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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
TERMS AND CONDITIONS FOR PRIVATE SAILS
Sellers: Mafco Holdings Inc. ("Parent") and GSB
Investments Corp., an indirect wholly-owned
subsidiary of Parent ("Subsidiary", and each
of Parent and Subsidiary, a "Seller").
Purchaser: Credit Suisse First Boston International.
Agent: Credit Suisse First Boston Corporation.
Calculation Agent: Credit Suisse First Boston International or
an affiliate thereof. All determinations and
calculations of the Calculation Agent shall
be made in good faith and in a commercially
reasonable manner.
Issue: SAILS (Shared Appreciation Income Linked
Securities) Mandatorily Exchangeable
Securities Contract (the "Contract"),
maturing on the Maturity Date, relating to
the Underlying Shares. The Contract may be
executed in one or more tranches (each, a
"Tranche").
Underlying Shares: Up to 1,695,200 shares of Common Stock, par
value $1.00 per share (the "Common Stock"),
of Golden State Bancorp Inc. (the "Issuer").
Aggregate Contract Price: For any Tranche, an amount equal to the
product of (a) the Issue Price for such
Tranche and (b) the Base
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
Amount for such Tranche.
Base Amount: For any Tranche, the number of shares of
Common Stock (the "Hedge Shares" with respect
to such Tranche) sold by Purchaser in
connection with hedging its exposure to the
transactions contemplated hereby during the
period from and including the Issue Date
immediately preceding the Issue Date for such
Tranche (or if there is no preceding Issue
Date, the date hereof) to but excluding the
Issue Date for such Tranche.
Issue Price: For any Tranche, the average price per share
at which Purchaser sells the Hedge Shares
with respect to such Tranche. Any such sales
will be made pursuant to the terms set forth
under "Registration of Hedge Sales" below.
Final Issue Date: The date of completion of Purchaser's initial
hedging activities in connection with the
transactions contemplated hereby (which shall
in no event be later than March 27, 2001).
Issue Date: Each of the following shall be an Issue Date
with respect to a Tranche: (i) the Final
Issue Date and (ii) any business day on or
prior to the Final Issue Date if (A) such day
is designated as an Issue Date by Sellers
upon three business days' written notice to
Purchaser, (B) such day is the first business
day following the 29th calendar day after the
Issue Date immediately preceding such day (or
if there is no preceding Issue Date, the
Closing Date), (C) the number of Hedge Shares
sold by Purchaser during
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
CREDIT | FIRST
SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
the period beginning on the Issue Date
immediately preceding such day (or if there
is no preceding Issue Date, the Closing Date)
and ending on such day is equal to or greater
than 1,000,000 or (D) the Total Exposure on
such day is equal or greater than $10
million.
Total Exposure: At any time, the product of (i) the excess,
if any, of (A) the market price per share of
Common Stock at such time over (B) the
average price per share at which Purchaser
has sold Hedge Shares during the period
beginning on the immediately preceding Issue
Date and ending at such time and (ii) the
number of Hedge Shares sold during such
period.
Closing Date: For any Tranche, three business days
following the Issue Date for such Tranche.
Maturity Date: For any Tranche, two years following the
initial Closing Date.
Maturity Price: The average closing price per share of Common
Stock on the first 20 trading days beginning
30 Exchange Business Days (days when the
national exchange on which the Common Stock
is listed or quoted is scheduled to be open)
prior to the Maturity Date.
Threshold Price: For any Tranche, 120% of the Issue Price for
such Tranche.
Proceeds Amount: For any Tranche, 83.51% of the Aggregate
Contract Price for such Tranche. The Proceeds
Amount shall
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
be paid by Purchaser to Subsidiary on the
Closing Date for such Tranche.
Settlement: On the Maturity Date, Sellers will deliver to
Purchaser an aggregate number of freely
transferable shares of Common Stock (or cash
with an equal value) equal to the sum of the
Contract Share Amounts for each Tranche.
Contract Share Amount: For any Tranche, the product of (a) the Base
Amount for such Tranche and (b) the Exchange
Rate for such Tranche.
Exchange Rate: The Exchange Rate for each Tranche will be
equal to:
(a) if the Maturity Price is less than or
equal to the Issue Price for such
Tranche, one;
(b) if the Maturity Price is greater than
the Issue Price for such Tranche but
less than or equal to the Threshold
Price for such Tranche, the quotient of
such Issue Price divided by the Maturity
Price; and
(c) if the Maturity Price is greater than
the Threshold Price for such Tranche,
one minus a fraction, the numerator of
which is equal to the excess of such
Threshold Price over the Issue Price for
such Tranche and the denominator of
which is equal to the Maturity Price.
Early Termination: At any time on or after the date six months
following the final Closing Date, each
Tranche shall be subject
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
to termination in whole or in part at the
option of Sellers, upon 35 Exchange Business
Days' notice, at a price equal to Purchaser's
replacement cost for the terminated portion
of such Tranche, as determined by the
Calculation Agent.
Adjustments: The Base Amount, the Issue Price, the
Threshold Price and other variables relevant
to the settlement of each Tranche shall be
subject to adjustment if the Issuer (i)
subdivides, consolidates or reclassifies the
Common Stock, (ii) pays a dividend or
distribution of Common Stock, rights,
warrants or other assets on the Common Stock,
(iii) pays a cash dividend (other than an
Ordinary Cash Dividend) on the Common Stock,
(iv) makes a call in respect of Common Stock
not fully paid, (v) repurchases Common Stock
or (vi) takes any similar action, in each
case, which action has a diluting or
concentrative effect on the theoretical value
of the Common Stock; provided that in the
case of clause (iii) above, any such
adjustment shall be made to variables other
than the Base Amount.
In the event of (a) a consolidation or merger
of the Issuer, (b) any sale, transfer, lease
or conveyance of the property of the Issuer
as an entirety or substantially as an
entirety, (c) any statutory exchange of
securities of the Issuer or (d) any
liquidation, dissolution or winding up of the
Issuer, then:
(i) if the successor to the Issuer is a
publicly-traded
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
entity with a public float as large as
or larger than the Issuer immediately
prior to such event, so long as the
consideration received by holders of
Common Stock does not consist solely of
non-stock consideration, Purchaser will
be entitled to receive (A) on the
Maturity Date the number of shares of
common stock of such successor
represented by the shares of Common
Stock that otherwise would have been
deliverable and (B) a cash payment on
the date of the closing of such event
(the "Reorganization Termination Date")
equal to the replacement value, as
determined by the Calculation Agent, of
the percentage of each Tranche equal to
the percentage of non-stock
consideration (as a percentage of the
total consideration) received in such
event; or
(ii) in any other case, the Maturity Date
will be accelerated to the
Reorganization Termination Date so that
Purchaser will receive on the
Reorganization Termination Date its
replacement value for each Tranche, as
determined by the Calculation Agent,
payable in cash or any freely
transferable securities received by
either Seller in such event.
Registration of Hedge Sales: Subsidiary shall be named as a selling
shareholder in a registration statement (the
"Registration Statement") covering the public
sale by Purchaser of shares of Common Stock
in connection with hedging Purchaser's
exposure to the transactions contemplated
hereby. The Registration Statement
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
shall be filed by the Issuer and declared
effective under the Securities Act by the
Securities and Exchange Commission. Sellers,
the Issuer and Purchaser (or an affiliate of
Purchaser designated by Purchaser) shall
enter into an agreement (the "Registration
Agreement") in connection with the public
sale of such shares by Purchaser in a form
customary for underwritten secondary
offerings of equity securities lead managed
by Credit Suisse First Boston Corporation
(which agreement shall include, without
limitation, representations and warranties of
Sellers and the Issuer, provisions relating
to indemnification of, and contribution in
connection with the liability of, Purchaser
and its affiliates by both the Issuer and
Sellers, payment by the Issuer or Sellers
of all registration expenses and the delivery
by both the Issuer and Sellers of legal
opinions, secretary's and executive officer's
certificates, accountants' comfort letters
and other customary closing documents).
Dividend Payment: Sellers shall pay to Purchaser on the
business day following the payment of any
cash dividend (other than an Ordinary Cash
Dividend) with respect to the Common Stock
(the "Dividend Payment Date") an amount in
cash equal to the product (the "Dividend
Payment Amount") of (i) the per share amount
of such dividend and (ii) the sum of the Base
Amounts for each Tranche on the ex-dividend
date for such dividend.
Ordinary Cash Dividends: For any given quarterly fiscal period, cash
dividends paid in respect of the Common Stock
during such
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
period, but only to the extent that the
aggregate amount of cash dividends paid
during such period does not exceed $0.10
per share.
Collateral Arrangements: Subsidiary shall deposit on the Closing Date
for each Tranche, and shall maintain on and
after such Closing Date, in a Collateral
Account with Purchaser a number of shares of
Common Stock free and clear of any liens or
transfer restrictions (other than
restrictions on transfer imposed by the
Securities Act of 1933, as amended (the
"Securities Act")) equal to Base Amount for
such Tranche, to secure the obligations of
Sellers in respect of such Tranche.
Immediately upon payment of the Proceeds
Amount, Sellers shall deliver to Purchaser
any documents as Purchaser may reasonably
request to evidence that such shares have
been delivered free and clear of any such
liens or transfer restrictions. Upon the
consent of Seller, Purchaser may borrow or
otherwise rehypothecate Common Stock from
the Collateral Account; provided that any
such borrowing or rehypothecation shall be
effected such that this provision will
satisfy the requirements of a securities
lending transaction under Section 1058 of the
Internal Revenue Code of 1986, as amended.
The Collateral Agreement will include
standard provisions for dividends and voting,
including the loss of voting rights with
respect to any shares actually borrowed or
rehypothecated by Purchaser. Upon the early
termination of any Tranche by Sellers, a
corresponding number of shares will be
returned to
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
Subsidiary and will cease to be security.
Subsidiary shall have the right at any time
during the term of the Contract to substitute
for all (but not less than all) of the Common
Stock pledged as collateral (the "Share
Collateral") United States government
securities with a value at least equal to
150% of the value of the Share Collateral,
marked to market on a daily basis. Upon the
substitution described in the immediately
preceding sentence, the Share Collateral
shall be returned to Subsidiary and shall no
longer be treated as collateral.
Reimbursement Obligation: If Sellers fail to make available (by reason
of Securities Act restrictions or otherwise)
at any time, a number of shares of Common
Stock equal to the sum of the Base Amounts
for each Tranche for the purpose of
securities lending or hypothecation, Sellers
shall make cash payments to Purchaser from
time to time in an amount sufficient to
reimburse Purchaser for any costs relating to
the borrowing of such shares of Common Stock
during the period such unavailability exists.
Representations and Warranties: Sellers
represent and warrant to Purchaser that:
(a) Each Seller is a corporation duly
organized and existing in good standing
under the laws of the State of Delaware;
(b) The execution and delivery of this term
sheet and the performance by each Seller
of such Seller's obligations hereunder
do not violate or conflict
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
with any provision of the certificate of
incorporation or bylaws of such Seller,
any law, order or judgment applicable to
such Seller or any of such Seller's
assets or any contractual restriction
binding on or affecting such Seller or
any of such Seller's assets (it being
understood that the existence on any
date after the date hereof of factual
contingencies to the effectiveness on
the Closing Date for any Tranche of any
consent required to be obtained under
any agreement in connection with the
execution or delivery of this term sheet
or the consummation of the transactions
contemplated hereby shall not be deemed
to give rise to any breach of the
representation and warranty set forth in
this paragraph (b) with respect to
contractual restrictions binding on or
affecting either Seller or any of such
Seller's assets);
(c) The execution and delivery of this term
sheet by each Seller and the
consummation by such Seller of the
transactions contemplated hereby have
been duly authorized by all necessary
corporate action;
(d) Each Seller has duly executed this term
sheet. Each Seller's obligations under
this term sheet constitute such Seller's
legal, valid and binding obligations,
enforceable in accordance with their
respective terms (subject to applicable
bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting
creditors' rights generally and subject,
as to enforceability,
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
to equitable principles of general
application (regardless of whether
enforcement is sought in a proceeding
in equity or at law));
(e) Each Seller is acting for such Seller's
own account, and has made such Seller's
own independent decision to enter into
this transaction and as to whether this
transaction is appropriate or proper for
such Seller based upon such Seller's own
judgment and upon advice of such
advisors as such Seller deems necessary.
Each Seller acknowledges and agrees that
such Seller is not relying, and has not
relied, upon any communication (written
or oral) of Purchaser or any affiliate,
employee or agent of Purchaser with
respect to the legal, accounting, tax or
other implications of this transaction
and that such Seller has conducted such
Seller's own analyses of the legal,
accounting, tax and other implications
hereof; it being understood that
information and explanations related to
the terms and conditions of this
transaction shall not be considered
investment advice or a recommendation to
enter into this transaction. Each Seller
is entering into this transaction with a
full understanding of all of the terms
and risks hereof (economic and
otherwise) and is capable of evaluating
and understanding (on such Seller's own
behalf or through independent
professional advice), and understands
and accepts, the terms, conditions and
risks. Each Seller is also capable of
assuming (financially and otherwise),
and
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
assumes, those risks. Each Seller
acknowledges that neither Purchaser nor
any affiliate, employee or agent of
Purchaser is acting as a fiduciary for
or an adviser to such Seller in respect
of this transaction;
(f) The terms hereof have been negotiated,
and the transactions contemplated hereby
shall be executed, on an arm's length
basis;
(g) Neither Seller is and, after giving
effect to the transactions contemplated
hereby, neither Seller will be an
"investment company", as such term is
defined in the Investment Company Act of
1940, as amended (the "1940 Act"), that
is required to be registered under the
1940 Act; and
(h) Neither Seller is in possession of any
material non-public information
regarding the Issuer.
Purchaser represents and warrants to Sellers
that:
(a) Purchaser is a company duly organized
and existing in good standing under the
laws of the jurisdiction of
incorporation;
(b) The execution and delivery of this term
sheet and the performance by Purchaser
of Purchaser's obligations hereunder do
not violate or conflict with any
provision of the constitutive documents
of Purchaser, any law, order or judgment
applicable to Purchaser or any of
Purchaser's assets or any contractual
restriction binding on or affecting
Purchaser or any of Purchaser's assets;
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
(c) The execution and delivery of this term
sheet by Purchaser and the consummation
by Purchaser of the transactions
contemplated hereby have been duly
authorized by all necessary corporate
action;
(d) Purchaser has duly executed this term
sheet. Purchaser's obligations under
this term sheet constitute Purchaser's
legal, valid and binding obligations,
enforceable in accordance with their
respective terms (subject to applicable
bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting
creditors' rights generally and subject,
as to enforceability, to equitable
principles of general application
(regardless of whether enforcement is
sought in a proceeding in equity or at
law));
If, at any time during the period beginning
on the date hereof and ending on the final
Closing Date, any of the representations and
warranties of Sellers or Purchaser set forth
above are not true, correct and complete as
if made as of such time, the maker of such
representation or warranty shall notify the
other parties hereto as promptly as
practicable.
Events of Default: The final documentation for each Tranche will
contain customary Events of Default,
including the following:
(a) failure to perform any covenant
thereunder for 60 days after notice of
breach;
(b) in the judgment of the Calculation
Agent, Purchaser is unable to hedge
Purchaser's
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
exposure to the transactions
contemplated hereby because of the lack
of sufficient shares of Common Stock
(not to exceed the sum of the Base
Amounts for each Tranche) being made
available for share borrowing by
lenders, including without limitation
lenders identified by Sellers with whom
Purchaser shall consult;
(c) certain events of cross-default,
bankruptcy, insolvency or reorganization
with respect to either Seller; and
(d) failure to deliver (i) the freely
transferable shares of Common Stock (or
cash with equal value) required on any
Maturity Date, (ii) the cash amounts
(or, if applicable, freely transferable
securities) required on any
Reorganization Termination Date or any
date on which any Tranche is terminated
in whole or in part pursuant to the
terms set forth under "Early
Termination" above or (iii) any Dividend
Payment Amount on any Dividend Payment
Date.
Upon the occurrence of an Event of Default,
Purchaser may terminate any Tranche at a
price (payable in Common Stock or, if
Purchaser has substituted United States
government securities as collateral pursuant
to the terms set forth under "Collateral
Arrangements" above, in cash) equal to
Purchaser's replacement cost for such
Tranche, as determined by the Calculation
Agent.
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
CREDIT | FIRST
SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
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<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
Capital Structure: The Contract will be a secured forward
contract of each Seller.
Conditions Precedent: If, at any time prior to the Final Issue
Date, any of the following conditions are not
satisfied:
(a) the representations and warranties of
each Seller shall be true and correct as
if made at such time and each Seller
shall have performed all of its
obligations required to be performed by
it hereunder;
(b) any consent required to be obtained
under any agreement in connection with
the execution or delivery of this term
sheet or the consummation of the
transactions contemplated hereby shall
have been obtained and shall be in full
force and effect and the conditions of
any such consent shall have been
satisfied;
(c) Sellers shall have delivered to
Purchaser evidence acceptable to
Purchaser that the condition set forth
in paragraph (b) above is satisfied;
(d) the representations and warranties of
Sellers and the Issuer contained in the
Registration Agreement and any
certificate delivered pursuant thereto
shall be true and correct as if made at
such time and each of Sellers and the
Issuer shall have performed all of the
obligations required to be performed by
it under the Registration
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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15
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
Agreement; or
(e) on each Representation Date (as defined
in the Registration Agreement) that
shall have occurred prior to such time,
Davis Polk & Wardwell, counsel to
Purchaser, in its professional judgment,
shall have been able to provide an
opinion to Purchaser relating to the
disclosure in the Registration Statement
in form and substance acceptable to
Purchaser;
any Tranche that has not been consummated
prior to such date shall be terminated and
unwound and Sellers shall deliver to
Purchaser an amount in cash (the "Net Payment
Amount" with respect to each such Tranche)
equal to the aggregate amount of costs and
expenses (including market losses) relating
to the unwinding of Purchaser's hedging
activities in respect of such Tranche
(provided that if such Net Payment Amount is
negative, Purchaser shall deliver to
Subsidiary an amount in cash equal to the
absolute value of such Net Payment Amount).
Conditions Precedent to The payment of the Proceeds Amount for each
Payment of the Proceeds Tranche on the Closing Date for such Tranche
Amount: is subject to (a) Purchaser's legal,
regulatory, credit and risk approval of the
transaction, (b) the delivery by Sellers to
Purchaser of a customary corporate opinion of
nationally recognized counsel acceptable to
Purchaser in form and substance acceptable to
Purchaser, (c) the truth and correctness of
the representations and warranties of each
Seller and the
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
performance by each Seller of its obligations
hereunder (including without limitation the
performance of the obligations set forth
under "Collateral Arrangements" above) and
under the final documentation described under
"Breakage Costs" below, (d) the receipt by
Purchaser of evidence reasonably acceptable
to Purchaser that immediately upon payment of
the Proceeds Amount for such Tranche, a
number of shares of Common Stock equal to the
Base Amount for such Tranche shall be
delivered to Purchaser free and clear of any
liens or transfer restrictions (other than
restrictions on transfer imposed by the
Securities Act) pursuant to the term set
forth in "Collateral Arrangements" above and
(e) the satisfaction of each condition set
forth in "Conditions Precedent" above.
Breakage Costs: The parties expect to execute final
documentation relating to each Tranche after
Purchaser has completed its hedging
activities in connection with such Tranche.
If (i) Sellers fail to fulfill their
obligations hereunder with respect to any
Tranche or any of the conditions set forth in
"Conditions Precedent to Payment of the
Proceeds Amount" above or in the final
documentation relating to such Tranche are
not satisfied or (ii) final documentation
reasonably satisfactory to Purchaser relating
to
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
such Tranche has not been executed by 5:00
p.m., New York City time on the date six
weeks following the Issue Date for such
Tranche, such Tranche shall be terminated and
unwound and Sellers shall deliver to
Purchaser the Net Payment Amount with respect
to such Tranche (provided that if such Net
Payment Amount is negative, Purchaser shall
deliver to Subsidiary an amount in cash equal
to the absolute value of such Net Payment
Amount). Notwithstanding any provision hereof
to the contrary, if on the Closing Date for
any Tranche, Sellers are unable to satisfy
the conditions to any consent required to be
obtained in order for Sellers to perform
their obligations hereunder, Sellers may
elect to satisfy their obligations hereunder
by terminating and unwinding such Tranche and
any subsequent Tranche that has not been
consummated and delivering to Purchaser the
Net Payment Amount with respect to such
Tranche in lieu of the other payments or
deliveries provided herein (provided that if
such Net Payment Amount is negative,
Purchaser shall deliver to Subsidiary an
amount in cash equal to the absolute value of
such Net Payment Amount).
Assignment: The rights and duties hereunder and under the
Contract and Collateral Agreement may not be
assigned or transferred by any party hereto
or thereto without the prior written consent
of the other parties hereto or thereto;
provided that Purchaser may assign or
transfer any of its rights or duties
hereunder or thereunder with the prior
written consent of each Seller (which consent
shall not be unreasonably withheld).
Joint and Several The obligations of Sellers hereunder shall be
Obligations: joint and several.
Governing Law: This term sheet shall be governed by and
construed
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
in accordance with the laws of the State of
New York without reference to choice of law
doctrine.
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
CREDIT | FIRST
SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
19
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
Understood and Agreed to, this 29th day of December, 2000:
MAFCO HOLDINGS INC.
By: /s/ Todd J. Slotkin
--------------------------------------
Name: Todd J. Slotkin
Title: Executive Vice President and
Chief Financial Officer
GSB INVESTMENTS CORP.
By: /s/ Todd J. Slotkin
--------------------------------------
Name: Todd J. Slotkin
Title: Executive Vice President and
Chief Financial Officer
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ Edmond Curtin
--------------------------------------
Name: Edmond Curtin
Title: Director-Legal and Compliance Department
By: /s/ Ritu Nagpal
--------------------------------------
Name: Ritu Nagpal
Title: Director-Legal and Compliance Department
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
CREDIT | FIRST
SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
20
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
CREDIT SUISSE FIRST BOSTON
CORPORATION, as Agent
By: /s/ Timothy D. Bock
--------------------------------------
Name: Timothy D. Bock
Title: Managing Director
By entering into a transaction with Purchaser, you acknowledge that you have
read and understood the following terms: Purchaser is acting solely as an arm's
length contractual counterparty and not as your financial adviser or fiduciary
unless it has agreed to so act in writing. Before entering into any transaction
you should ensure that you fully understand its potential risks and rewards and
independently determine that it is appropriate for you given your objectives,
experience, financial and operational resources, and other relevant
circumstances. You should consult with such advisers as you deem necessary to
assist you in making these determinations. You should also understand that
Purchaser or its affiliates may provide banking, credit and other financial
services to any company or issuer of securities or financial instruments
referred to herein, underwrite, make a market in, have positions in, or
otherwise buy and sell securities or financial instruments which may be
identical or economically similar to any transaction entered into with you. Any
indicative terms provided to you are provided for your information only and do
not constitute an offer, a solicitation of an offer, or any advice or
recommendation to conclude any transaction (whether on the indicative terms or
otherwise). Any indicative price quotations, disclosure materials or analyses
provided to you have been prepared on assumptions and parameters that reflect
good faith determinations by us or that have been expressly specified by you and
do not constitute advice by us. The assumptions and parameters used are not the
only ones that might reasonably have been selected and therefore no guarantee is
given as to the accuracy, completeness, or reasonableness of any such
quotations, disclosure or analyses. The parties hereby agree that (i) Seller is
not obligated to keep confidential or otherwise limit the use of any element of
any description contained herein that is necessary to understand or support any
United States federal income tax treatment and (ii) Purchaser does not assert
any claim of proprietary ownership in respect of any description contained
herein relating to the use of any entities, plans or arrangements to give rise
to a particular United States federal income tax treatment for Seller.
CREDIT | FIRST
SUISSE | BOSTON CREDIT SUISSE FIRST BOSTON CORPORATION
21
