EXHIBIT 26
----------
EXECUTION COPY
SECOND MODIFICATION OF AMENDED AND RESTATED PLEDGE AGREEMENT
This Second Modification of Amended and Restated Pledge Agreement
("Modification") is made as of January 13, 2003 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
amended by that certain First Modification of Amended and Restated Pledge
Agreement dated as of July 18, 2002 (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, that certain Second
Modification of Amended and Restated Credit Agreement dated as of July 18, 2002
between MHLP and the Bank and that certain Third Modification of Amended and
Restated Credit Agreement dated as of the date hereof between MHLP and the Bank
(as the same may be further amended from time to time, the "Credit Agreement");
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 3(h) of the Pledge Agreement is hereby amended by inserting
immediately prior to the period at the end thereof the following:
, it being understood 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.
(b) Section 4(c) of the Pledge Agreement is hereby deleted in its entirety
and the following new Section 4(c) inserted in lieu thereof:
If on any date, the Collateral Value of the Collateral Assets other
than the CCL Shares comprises less than the sum of (i) forty percent
(40%) of the outstanding principal balance of the Tranche A Loans plus
(ii) one hundred percent (100%) of the outstanding principal balance of
the Tranche B Loans, the Pledgor will, within five (5) Domestic
Business Days after the Bank delivers written notice thereof to the
Pledgor and the Borrower, either (A) cause such amount of the Loans to
be prepaid as is necessary to reduce the outstanding balance of the
Tranche A Loans and the Tranche B Loans, respectively, to amounts such
that, after such prepayment, the Collateral Value of the Collateral
Assets other than the CCL Shares shall be equal to or greater than the
sum of the amounts set forth in clauses (i) and (ii) of this Section
4(c) or (B) pledge to the Bank and contribute to the Collateral Account
additional Collateral such that the Collateral Value of the Collateral
Assets other than the CCL Shares shall be equal to or greater than the
sum of the amounts set forth in clauses (i) and (ii) of this Section
4(c).
3. EFFECTIVENESS OF THIS MODIFICATION. The amendments set forth
above shall be effective as of January 13, 2003.
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. REAFFIRMATION. The undersigned, as Guarantor of the
obligations of the Borrower under the Credit Agreement and a signatory to an
Amended and Restated Pledge Agreement in favor of the Bank, does hereby consent
to the Third Modification of Amended and Restated Credit Agreement dated as of
January 13, 2003 (the "Modification") and agrees that its obligations under its
Amended and Restated Guaranty and the Pledge Agreement include the obligations
under the Credit Agreement and the Tranche B Note and agrees that all such
obligations under the Amended and Restated Guaranty and the Pledge Agreement
remain in full force and effect and are hereby ratified and confirmed.
7. 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.
8. CONSENT TO JURISDICTION. ALL ACTIONS OR PROCEEDINGS IN ANY WAY
ARISING OUT OF OR RELATED TO THIS MODIFICATION OR THE PLEDGE
2
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.
9. 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.
3
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have executed and delivered this Second Modification of Amended and
Restated Pledge Agreement as of the day and year 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
----------------------- -------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: President Title: Vice President
4
