgor shall deliver to the Collateral
Agent a certificate of an Authorized Officer of Pledgor substantially in
the form of Exhibit B 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 Section 3(a),
3(b), 3(c) and 3(d) 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 6(c) and any other
actions necessary to create for the benefit of the Collateral Agent a
valid, first priority, perfected security interest in, and a first lien
upon, such additional Eligible Collateral, as to which the Collateral Agent
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 the Collateral
Agent by Pledgor shall be effected (i) in the case of Collateral consisting
of certificated securities registered in the name of Pledgor, by delivery
of such certificated securities, 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 (including any
related documentation required by the transfer agent for such securities in
connection with effecting or registering transfer), with signatures
appropriately guaranteed, all in form and substance satisfactory to the
issuer of and the transfer agent for such securities, (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 Collateral Agent or its nominee, accompanied by any required
transfer tax stamps, and the issuer's compliance with such instructions or
(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 Collateral Agent at such securities intermediary
or, at the option of the Collateral Agent, at another securities
intermediary satisfactory to the Collateral Agent. Upon delivery of any
such Pledged Item under this Agreement, the Collateral Agent shall examine
such Pledged Item and any certificates delivered pursuant to Section 6(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 the Collateral Agent determines that a
Collateral Event of Default shall have occurred, the Collateral Agent 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 the Collateral Agent determines that no
Event of Default or failure by Pledgor to meet any of Pledgor's obligations
under Sections 5 or 6 hereof has occurred and is continuing, Pledgor may
obtain the release from the Security Interests of any Collateral upon
delivery to the Collateral Agent 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 Settlement Date for each Tranche, unless (i) Pledgor
shall have otherwise effected the deliveries required by Section 2.03(a) of
the Stock Purchase Agreement for such Tranche or shall have delivered the
Cash Settlement Amount for such Tranche to Secured Party in lieu of shares
of Common Stock in accordance with Section 2.04 of the Stock Purchase
Agreement on the Settlement Date for such Tranche or (ii) the shares of
Common Stock then held by the Collateral Agent hereunder are not Free
Stock, the Collateral Agent shall deliver (and Pledgor hereby irrevocably
instructs the Collateral Agent to deliver, in complete or partial, as the
case may be, satisfaction of Pledgor's obligations to deliver shares of
Common Stock to an affiliate of Secured Party designated by Secured Party
on the Settlement Date for such Tranche pursuant to the Stock Purchase
Agreement) to an affiliate of Secured Party designated by Secured Party
shares of Common Stock that are Free Stock then held by the Collateral
Agent hereunder representing the number of shares of Common Stock required
to be delivered with respect to such Tranche under the Stock Purchase
Agreement on the Settlement Date for such Tranche. Upon any such delivery,
such affiliate of 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) The Collateral Agent 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 Collateral Agent or Pledgor's nominee. Pledgor shall
promptly give to the Collateral Agent 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 the Collateral Agent shall promptly give
to Pledgor copies of notices and communications received by the Collateral
Agent, in accordance with the Collateral Agent's customary procedures, with
respect to Collateral that is registered, or held through a securities
intermediary, in the name of the Collateral Agent or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to
the Collateral Agent:
(i) the amount of any taxes that the Collateral Agent or
Secured Party 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 out-of-pocket expenses,
including the fees and disbursements of counsel and of any other
experts, that the Collateral Agent or Secured Party 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 the Collateral Agent
of any of the rights conferred upon it hereunder or (D) any Event
of Default.
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 2%
plus the rate announced from time to time by JPMorgan Chase Bank
as its prime rate.
(i) 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 (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 7. Income and Voting Rights in Collateral. (a) The
Collateral Agent shall have the right to receive and retain as Collateral
hereunder (i) all proceeds (other than Ordinary Dividends or interest
("Dividend Proceeds")) of the Collateral and (ii) upon the occurrence and
during the continuance of an Event of Default, all proceeds of the
Collateral, including without limitation all Dividend Proceeds, and Pledgor
shall take all such action as the Collateral Agent shall deem necessary or
appropriate to give effect to such right. All such proceeds (other than
Dividend Proceeds received prior to the occurrence of an Event of Default)
and other payments and distributions that are received by Pledgor shall be
received in trust for the benefit of the Collateral Agent and Secured Party
and, if the Collateral Agent so directs (but only, in the case of Dividend
Proceeds, upon the occurrence and during the continuance of an Event of
Default), shall be segregated from other funds of Pledgor and shall,
forthwith upon demand by the Collateral Agent (but only, in the case of
Dividend Proceeds, during the continuance of an Event of Default), be paid
over to the Collateral Agent as Collateral in the same form as received
(with any necessary endorsement). After all Events of Default have been
cured, the Collateral Agent's right to retain Dividend Proceeds under this
Section 7(a) shall cease and the Collateral Agent shall pay over to Pledgor
any such Collateral consisting of Dividend Proceeds retained by it during
the continuance of any such Event of Default.
(b) Notwithstanding Section 7(a), upon receipt of any
Extraordinary Dividend, the Collateral Agent shall deliver (and Pledgor
hereby irrevocably instructs the Collateral Agent to deliver in
satisfaction of Pledgor's obligation to pay or deliver the cash and/or
other property distributed in such Extraordinary Dividend to Secured Party
pursuant to Section 6.01(a)(B) of the Stock Purchase Agreement) to Secured
Party the cash and/or other property distributed in such Extraordinary
Dividend.
(c) Unless an Event of Default 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 any Collateral that has been rehypothecated by the Collateral
Agent), and the Collateral Agent shall, upon receiving a written request
from Pledgor accompanied by a certificate of an Authorized Officer of
Pledgor stating that no Event of Default shall have occurred and be
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 Collateral Agent or its nominee as shall
be specified in such request and shall be in form and substance
satisfactory to the Collateral Agent.
(d) If an Event of Default shall have occurred and be continuing,
the Collateral Agent 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 the Collateral Agent were
the absolute and sole owner thereof.
SECTION 8. Remedies upon Events of Default. (a) If any Event of
Default shall have occurred and be continuing, the Collateral Agent may
exercise on behalf of Secured Party 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 all Collateral consisting
of shares of Common Stock that are Free Stock (but not in excess of the
number thereof deliverable with respect to all Tranches that have been
accelerated under the Stock Purchase Agreement at such time) to an
affiliate of Secured Party designated by Secured Party on the date of each
Acceleration Amount Notice for such Tranches relating to such Event of
Default (the "Default Settlement Date") in satisfaction of Pledgor's
obligations to deliver Free Stock for such Tranches under the Stock
Purchase Agreement, whereupon such affiliate shall hold such shares of
Common Stock 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; and (ii) if such delivery shall be insufficient to
satisfy in full all of the obligations of Pledgor with respect to all
Tranches that have been accelerated under the Stock Purchase Agreement 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 with respect to all Tranches that
have been accelerated under the Stock Purchase Agreement 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 the Collateral Agent may deem satisfactory. Pledgor covenants
and agrees that Pledgor will execute and deliver such documents and take
such other action as the Collateral Agent deems necessary or advisable in
order that any such sale may be made in compliance with law. Upon any such
sale the Collateral Agent 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 the Collateral Agent 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 the Collateral Agent may determine. The
Collateral Agent shall not be obligated to make any such sale pursuant to
any such notice. The Collateral Agent 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
the Collateral Agent until the selling price is paid by the buyer thereof,
but the Collateral Agent 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. The Collateral Agent, 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 the Collateral Agent
Pledgor's true and lawful attorney, with full power of substitution, in the
name of Pledgor, the Collateral Agent or Secured Party or otherwise, for
the sole use and benefit of the Collateral Agent and 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 Event of Default 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 the Collateral Agent 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 the Collateral Agent 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.
The Collateral Agent and Pledgor agree that such notice constitutes
"reasonable authenticated notification" within the meaning of Section 9-611
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, the Collateral Agent 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 the Collateral Agent 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 the Collateral Agent, 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 the Collateral Agent, 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 Event of Default, the Collateral Agent 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 the Collateral
Agent shall determine in its sole discretion subject to the foregoing
provisions of this Section 8. The proceeds of any sale of, or other
realization upon, or other receipt from, any of the Collateral shall be
applied by the Collateral Agent in the following order of priorities:
first, to the payment to the Collateral Agent of the expenses of
such sale or other realization, including reasonable compensation
to the Collateral Agent and its agents and counsel, and all
expenses, liabilities and advances incurred or made by the
Collateral Agent in connection therewith, including brokerage fees
in connection with the sale by the Collateral Agent of any
Collateral;
second, to the payment to Secured Party of an amount equal to sum
of the Market Values of the number of shares of Common Stock on
the respective Acceleration Date for each Tranche that has been
accelerated under the Stock Purchase Agreement equal, in the case
of each such Tranche, to (i) the number of shares of Common Stock
required to be delivered on the Default Settlement Date for such
Tranche under Section 7.01 of the Stock Purchase Agreement without
giving effect to the proviso in such Section 7.01 minus (ii) the
number of shares of Common Stock delivered on the Default
Settlement Date for such Tranche by the Collateral Agent to
Secured Party as described in Section 8(a); and
finally, if all of the obligations of Pledgor hereunder and for
each Tranche under the Stock Purchase Agreement have been fully
discharged or sufficient funds have been set aside by the
Collateral Agent at the request of Pledgor for the discharge
thereof, any remaining proceeds shall be released to Pledgor.
(e) Pledgor recognizes that Secured Party may not choose to effect
a public sale of all or a part of the Collateral by reason of certain
prohibitions contained (x) in the Securities Act of 1933, as amended, as
now or hereafter in effect, or (y) in applicable Blue Sky or other state
securities laws, as now or hereafter in effect, and may resort to one or
more private sales to a restricted group of purchasers who will be obliged
to agree, among other things, to acquire such Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. Pledgor agrees that private sales so made may be at prices and
other terms less favorable to the seller than if such Collateral were sold
at public sales, and that Secured Party has no obligation to delay sale of
any such Collateral for the period of time necessary to permit the issuer
of such Collateral, even if such issuer would agree, to register such
Collateral for public sale under such applicable securities laws. The
Pledgor agrees that private sales made under the foregoing circumstances
shall be deemed to have been made in a commercially reasonable manner.
SECTION 9. The Collateral Agent. (a) Secured Party hereby
irrevocably appoints and authorizes the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Collateral Agent by the terms hereof,
together with all such powers as are reasonably incidental thereto.
(b) The obligations of the Collateral Agent hereunder are only
those expressly set forth in this Agreement.
(c) The Collateral Agent may consult with legal counsel,
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or
experts.
(d) Neither the Collateral Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or not
taken by it in connection with this Agreement (1) with the consent or at
the request of Secured Party or (2) in the absence of its own gross
negligence or willful misconduct. The Collateral Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement or other writing (which may be a bank wire, telex or similar
writing) believed by it to be genuine or to be signed by the proper party
or parties.
(e) Pledgor shall indemnify the Collateral Agent against any cost,
expense (including counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from the Collateral Agent's gross
negligence or willful misconduct) that the Collateral Agent may suffer or
incur in connection with this Agreement or any action taken or omitted by
the Collateral Agent hereunder.
(f) Beyond the exercise of reasonable care in the custody thereof,
the Collateral Agent shall have no duty as to any Collateral in its
possession or control or in the possession or control of any agent, bailee,
clearing corporation or securities intermediary or any income thereon or as
to the preservation of rights against prior parties or any other rights
pertaining thereto. The Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral if the
Collateral is accorded treatment substantially equal to that which it
accords its own property, and shall not be liable or responsible for any
loss or damage to any of the Collateral, or for any diminution in the value
thereof, by reason of the act or omission of any agent, bailee, clearing
corporation or securities intermediary selected by the Collateral Agent in
good faith (or selected by an agent, bailee, clearing corporation or
securities intermediary so selected by the Collateral Agent or by any
agent, bailee, clearing corporation or securities intermediary selected in
accordance with this parenthetical phrase).
(g) Any corporation or association into which the Collateral Agent
may be converted or merged, or with which it may be consolidated, or to
which it may sell or transfer its agency business and assets as a whole or
substantially as a whole, or any corporation or association resulting from
any such conversion, sale, merger, consolidation or transfer to which it is
a party, shall, subject to the prior written consent of Secured Party, be
and become a successor Collateral Agent hereunder and vested with all of
the title to the Collateral and all of the powers, discretions, immunities,
privileges and other matters as was its predecessor without, except as
provided above, the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 10. Miscellaneous. (a) 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 the Collateral Agent shall bind,
and inure to the benefit of, their respective successors and assigns
whether so expressed or not, and shall be enforceable by and inure to the
benefit of Secured Party and its successors and assigns.
(b) 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.
(c) 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, the Collateral Agent 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 any 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.
(d) 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. 212-572- 5965, Attention: Chief Financial Officer; notices to
the Collateral Agent or Secured Party shall be directed to it at JPMorgan
Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
EDG Corporate Marketing (▇▇▇▇ ▇▇▇▇), Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Collateral Ops, 3 OPS 2, Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇.
(e) 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, the
Collateral Agent on behalf of Secured Party shall have, in addition to any
rights under the laws of the State of New York, all of the rights to which
a secured party is entitled under the laws of such other jurisdiction. The
parties hereto hereby agree that the Collateral Agent'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.
(f) Each party hereby irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the Federal and state courts located in
the Borough of Manhattan in the City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby.
(g) 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.
(h) 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.
SECTION 11. Set-off. The parties hereto acknowledge and agree that
each of them may elect to set-off any or all of its obligations to the
other party under any agreement between the parties against any or all of
its rights to obtain performance from such other party under any other
agreement between such parties.
SECTION 12. 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
for each Tranche under the Stock Purchase Agreement 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 the Collateral Agent, all at the request and expense of Pledgor.
SECTION 13. Assignment. Neither Secured Party nor Pledgor may
assign its rights or delegate its obligations under this Agreement, except
with the prior written consent of the other parties hereto, and any
purported assignment or delegation without such prior written consent shall
be void and of no effect; provided that, notwithstanding any other
provision of this Agreement or the Stock Purchase Agreement to the contrary
requiring Secured Party to purchase, sell, receive or deliver any shares of
Common Stock or other securities to or from Pledgor, Secured Party may
designate any of its affiliates to purchase, sell, receive or deliver such
shares or other securities or otherwise to perform Secured Party's
obligations in respect of the transactions contemplated hereunder and under
the Stock Purchase Agreement and any such designee may assume such
obligations, and Secured Party shall be discharged of its obligations to
Pledgor to the extent of any such performance.
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
COLLATERAL AGENT:
JPMORGAN CHASE BANK, as Collateral
Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Assistant General
Counsel
SECURED PARTY:
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Assistant General
Counsel
Exhibit A
(a) The execution and delivery of this Agreement and the Stock
Purchase Agreement and the performance by Seller of Seller's obligations
hereunder and thereunder do not constitute a violation of, or result in a
breach or default under, any agreement or instrument listed on a schedule
to such opinion.
Exhibit B
CERTIFICATE FOR ADDITIONAL COLLATERAL
The undersigned, an officer of GSB Investments Corp. ("Pledgor"),
hereby certifies, pursuant to Section 6(b) of the Pledge Agreement, dated
as of November 14, 2001, among Pledgor, JPMorgan Chase Bank, as Collateral
Agent, and JPMorgan Chase Bank, as Secured Party (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 6(c) of the Pledge Agreement, the following
securities (or security entitlements in respect thereof) to the Collateral
Agent to be held by the Collateral Agent as additional Collateral (the
"Additional Collateral"):
2. Pledgor hereby represents and warrants to the Collateral
Agent that the Additional Collateral is Eligible Collateral and that the
representations and warranties contained in Sections 3(a), 3(b), 3(c) and
3(d) of the Pledge Agreement are true and correct with respect to the
Additional Collateral on and as of the date hereof.
This Certificate may be relied upon by Secured Party as fully and
to the same extent as if this Certificate had been specifically addressed
to Secured Party.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this [___] day of [__________, ___].
By:
--------------------------------
Name:
Title:
Exhibit C
List of Locations pursuant to Section 3(g):
Delaware
CROSS-REFERENCE TARGET LIST
NOTE: Due to the number of targets some target names may not appear in the target pull-down list.
(This list is for the use of the wordprocessor only, is not a part of this document and may be discarded.)
ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME ARTICLE/SECTION TARGET NAME
============================== ============================== ============================== =============================
1(a).......................1a
----
1(b)......................001
----
1(c)......................002
----
1(e)......................016
----
3(a)......................003
----
3(b)......................004
----
3(c)......................005
----
3(d)......................006
----
3(g)......................018
----
4(e)............liens.pledges
----
5.........................007
-
5(a)......................008
----
6.......................sec.6
-
6(a).......................6a
----
6(b).......................6b
----
6(c).......................6c
----
6(c)(i)...................009
-------
6(c)(ii)..................010
--------
6(c)(iii).................011
---------
6(d).......................6d
----
6(e).......................6e
----
6(f).......................6f
----
6(g).......................6g
----
6(h).......................6h
----
6(h)(i).............amt.taxes
-------
6(h)(ii).............out.pock
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7.......................sec.7
-
7(a)......................012
----
8.........................013
-
8(a)......................014
----
9.........................015
-
10(a).....................017
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12..............term.pldg.agt
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