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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
TERMS AND CONDITIONS FOR PRIVATE SAILS EXHIBIT 12
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 1,304,800 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.
CREDIT FIRST
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) or (C) the Total Exposure on such day
is equal or greater than
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
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MAFCO HOLDINGS INC./GSB PRIVATE SAILS
$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 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
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 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 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.
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
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 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
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
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 Subsidiary shall be named as a selling
Sales: 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 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
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
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 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
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
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 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
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
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 Sellers represent and warrant to Purchaser
Warranties: 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 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
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
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, 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
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
10
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
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 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
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
11
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
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;
(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.
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
12
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
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 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
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
13
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
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.
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
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
14
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
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 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
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
15
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
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
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
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
16
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
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 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
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
17
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
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
Obligations: be joint and several.
Governing Law: This term sheet shall be governed by and
construed 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
18
<PAGE>
MAFCO HOLDINGS INC./GSB PRIVATE SAILS
Understood and Agreed to, this 19th 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/ Susan Girard
----------------------------------
Name: Susan Girard
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
19
<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
20
