PLEDGE AGREEMENT
This Pledge Agreement (this "Agreement") is dated as of October 22,
1999 between MA 1994 B SHARES, L.P., a Delaware limited partnership ("MA") (the
"Pledgor") and Citibank, N.A., a national banking association, as collateral
agent (the "Agent") for Citicorp USA, Inc., a Delaware corporation (the
"Lender"). Terms capitalized and used herein which are not otherwise defined
herein shall have the meanings given them in the Credit Agreement (as defined
below). This Agreement, the Credit Agreement, the Note (as defined below), and
the Guaranty (as defined below) executed in connection therewith are called the
"Loan Documents."
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof between MIAMI HEAT LIMITED PARTNERSHIP (the "Heat") and the Lender (as
such agreement may be modified, supplemented, amended or restated from time to
time, the "Credit Agreement"), the Lender has agreed to make a One Hundred
Million Dollar ($100,000,000) line of credit (the "Line"), available to Heat
with advances thereunder evidenced by that certain Promissory Note, of even date
herewith, executed by Heat in favor of the Lender in a principal amount of up to
One Hundred Million Dollars ($100,000,000) (as such note may be modified,
supplemented, replaced, amended or restated from time to time, the "Note");
WHEREAS, MA has guaranteed the obligations of Heat under the Credit
Agreement pursuant to that certain Guaranty dated as of the date hereof made by
MA in favor of Lender (the "Guaranty");
WHEREAS, Pledgor owns, and may own in the future, certain securities
including, without limitation, certain shares of stock ("Shares") of certain
corporations ("Corporations") which are identified on Exhibit A attached hereto;
WHEREAS, the Agent has established a certain custody account in the
name of the Pledgor, as described on Exhibit A attached hereto (the "Account");
WHEREAS, the Lender has required as a condition, among others, to
extending credit to Heat under the Line, and in order to secure the prompt and
complete payment, observance and performance of all of the obligations and
liabilities of Heat and MA owing now or hereafter to the Lender under or in
connection with the Line, the Credit Agreement and the Guaranty (all such
obligations and liabilities together with the obligations of the Pledgor owing
to the Agent under this Agreement are collectively referred to herein as the
"Obligations"), that the Pledgor execute and deliver this Agreement to the
Agent.
NOW, THEREFORE, for and in consideration of the foregoing and of any
extensions of credit (including, without limitation, any loan or advance by
renewal, refinancing or extension of the agreements described hereinabove or
otherwise) heretofore, now or hereafter made to or for the benefit of Heat by
the Lender, the Agent or their affiliates and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Grant of Security Interest. The Pledgor hereby grants to the Agent,
for the benefit of itself and the Lender, as security for the prompt and
complete payment, observance and performance of the Obligations, a security
interest in all of Pledgor's right, title and interest in (i) all Securities and
other investment property, whether now owned or hereafter acquired and now or
hereafter delivered to the Agent or the Agent's nominee pursuant to the Credit
Agreement or this Agreement including, without limitation, the Shares and all
Pledgor's right to receive distributions of the Corporation's assets (such
Securities and other investment property collectively referred to herein as the
"Pledged Interests"), (ii) the Account and all investment property and
Securities contained therein and all replacements, renewals, substitutions and
proceeds thereof, (iii) all rights, privileges, authority and powers of Pledgor
as owner or holder of the Pledged Interests, including all contract rights
related thereto, (iv) any documents, instruments or certificates representing or
evidencing the Pledged Interests, and (v) all interest, dividends,
distributions, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the Pledged
Interests and any and all proceeds of any of the foregoing (all of the foregoing
being referred to collectively as the "Collateral"). Pledgor agrees to execute
and deliver to the Agent stock powers substantially in the form of Exhibit B
attached hereto (the "Powers") with respect to each Pledged Interest evidenced
by a "certificated security" and such documents of transfer as the Agent may
from time to time request to enable the Agent to transfer the Pledged Interests
into its name or the name of its nominee, or to register any of the Collateral
to the Agent or its nominee.
2. Perfection of Security Interest. Pledgor agrees (i) to deliver, or
cause to be delivered, to the Agent, or the Agent's nominee, all certificates
evidencing any of the Collateral, (ii) to execute and deliver to the Agent such
financing statements as the Agent may reasonably request from time to time with
respect to the Collateral and (iii) to take such other steps as the Agent may
from time to time reasonably request to perfect the Agent's security interest in
the Collateral under applicable law. At the request of the Agent, Pledgor shall
take all such steps as are necessary or desirable to insure that Pledged
Interests are readily marketable, including, without limitation, causing
opinions to be delivered to applicable transfer agents and other actions to
remove any legends on certificates evidencing the Collateral, if applicable.
3. Voting Rights. During the term of this Agreement, and so long as no
"Trigger Event" (defined below) shall have occurred and be continuing, the
Pledgor shall have the right to vote the Pledged Interests and exercise any
voting rights pertaining to such Pledged Interests, and to give consents,
ratifications and waivers with respect thereto, for all purposes not prohibited
by the terms of the Loan Documents. The Agent shall, at the request of Pledgor,
provide Pledgor with appropriate proxies and any other documents necessary or
appropriate to permit such Pledgor to exercise the rights set forth in the
preceding sentence. For purposes of this Agreement and the other Loan Documents,
"Trigger Event" shall mean the date as of which an Event of Default shall have
occurred and be continuing under the Credit Agreement and the Lender shall have
delivered to the Borrower and the Pledgor a notice that the Lender has
accelerated the due date of the amounts outstanding under the Facility; provided
that, a Trigger Event shall be deemed not to have occurred or be continuing if
the Agent shall have received written notice from the Lender of either the cure
or waiver of such Trigger Event. After the occurrence and during the continuance
of any Trigger Event, the Agent shall be entitled, at the Agent's option and
following written notice from the Agent to the Pledgor, to exercise all voting
powers pertaining to the Collateral and to give, exclusively, consents,
ratifications and waivers with respect thereto for all purposes.
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4. Dividends and Other Distributions. During the term of this
Agreement, and so long as no Trigger Event shall have occurred and be
continuing, the Pledgor will receive all dividends and other distributions
payable with respect to such Pledged Interests. All such dividends and other
distributions that shall be received by the Agent shall be immediately
distributed to the Pledgor unless and until a Trigger Event shall have occurred
and is continuing whereupon the Agent will retain any dividends and other
distributions paid on account of the Pledged Interests securing the Obligations.
Notwithstanding the foregoing, the Agent shall be entitled to collect and
receive any and all dividends and all cash distributions paid or payable in cash
in respect of any Collateral at any time during the continuance of a Trigger
Event or in connection with a total liquidation or dissolution of any
Corporation or termination of any Account and cash paid, payable or otherwise
distributed in redemption of, in exchange for, or as a return of the Pledgor's
capital investment in the Corporation (solely to the extent of and in respect of
the Pledged Interests), and any such amounts, if received by the Pledgor, shall
be held in trust for the benefit of the Agent segregated from other property or
funds of the Pledgor, and forthwith be delivered to the Agent as Collateral in
the same form as so received (with any necessary endorsement). Any dividends and
distributions retained by the Agent shall be applied to the Obligations.
5. Representations. The Pledgor warrants and represents as follows:
(a) Pledgor has the power and authority to execute, deliver
and perform the Guaranty and this Agreement, to incur the Obligations,
and to grant to the Agent security interests in the Collateral. Pledgor
has taken all necessary action to authorize its execution, delivery and
performance of the Guaranty and this Agreement. No consent, approval,
or authorization of, or declaration or filing with, any governmental
authority, and no consent of any other person, is required in
connection with Pledgor's execution, delivery, and performance of the
Guaranty and this Agreement except for those already duly obtained.
Each of the Guaranty and this Agreement has been duly executed and
delivered by Pledgor, and constitutes the legal, valid and binding
obligation of Pledgor, enforceable against it in accordance with its
terms. Pledgor's execution, delivery, and performance of the Guaranty
and this Agreement do not and will not conflict with, or constitute a
violation or breach of, or constitute a default under, or result in the
creation or imposition of any lien upon the Collateral of Pledgor by
reason of the terms of (i) any contract, mortgage, lien, lease,
agreement, indenture, or instrument to which Pledgor is a party or
which is binding upon it or its property, or (ii) any judgment, law,
statute, rule or governmental regulation applicable to Pledgor.
(b) Pledgor's principal place of business is as set forth on
the signature page hereof.
(c) Pledgor is (i) a duly formed and validly existing
partnership under the laws of the state of Delaware, (ii) qualified to
do business in all states where the failure of Pledgor to qualify to do
business would have a material adverse effect on Pledgor's ability to
conduct its business and own its property, and (iii) an entity that has
all requisite power and authority to conduct its business and to own
its property.
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(d) Pledgor is the sole, direct, legal and beneficial owner of
each of the Pledged Interests that are delivered by Pledgor to Agent
pursuant to this Agreement, and such Pledged Interests have been duly
authorized and issued and are fully paid and nonassessable.
(e) There are no restrictions upon the voting rights
associated with, or the transfer of, any of the Collateral except as
provided by any law applicable to the sale of securities generally.
(f) Pledgor has the right, subject to the provisions of this
Agreement, (i) to vote the Pledged Interests that are owned by it, and
(ii) to pledge and grant a security interest in all or any part of the
Collateral that is owned by it, free of any lien or other charge,
encumbrance or restriction.
(g) Pledgor has the right (subject, however, to the Securities
Act of 1933, as amended) to otherwise transfer all or any part of the
Pledged Interests owned by it, free of any lien or other charge,
encumbrance or restriction.
(h) The Powers executed by Pledgor are duly executed and give
the Agent the authority they purport to confer.
(i) The financial information for the Pledgor heretofore
provided to the Lender in connection with the Line is accurate in all
material respects.
(j) Since the date of the most recent Compliance Certificate
(as defined in the Guaranty) delivered to the Lender, no event has
occurred that could have a material adverse effect (i) on the business,
operations or condition (financial or otherwise) of the Pledgor or the
value of the Pledged Interests or (ii) on the ability of the Pledgor to
perform its obligations under the Guaranty or to facilitate Borrower's
performance under Section 2.3(c) of the Credit Agreement.
(k) There is no pending or, to the best of Pledgor's
knowledge, threatened litigation against the Pledgor which could have a
material adverse effect on the financial condition of Pledgor or could
affect the legality, validity or enforceability of any of the Guaranty
or the Pledge Agreement.
6. Subsequent Changes Affecting Collateral. Pledgor represents to the
Agent that Pledgor has made its own arrangements for keeping informed of changes
or potential changes affecting the Collateral (including, but not limited to,
rights to convert, rights to subscribe, payment of dividends, reorganization or
other exchanges, tender offers and voting rights), and Pledgor agrees that
neither the Agent nor the Lender shall have any responsibility or liability for
informing Pledgor of any such changes or potential changes or for taking any
action or omitting to take any action with respect thereto. Nothing in this
Section 6 or any other provision of this Agreement shall modify, alter or
diminish the obligation of the Lender to provide telecopied notice to the
Borrower and the Guarantor of the events described in, and as required by,
Section 2.3(c) of the Credit Agreement.
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7. No Discharge. The Pledgor shall remain bound and its liabilities
hereunder shall be unconditional, irrespective of (i) the validity or
enforceability, avoidance or subordination of any of the Obligations, (ii) the
absence of any attempt to collect the Obligations from the Heat, or all or any
part of the Obligations or other action to enforce the same or the election of
any remedy by the Agent or the Lender, (iii) the waiver, consent, extension,
forbearance or granting of any indulgence by the Agent or the Lender with
respect to any provision of any of the Loan Documents, (iv) failure by the Agent
to take any steps to perfect and maintain its security interest in, or to
preserve its rights to, any of the Collateral, (v) the election by the Lender in
any proceeding instituted under Chapter 11 of the Bankruptcy Code involving the
Pledgor of the application of Section 1111 (b)(2) of the Bankruptcy Code, (vi)
any borrowing or grant of a security interest by the Pledgor, as
debtor-in-possession, under Section 364 of the Bankruptcy Code, (vii) the
disallowance under Section 502 of the Bankruptcy Code of all or any portion of
the claims of the Lender or the Agent for repayment of any of the Obligations,
or (viii) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor or the Pledgor, all of the
foregoing being expressly waived by the Pledgor.
8. Waivers. Except as otherwise provided herein or in the Guaranty,
Pledgor hereby waives any requirement of diligence, presentment, demand of
payment, filing of claims with a court in the event of receivership or
bankruptcy of Pledgor or the Heat, protest or notice with respect to the
Obligations, and all demands whatsoever (and shall not require that the same be
made on the Heat as a condition precedent to Pledgor's liabilities hereunder),
and covenants that this Agreement will not be discharged, except as provided in
paragraph 10 hereunder.
9. Remedies of Agent. Upon the occurrence and during the continuance of
a Trigger Event, the Agent shall have, in addition to the rights given under the
Loan Documents or by law, all of the rights and remedies with respect to the
Collateral of a secured party under the Uniform Commercial Code as in effect in
the State of New York. The Pledgor acknowledges that, in the event the Borrower
and/or the Pledgor (as Guarantor) has not complied with Section 2.3(c) of the
Credit Agreement, the Agent shall be entitled to sell the Collateral as and when
described therein (so that the principal amount of all outstanding Advances is
less than or equal to the Borrowing Base).
10. Term. This Agreement shall remain in full force and effect until
all of the Obligations shall have been paid and satisfied in full and the Line
shall have been terminated (the "Termination Date"). After the Termination Date,
the Agent will return to the Pledgor as soon as administratively practicable,
free and clear from any security interest or any other right, title or interest
of the Agent, the Lender or lien, encumbrance or security interest created
hereunder or under any other Loan Document and free of any lien, encumbrance or
security interest of any person or entity created by, through or under the Agent
or the Lender all of the Collateral (including, without limitation, all stock
certificates, Powers and other documents evidencing the Collateral and/or
constituting documents of transfer) that has not theretofore been sold or
otherwise applied or released pursuant to this Agreement, together with such
other notices, documents, and/or instruments as the Pledgor may reasonably
request acknowledging and evidencing the termination of this Agreement and the
security interest created hereby.
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11. The Agent's Exercise of Rights and Remedies upon a Trigger Event.
Notwithstanding anything set forth herein to the contrary, it is hereby
expressly agreed that following the occurrence and during the continuance of a
Trigger Event, the Agent may, and upon the written direction of the Lender,
shall, exercise any of the rights and remedies with respect to the Collateral as
provided in this Agreement or any of the other Loan Documents.
12. Expenses. The Pledgor agrees to pay to the Agent all reasonable
expenses (including, without limitation, court costs and attorneys' and
paralegals' fees and expenses) of, or incident to, (i) the exercise or
enforcement of any of the rights of the Agent hereunder, and (ii) the failure by
the Pledgor to perform or observe any provision hereof in any material respect.
13. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Pledgor, the Lender, the Agent and their respective
successors and permitted assigns. The Pledgor's successors and assigns shall
include, without limitation, a receiver, trustee or debtor-in-possession of or
for the Pledgor. The Pledgor may not assign its rights or delegate its
obligations hereunder without the prior written consent of the Lender and the
Agent. At any time, the Agent may, with the consent of the Lender, and shall,
upon the request of the Lender, assign its rights and delegate its obligations
hereunder to another securities intermediary (as defined in the Uniform
Commercial Code as in effect on the date hereof in the state of New York),
provided, however, that any such assignment shall be subject to prior notice to
the Borrower and the Pledgor and, in the case of an assignment to a securities
intermediary which is not an affiliate of the Lender, as long as no Event of
Default exists, shall be subject to the prior consent of the Borrower and the
Pledgor which shall not be unreasonably withheld or delayed.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to the
choice of law doctrine of such state. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited or invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
15. Further Assurances. Pledgor agrees that it will cooperate with the
Agent and will execute and deliver, or cause to be executed and delivered, all
such stock powers, proxies, instruments and documents, and will take all such
other action, including, without limitation, the filing of financing statements,
as the Agent may reasonably request from time to time in order to carry out the
provisions and purposes hereof.
16. Transfers and Other Liens. The Pledgor agrees that it will not (i)
sell or otherwise dispose of, or grant any option with respect to, any of the
Pledged Interests without the prior written consent of the Agent, or (ii) create
or permit to exist any lien, security interest, adverse claim or other charge or
encumbrance upon or with respect to any of the Collateral, except for the
security interest granted under this Agreement.
17. Additions of Collateral. Agent may permit the Pledgor, from time to
time, to add additional investment property of the Pledgor to the Collateral
subject to this Agreement by executing an amendment to this Agreement
substantially in the form of Exhibit C attached hereto and otherwise complying
with Paragraph 2 hereof.
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18. Release. If the aggregate principal amount of all Advances (as
defined in the Credit Agreement) is less than forty-five percent (45%) of the
Fair Market Value (as defined in the Credit Agreement) of the Acceptable
Collateral at all times for twenty (20) consecutive Banking Days (as defined in
the Credit Agreement) then as soon as practicable after the Agent's receipt of a
written request from Pledgor, the Agent shall release a sufficient amount of
Collateral, based on the Fair Market Value thereof at such time, so that the
aggregate principal amount of all Advances is approximately equal to the
Borrowing Base (as defined in the Credit Agreement) at the end of the Banking
Day on which such request for a release is made.
19. Consent to Jurisdiction and Service of Process. IN ANY ACTION OR
PROCEEDING ARISING UNDER OR RELATING TO THE CREDIT AGREEMENT, THIS AGREEMENT OR
ANY OF THE OBLIGATIONS (AS DEFINED HEREIN), EACH OF THE AGENT, THE LENDER AND
THE PLEDGOR HEREBY IRREVOCABLY (A) CONSENTS AND SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN
IN NEW YORK, NEW YORK, AND (B) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY
TIME TO THE LAYING OF VENUE OF ANY SUCH PROCEEDINGS BROUGHT IN ANY SUCH COURT,
AND (C) WAIVES ANY CLAIM THAT SUCH PROCEEDINGS HAVE BEEN BROUGHT IN AN
INCONVENIENT FORUM AND (D) FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO
SUCH PROCEEDINGS, THAT SUCH OTHER COURT DOES NOT HAVE ANY JURISDICTION OVER SUCH
PARTY.
EACH OF THE PARTIES HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENT THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE AT THE
OPTION OF THE OTHER PARTY (A) BY DELIVERY IN PERSON, OR (B) BY COURIER, OR (C)
BY CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, TO IT AT SUCH PARTY'S ADDRESS
NOTED BELOW, OR (D) BY SERVICE UPON ITS REGISTERED AGENT IN DELAWARE, AS
APPLICABLE, WHICH SUCH PARTY IRREVOCABLY APPOINTS AS SUCH PERSON'S AGENT FOR THE
PURPOSE OF ACCEPTING SERVICE OF PROCESS FOR NOT ONLY IN ANY ACTION WITHIN THE
STATE OF NEW YORK BUT ALSO FOR ANY ACTION IN ANY OTHER JURISDICTION. ANY PROCESS
SERVED SHALL BE COMPLETE ON THE DATE IT IS DELIVERED. EACH OF THE PARTIES HEREBY
CONSENTS TO SERVICE OF PROCESS AS AFORESAID. EACH OF THE PARTIES ALSO WAIVES ANY
DEFECT IN SERVICE CAUSED BY ITS FAILURE TO NOTIFY THE OTHER PARTIES IN WRITING
OF ANY CHANGE OF ADDRESS.
IN ADDITION, EACH PARTY AGREES TO PROMPTLY FORWARD BY REGISTERED MAIL A
COPY OF ANY PROCESS SO SERVED UPON SAID AGENT TO THE APPLICABLE PARTY AT ITS
ADDRESS SET FORTH BELOW.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR THE RIGHT OF ANY PARTY TO BRING
ANY ACTION OR PROCEEDING AGAINST ANY OR ALL OF THE OTHER PARTIES OR ANY OR ALL
OF THE OTHER PARTIES' PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
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20. Waiver of Jury Trial. EACH OF PLEDGOR AND THE AGENT IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
AND WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT IN ANY JURISDICTION SET FORTH ABOVE. EACH PARTY AGREES
THAT IT WILL NOT ASSERT ANY CLAIM AGAINST THE OTHER PARTY OR ANY OTHER PERSON
INDEMNIFIED UNDER THIS AGREEMENT ON ANY THEORY OF LIABILITY FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
21. The Agent Appointed Attorney-in-Fact. Pledgor hereby appoints the
Agent as Pledgor's attorney-in-fact to be effective upon the occurrence and
during the continuance of a Trigger Event, with full authority in the place and
stead of Pledgor and in the name of Pledgor or otherwise, from time to time in
the Agent's discretion to take any action and to execute any instrument which
the Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
instruments made payable to Pledgor representing any distribution, interest
payment or other dividend distribution in respect of the Collateral or any part
thereof and to give full discharge for the same. This power of attorney created
under this paragraph 21, being coupled with an interest, shall be irrevocable
until the Termination Date, but shall not be deemed to authorize the Agent to
take any action which Pledgor could not be required to take hereunder.
22. Agent's Duty. (a) The Agent shall not be liable for any acts,
omissions, errors of judgment or mistakes of fact or law including, without
limitation, acts, omissions, errors or mistakes with respect to the Collateral,
except for those arising out of or in connection with the Agent's (i) gross
negligence or willful misconduct, or (ii) failure to use reasonable care with
respect to the safe custody of any certificate evidencing any of the Collateral
which is in the physical possession of the Agent. Without limiting the
generality of the foregoing, the Agent shall be under no obligation to take any
steps necessary to preserve rights in the Collateral against any other parties
but may do so at its option, and all reasonable expenses incurred in connection
therewith shall be for the sole account of the Pledgor, and shall be added to
the Obligations secured hereby.
(b) The Pledgor acknowledges and agrees that the Agent, an
affiliate of the Lender, has been authorized by the Lender to act as
the Lender's agent for purposes of entering into this Agreement and
holding the Collateral to be pledged hereunder. Except as otherwise
provided under the terms of this Agreement, neither the Pledgor nor the
Borrower shall be obligated to pay any costs or expenses of the Lender
incurred in connection with the appointment and delegation of such
duties to the Agent or the performance of such duties by the Agent.
23. Notices. Any notice required or desired to be served, given or
delivered hereunder shall be in writing, and shall be deemed to have been
validly served, given or delivered (i) when properly transmitted if sent by
telecopy or facsimile with receipt confirmed, (ii) one (1) Banking Day after
being deposited with a reputable overnight courier with all charges prepaid, or
(iii) when delivered, if hand-delivered, by messenger, all of which shall be
properly addressed to the party to be notified and sent to the address or number
set forth on the signature page of this Agreement.
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24. Indemnity. The Pledgor hereby agrees to indemnify the Agent and the
Lender and their respective directors, officers, employees, affiliates and
agents (collective, the "Indemnified Persons") against, and agrees to hold each
such Indemnified Person harmless from, any and all losses, claims, damages and
liabilities, including claims brought by any governmental or regulatory agency,
account debtor or other obligor of the Pledgor, and related reasonable expenses,
including reasonable counsel fees and expenses, incurred by such Indemnified
Person arising out of any claim, litigation, investigation or proceeding
(whether or not such Indemnified Person is a party thereto) relating to the
transaction that is the subject of this Agreement, the Credit Agreement and the
Guaranty or any interest the Agent or the Lender has in any Collateral or any
action the Agent or the Lender takes with respect to the Collateral; provided,
however, that such indemnity shall not apply to any such losses, claims,
damages, or liabilities or related expenses arising from the gross negligence or
willful misconduct of such Indemnified Person. The agreements of the Pledgor in
this Section 24 shall be in addition to any liabilities that the Pledgor may
otherwise have. All amounts due under this Section 24 shall be payable as
incurred within thirty (30) days following written demand therefor accompanied
by a detailed description of the losses, claims, damages, liabilities and
expenses claimed. Each Indemnified Person shall promptly notify the Pledgor in
writing upon receipt by such Indemnified Person of notice of any action against
or involving such Indemnified Person with respect to which indemnity may be
sought hereunder. The Pledgor shall have the right, by written notice to the
Indemnified Person, to control the defense of any such action with counsel
approved by such Indemnified Person, which approval shall not be unreasonably
withheld or delayed; provided that upon 30 days prior written notice, the
Indemnified Person who is the subject of such indemnified claim which is an
indemnified liability may elect to defend, using a law firm selected by such
Indemnified Person, any such claims, loss, action, legal or administrative
proceeding at the cost and expense of the Pledgor, subject to the reasonable
approval of the Pledgor (which approval shall not be unreasonably withheld or
delayed) if, in the reasonable judgment of such Indemnified Person there is a
conflict of interest between the Indemnified Person and the Pledgor relating to
such lawsuit, action, legal or administrative hearing and such Indemnified
Person reasonably concludes that there may be legal defense available to it
different from those available to the Pledgor. If any Indemnified Person
exercises its right to designate counsel pursuant to this section, all
reasonable costs and expenses thereof shall be paid by the Pledgor in accordance
with this Section 24; provided, however, that the Pledgor will not be required
to pay the costs, fees, and expenses of more than one separate counsel for all
Indemnified Persons in any single action or proceeding. The Pledgor shall not be
liable to any Indemnified Person for any amounts (including any settlement
amount) relating to any action settled without the Pledgor's prior written
consent.
25. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
26. Section Headings. The section headings herein are for convenience
of reference only, and shall not affect in any way the interpretation of any of
the provisions hereof.
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IN WITNESS WHEREOF, the Pledgor and the Agent have executed this
Agreement as of the day and year first above written.
MA 1994 B SHARES, L.P., a Delaware limited
partnership
By: MA 1994 B SHARES, INC., a Delaware
corporation, its general partner
By:
Name:
Title:
Notice Address:
x/x Xxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
CITIBANK, N.A., as Agent for the Lender
By:
Vice President
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Notice Address:
Citicorp, USA, Inc.
c/o Citibank, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Hofforth
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Citicorp North America, Inc.
Private Banking Division
000 X. Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
and:
Citicorp North America, Inc.
Private Banking Division
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
8000 Sears Tower
000 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-11-
EXHIBIT A TO PLEDGE AGREEMENT
Account:
-----------------------------
Corporation: Carnival Corp.
EXHIBIT B TO PLEDGE AGREEMENT
Form of Stock Power Attached
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EXHIBIT C TO PLEDGE AGREEMENT
Amendment To Pledge Agreement
-----------------------------
This Amendment to Pledge Agreement is made as of the ___ day of
__________, _____ (the "Amendment") between MA 1994 B Shares, L.P. (the
"Pledgor") and Citibank, N.A., a national banking association, as collateral
agent (the "Agent") for Citicorp USA, Inc., a Delaware corporation.
Preliminary Statements
A. Pledgor has executed and delivered to Agent that certain Pledge
Agreement dated as of October 22, 1999 (as amended, the "Pledge Agreement").
B. Pledgor wishes to provide additional "Collateral" (as defined in the
Pledge Agreement) to the Agent as provided in Section 19 of the Pledge
Agreement.
NOW, THEREFORE, in consideration of the foregoing, the Pledgor and
Agent agree to add the following ("New Collateral") to Exhibit A of the Pledge
Agreement:
[describe new Pledged Interest]
The Pledgor and Agent agree that as of the date hereof the New
Collateral shall become part of the Pledged Collateral subject to the terms of
the Pledge Agreement.
Except as specifically amended hereby, the terms and conditions of the
Pledge Agreement are in all respects ratified and confirmed and remain in full
force and effect.
IN WITNESS WHEREOF, the Pledgor and Agent have executed this Amendment.
Pledgor: MA 1994 B SHARES, L.P., a Delaware limited
partnership
By: MA 1994 B SHARES, INC., a Delaware
corporation, its general partner
By:
Name:
Its:
Agent: CITIBANK N.A.
By:
Vice President
