EXHIBIT 25
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EXECUTION COPY
FIRST MODIFICATION OF AMENDED AND RESTATED PLEDGE AGREEMENT
This First Modification of Amended and Restated Pledge Agreement
("Modification") is made as of January 27, 2003 by and between MA 1997 Holdings,
L.P. (the "Pledgor") and JPMorgan Chase Bank (the "Bank").
WITNESSETH
WHEREAS, the Pledgor and the Bank have previously entered into that
certain Amended and Restated Pledge Agreement dated as of December 13, 2001 (as
the same may be further amended from time to time, the "Pledge Agreement"),
pursuant to which the Pledgor has pledged and granted to the Bank a security
interest in certain assets as collateral security for the payment obligations of
the Xxxxx Xxxxxx 1997 Holdings Trust (the "Trust") pursuant to certain credit
facilities or other financial accommodations extended by the Bank to the Trust,
including that certain Amended and Restated Demand Note dated December 13, 2001
and executed by the Trust in favor of the Bank in the aggregate principal amount
of $28,000,000 (as the same may be amended, modified or supplemented from time
to time, the "Note");
WHEREAS, the Pledgor and the Bank have agreed to modify certain terms
of the Pledge Agreement as set forth herein;
NOW THEREFORE, for and in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Pledgor and the Bank do hereby agree as follows:
1. TERMS. Terms initially capitalized and used but not defined
herein shall have the meanings given them in the Pledge Agreement.
2. AMENDMENTS TO THE PLEDGE AGREEMENT.
(a) Section 1(a) of the Pledge Agreement is hereby amended by
deleting the third sentence of such Section and inserting in lieu thereof the
following:
For purposes of this Agreement, the "Aggregate Lending Value" of the
Collateral shall be equal to the sum of (i) 50% of the Market Value of
Collateral consisting of shares of common stock of Carnival Corp ("CCL
Shares"); (ii) 97% of the Market Value of Collateral consisting of cash
or cash equivalents held in Dollars ("Cash"); (iii) 70% of the Market
Value of Collateral (other than CCL Shares or Cash) consisting of
publicly-traded equity securities; and (iv) a percentage to be mutually
agreed of the Market Value of any other form of Collateral; PROVIDED
that the Collateral Account shall at all times contain Collateral other
than CCL Shares with an Aggregate Lending Value that equals or exceeds
35% of the Required Collateral Amount.
(b) Section 2 of the Pledge Agreement is hereby amended by
deleting the word "and" immediately prior to clause (v) thereof and inserting
the following immediately prior to the period at the end of such Section 2:
and (vi) except with respect to the CCL Shares marked with a legend
relating to compliance with applicable securities laws, including Rule 144 of
the General Rules and Regulations under the Securities Act of 1933 (as amended,
the "Securities Act"), and as set forth herein and in the Custodial Account
Agreement, there are no restrictions on the pledge of the Collateral by the
Pledgor to the Bank nor on the sale of the Collateral by the Bank (whether
pursuant to any shareholder, lock-up or other similar agreement or xxxxxxx
xxxxxxx rules of the issuer), it being understood that that all transfers of the
common stock of Carnival Corporation are subject to the provisions of the
Amended and Restated Articles of Incorporation of Carnival Corporation,
including Articles 4 and 5 thereof, which impose certain restrictions on
transfers of the stock of Carnival Corporation.
(c) Section 4 of the Pledge Agreement is hereby amended by
redesignating the existing Section 4 as Section 4(a) and inserting the following
as a new Section 4(b):
(b) The Pledgor will not permit any Liens, other than any Liens created
under the relevant partnership agreement or other governing instrument
thereof, to exist upon any of its equity interests in Xxxxxxx Xxxxx
Global Alpha Fund, L.P. and GS Capital Partners III, L.P.
3. EFFECTIVENESS OF THIS MODIFICATION. This Modification shall be
effective as of the date first written above (the "Execution Date") upon its
execution by each of the parties hereto; PROVIDED that the amendments set forth
in Section 2 of this Modification shall be effective as of July 1, 2002. On or
prior to the Execution Date, the Pledgor shall deliver to the Bank the
following:
(a) Certified copies of all partnership action taken by the
Pledgor to authorize the execution, delivery and performance of this
Modification;
(b) A certificate of a Responsible Officer of the general
partner of the Pledgor to the effect that the representations and warranties of
the Pledgor contained in the Pledge Agreement are true and correct in all
material respects on and as of the Execution Date; and
(c) An opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
LLP, special New York counsel to the Pledgor, in substantially the form as
attached hereto as Exhibit A.
4. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. The Pledgor
represents and warrants to the Bank that the representations and warranties of
the Pledgor contained in Section 2 of the Pledge Agreement (with any references
therein to "this Agreement", "hereof", "herein," "hereunder" or words of similar
import being deemed to be references to the Pledge
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Agreement as amended by this Modification) are true and correct in all material
respects on and as of the Execution Date.
5. EFFECT ON PLEDGE AGREEMENT. Except as specifically amended
hereby, the terms and provisions of the Pledge Agreement are in all other
respects ratified and confirmed and remain in full force and effect. All
references to the Pledge Agreement in any other document executed or
communication made in connection herewith or therewith shall mean and be a
reference to the Pledge Agreement as amended or otherwise modified by this
Modification.
6. GOVERNING LAW. THIS MODIFICATION AND THE RIGHTS AND
OBLIGATIONS OF THE BANK AND THE PLEDGOR HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAWS RULES THEREOF.
7. CONSENT TO JURISDICTION. ALL ACTIONS OR PROCEEDINGS IN ANY WAY
ARISING OUT OF OR RELATED TO THIS MODIFICATION OR THE PLEDGE AGREEMENT MAY BE
LITIGATED IN COURTS HAVING SITUS IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY
AND EACH PARTY HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY COURT
LOCATED WITHIN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, WAIVES PERSONAL
SERVICE OF PROCESS UPON IT, AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY REGISTERED MAIL DIRECTED TO SUCH PARTY AT THE ADDRESS STATED ON THE
SIGNATURE PAGE OF THE PLEDGE AGREEMENT AND SERVICE SO MADE WILL BE DEEMED TO BE
COMPLETED UPON ACTUAL RECEIPT.
8. WAIVER OF JURY TRIAL. THE PLEDGOR AND THE BANK EACH WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS (i) UNDER THIS MODIFICATION, THE PLEDGE AGREEMENT OR ANY RELATED
AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (ii) ARISING FROM
ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY. EACH PARTY AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST THE OTHER
PARTY ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have executed and delivered this First Modification of Amended and
Restated Pledge Agreement as of the date first above written.
PLEDGOR BANK
MA 1997 HOLDINGS, L.P., JPMORGAN CHASE BANK
a Delaware limited partnership
By: MA 1997 HOLDINGS, INC.,
a Delaware corporation,
its General Partner
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: President Title: Vice President
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EXHIBIT A
TO FIRST MODIFICATION
FORM OF OPINION OF XXXX XXXXX, XXXXXXX, XXXXXXX & XXXXXXXX LLP
