EXHIBIT 9
---------
EXECUTION COPY
FIRST MODIFICATION OF AMENDED AND RESTATED PLEDGE AGREEMENT
This First Modification of Amended and Restated Pledge
Agreement ("Modification") is made as of July 18, 2002 by and between MA 1994 B
Shares, 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
Miami Heat Limited Partnership pursuant to that certain Amended and Restated
Credit Agreement dated as of December 13, 2001 between Miami Heat Limited
Partnership ("MHLP") and the Bank, as amended by that certain First Modification
of Amended and Restated Credit Agreement dated as of February 28, 2002 between
MHLP and the Bank and that certain Second Modification of Amended and Restated
Credit Agreement dated as of the date hereof between MHLP and the Bank;
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. AMENDMENT TO THE PLEDGE AGREEMENT. Section 4(c) of
the Pledge Agreement is hereby amended by deleting in each instance in which
they occur, the words "thirty percent (30%)" and inserting in lieu thereof the
words "forty percent (40%)".
3. EFFECTIVENESS OF THIS MODIFICATION.The amendment set
forth above shall be effective as of July 18, 2002.
4. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. The
representations and warranties of the Pledgor contained in Section 3 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 Agreement as amended by this Modification) are true and correct in
all material respects on and as of the effective date of this Modification.
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. On
and after the effective date of this Modification, all references
to the Pledge Agreement in any Credit Document or 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 shall be governed
and construed under the laws of the State of New York, without regard to the
conflict of law 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.
2
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 day and year first above written.
PLEDGOR BANK
MA 1994 B SHARES, L.P., JPMORGAN CHASE BANK
a Delaware limited partnership
By: MA 1994 B SHARES, INC.,
a Delaware corporation,
its General Partner
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- --------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: President Title: Vice President
3
