EXHIBIT 17
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EXECUTION COPY
AMENDED AND RESTATED PLEDGE AGREEMENT
This AMENDED AND RESTATED PLEDGE AGREEMENT (this "Agreement") is dated
as of December 13, 2001 between MA 1997 HOLDINGS, L.P. (the "Pledgor") and
JPMORGAN CHASE BANK, successor by merger with ▇▇▇▇▇▇ Guaranty Trust Company of
New York (the "Bank").
WHEREAS, the Bank may extend and has already extended loans or other
credit facilities or financial accommodations, to or on behalf of the ▇▇▇▇▇
▇▇▇▇▇▇ 1997 Holdings Trust (the "Borrower") from time to time (collectively the
"Loans") including without limitation pursuant to the Amended and Restated
Demand Note, dated December 13, 2001 and executed by the Borrower 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, to induce the Bank to extend the Loans to the Borrower, the
Pledgor entered into a certain Pledge Agreement dated February 12, 1999 between
the Pledgor and the Bank (the "Original Pledge Agreement");
WHEREAS, to induce the Bank to accept certain changes with respect to
the collateral pledged pursuant to the Original Pledge Agreement, the Pledgor
has (i) guaranteed the payment obligations of the Borrower under the Loans
pursuant to that certain Guaranty dated as of the date hereof by the Pledgor in
favor of the Bank (as the same may be amended, modified or supplemented from
time to time, the "Guaranty") and (ii) agreed to amend and restate the Original
Pledge Agreement to secure the Pledgor's present and future payment obligations
under the Guaranty, (collectively, the "Secured Obligations");
WHEREAS, in connection with the execution of this Agreement, The
Northern Trust Company ("Northern Trust") and SunTrust Bank, Miami ("SunTrust")
(each, a "Securities Intermediary") shall enter into, respectively, the
Custodial Account Control Agreement, dated as of the date hereof, among the
Pledgor, the Bank and Northern Trust and the Securities Account Control
Agreement dated as of the date hereof, among the Pledgor, the Bank and SunTrust
(individually and/or together, the "Custodial Account Agreement"))
WHEREAS, the parties hereto desire to amend and restate the Original
Pledge Agreement as set forth herein;
NOW, THEREFORE, the Pledgor and the Bank agree as follows:
1. (a) As collateral security for the performance of the Secured
Obligations, the Pledgor hereby pledges and assigns to the Bank, and grants to
the Bank a valid first-priority security interest (subject only to prior liens
expressly granted to a Securities Intermediary pursuant to its Custodial Account
Agreement) in such assets from time to time credited to the accounts described
on Schedule I hereto (collectively, the "Collateral Account") held by a
Securities Intermediary pursuant to its Custodial Account Agreement, together
with all security entitlements in respect thereof and all proceeds and products
thereof and dividends and
distributions thereon (collectively, the "Collateral"). The Pledgor hereby
agrees to maintain in the Collateral Account, at all times, Collateral having an
Aggregate Lending Value (as defined below) equal to or greater than the
aggregate U.S. Dollar amount of the Secured Obligations (the "Required
Collateral Amount"). For purposes of this Agreement, the "Aggregate Lending
Value" of the Collateral shall be equal to the sum of (i) 70% of the Market
Value of Collateral consisting of assets other than shares of Carnival Corp.
("CCL Shares") and (ii) 50% of the Market Value of Collateral consisting of CCL
Shares; provided, however, that at no time after June 30, 2002 shall more than
50% of the Required Collateral Amount consist of CCL Shares. The Bank shall have
full control of the Collateral, including as more specifically set forth in
Section 1(b) below, and any transfer affecting the Collateral is subject to its
approval. The Pledgor may substitute Collateral only upon the prior written
consent of the Bank. If at any time the Required Collateral Amount shall not be
maintained, the Pledgor agrees to furnish to the Securities Intermediary for
deposit in the Collateral Account within two business days upon the Bank's
demand sufficient Collateral acceptable to the Bank so the Required Collateral
Amount is attained. As used in this Agreement, "Market Value" with respect to
any item of Collateral means, as of any date of determination, (a) in the case
of cash or cash equivalents held in U.S. Dollars, the amount or face amount
thereof, as the case may be, (b) in the case of CCL Shares, for so long as CCL
Shares are traded on the New York Stock Exchange (the "NYSE"), the closing price
per share of such securities on the NYSE on the business day immediately prior
to such date and (c) in the case of any other readily marketable investment
security (including the CCL Shares if they are not traded on the NYSE), the fair
market value thereof as determined by the Bank in good faith but otherwise in
its sole and absolute discretion; PROVIDED that in doing so the Bank may take
into account stock exchange or the National Association of Securities Dealers
Automated Quotation System quotations or, for any security not quoted on a stock
exchange or the National Association of Securities Dealers Automated Quotation
System, (i) the current bid prices for the security, (ii) if bid prices are not
available for any security, the current bid prices for comparable securities,
(iii) the value of the security on the bid side of the market by appraisal or
(iv) any combination of the above; and PROVIDED FURTHER that in determining the
fair market value of a security on a particular date, where such security is not
quoted on a stock exchange or the National Association of Securities Dealers
Automated Quotation System, the most recent quotations, bids or similar data
with respect to it (which the Bank may, but is not required to, rely upon
exclusively) may be as at a date up to five business days prior to such date.
(b) The Pledgor acknowledges and agrees that the Bank shall
have "control" (as defined in Section 8-106 of the Uniform Commercial Code in
effect in the State of New York (the "UCC")) over the Collateral held in or
credited to the Collateral Account and the Collateral from time to time
delivered to the Bank (or a Securities Intermediary), and the Pledgor hereby
consents to such control. Upon notice from the Bank that a Guaranty Event of
Default (as hereinafter defined) has occurred and is continuing, each Securities
Intermediary shall follow the "entitlement orders" as defined in Section
8-102(a)(8) of the UCC issued by the Bank without further consent of the
Pledgor. Each of the accounts described on Schedule I hereto constitutes a
"securities account", as defined in Section 8-501 of the UCC. Each Securities
Intermediary is, in such capacity, a "securities intermediary" as defined in
Section 8-102(a)(14) of the UCC in respect of each of the accounts described on
Schedule I hereto below such Security Intermediary's name and all other
Collateral held in or credited to such accounts and the "securities
intermediary's jurisdiction" as defined in Section 8-110(e) of the UCC, for each
Securities Intermediary is New York. To the fullest extent permitted by Article
8 of the UCC,
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the Collateral held in or credited to the Collateral Account will be treated as
a "financial asset" within the meaning of Section 8-102(a)(9) of the UCC. Except
as otherwise provided in this Section 1(b), the Pledgor agrees not to allow any
person or entity other than the Bank to have control of the Collateral and will
not enter into a control agreement with respect to the Collateral with any third
party or any other agreement relating to the Collateral.
(c) As used in this Agreement, "Guaranty Event of Default"
means the Pledgor's failure to pay in full immediately on the Guaranty Due Date
(as defined in the Guaranty) all amounts owing under the Guaranty. Subject to
the provisions of Section 1(a) with respect to maintaining the Required
Collateral Amount and so long as no Guaranty Event of Default shall have
occurred and be continuing, or shall result therefrom: (i) each Securities
Intermediary, with the prior written consent of the Bank (which consent shall be
granted provided that no Guaranty Event of Default shall have occurred and be
continuing or shall result therefrom), shall permit the Pledgor to withdraw
principal from the Collateral Account, (ii) each Securities Intermediary shall
remit dividends, warrants, profits, interest and other distributions on the
Collateral (to the extent the same are received by such Securities Intermediary)
to the Pledgor and the Pledgor shall have the right to receive dividends,
warrants, profits, interest and other distributions on the Collateral (whether
or not remitted by such Securities Intermediary); and (iii) the Pledgor shall
have, directly or through one or more investment manager, the right to vote all
of the securities comprising the Collateral and to give consents, ratifications
and waivers with respect thereto. Upon the written request of the Pledgor with
respect to assets replaced by substitute Collateral in accordance with Section
1(a) and provided that no Guaranty Event of Default shall have occurred and then
be continuing or shall result therefrom, the Bank shall release its Liens on
such assets as identified by the Pledgor and held in or credited to the
Collateral Account but only to the extent that, after giving effect to such
release, the Aggregate Lending Value of the Collateral exceeds the then Required
Collateral Amount.
2. The Pledgor represents and warrants that: (i) each of this
Agreement, and the Guaranty and the Custodial Account Agreement has been duly
authorized, executed and delivered by the Pledgor and constitutes a valid and
legally binding obligation of the Pledgor enforceable in accordance with its
terms, (ii) this Agreement creates a valid first priority lien on and first
priority perfected security interest in the Collateral securing the payment of
the Secured Obligations, subject only to the prior liens granted to each
Securities Intermediary pursuant to its Custodial Account Agreement as set forth
in Section 1(a) above, (iii) it has, and will have upon delivery of any
additional Collateral to the Bank or crediting of any additional Collateral to
the Collateral Account, title to all of the Collateral, free and clear of all
claims, mortgages, pledges, liens, encumbrances and security interests of every
nature whatsoever ("Liens"), other than Liens created hereunder and under the
Custodial Account Agreement, and no consent or approval of any person, entity or
governmental or regulatory authority, or of any securities exchange, was or is
necessary to create or perfect this pledge, (iv) the execution and delivery of
each of this Agreement, the Guaranty and the Custodial Account Agreement by the
Pledgor and the performance by the Pledgor of its obligations hereunder and
thereunder do not violate or conflict with any law applicable to it, any
provision of its constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets and (v)
no Liens other than in favor of the Bank (and the Securities Intermediary as set
forth above) exist upon any of the Collateral.
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3. The Pledgor will preserve and protect the Bank's security
interest in the Collateral, will defend the Bank's right, title, lien and
security interest in and to the Collateral against the adverse claims and
demands of all persons whomsoever, and will do all such acts and things and
execute and deliver all such documents and instruments, including without
limitation further pledges, assignments, financing statements and continuation
statements, as the Bank in its sole discretion may reasonably deem necessary or
advisable from time to time in order to preserve, protect and perfect such
security interest or to enable the Bank to exercise or enforce its rights under
this Agreement with respect to any Collateral. The Pledgor hereby authorizes the
Bank to sign, and file financing and continuation statements and Securities and
Exchange Commission Forms 144 (or similar or replacement forms), without the
signature of the Pledgor after default on the Secured Obligations.
4. The Pledgor will not permit any Liens other than the Lien
created hereby in favor of the Bank and the Lien in favor of a Securities
Intermediary pursuant to its Custodial Account Agreement to exist upon any of
the Collateral.
5. The Pledgor will not take any action that could in any way
limit or adversely affect the ability of the Bank to realize upon its rights in
the Collateral. Upon the occurrence and during the continuance of a Guaranty
Event of Default, the Bank shall upon notice to the Pledgor be entitled to
exercise all voting powers with respect to the Collateral. The Pledgor agrees to
notify the Bank immediately of any development or occurrence which to its
knowledge would render any of the Collateral not readily saleable under (i)
Rules 144 or 145 under the Securities Act of 1933 (as amended, the "Securities
Act"), or (ii) any other provisions of the Securities Act.
6. Subject to the provisions of this Agreement and those
contained in the Custodial Account Agreement, at any time and from time to time
the Bank may cause all or any of the Collateral to be transferred to or
registered in its name or the name of its nominee or nominees or to have
security entitlements in respect thereof credited to it or its nominee's
securities account with any securities intermediary.
7. Upon the occurrence and during the continuance of a Guaranty
Event of Default, the Bank, without obligation to resort to other security,
shall have the right at any time and from time to time to sell, resell, assign
and deliver, in its discretion, all or any of the Collateral, in one or more
parcels at the same or different times, and all right, title and interest, claim
and demand therein and right of redemption thereof, on any securities exchange
on which the Collateral or any of it may be listed, or at public or private
sale, for cash, upon credit or for future delivery, and in connection therewith
the Bank may grant options, the Pledgor hereby waiving and releasing any and all
equity or right of redemption to the fullest extent permitted by law. If any of
the Collateral is sold by the Bank upon credit or for future delivery, the Bank
shall not be liable for the failure of the purchaser to purchase or pay for the
same and, in the event of any such failure, the Bank may resell such Collateral.
In no event shall the Pledgor be credited with any part of the proceeds of sale
of any Collateral until cash payment thereof has actually been received by the
Bank or a Securities Intermediary for the benefit of the Bank. In addition,
should any portion of the Collateral consist of a time deposit or deposits with
a financial institution (including the Bank), the Bank may terminate such
deposit or deposits prior to the maturity thereof and any penalties payable in
connection therewith shall be for the sole account of the Pledgor.
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8. The Pledgor acknowledges and agrees that the securities
forming a part of the Collateral may decline speedily in value and are of a type
customarily sold on a recognized market, and, accordingly, no demand,
advertisement or notice, all of which are hereby expressly waived, shall be
required in connection with any sale or other disposition of any such
securities, or any other part of the Collateral which may decline speedily in
value or which is of a type customarily sold on a recognized market, except any
notice that is required under applicable law and cannot be waived. With respect
to any other type of Collateral, the Bank shall give the Pledgor at least five
business days' prior notice of the time and place of any public sale and of the
time after which any private sale or other disposition is to be made, which
notice the Pledgor agrees is reasonable, all other demands, advertisements and
notices being hereby waived. The Bank shall not be obligated to make any sale of
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale may have been given. The Bank may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In the case of all sales of Collateral, public or private, the
Pledgor shall pay all costs and expenses of every kind for sale or delivery,
including brokers' and attorneys' fees and all liabilities and advances made or
incurred by the Bank in connection with each sale or delivery, and after
deducting such costs and expenses from the proceeds of sale, the Bank shall
apply any residue, first, to the payment of the costs and expenses, including
legal fees, incurred by the Bank in connection with the administration and
enforcement of the Secured Obligations and this Agreement and any amounts due to
the Bank in respect of the Secured Obligations other than principal or interest,
second, to the payment of interest owed with regard to the Secured Obligations,
and third, to the payment of principal owed with regard to the Secured
Obligations. The balance, if any, remaining after payment in full of all such
amounts shall be paid to or on the order of the Pledgor, subject to any duty of
the Bank imposed by law to the holder of any subordinate security interest in
the Collateral known to the Bank.
9. The Pledgor recognizes that the Bank may be unable to effect a
public sale of all or a part of the Collateral by reason of certain prohibitions
contained in the Securities Act, as amended, as now or hereafter in effect, or
in applicable Blue Sky or other state securities laws, as now or hereafter in
effect, but may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Collateral for their own account, for investment and not with a
view to the distribution or resale thereof. The Pledgor agrees that private
sales so made may be at prices and other terms less favorable to the seller than
if such Collateral were sold at public sales, and that the Bank has no
obligation to delay sale of any such Collateral for the period of time necessary
to permit the issuer of such Collateral, even if such issuer would agree, to
register such Collateral for public sale under such applicable securities laws.
The Pledgor agrees that private sales made under the foregoing circumstances
shall be deemed to have been made in a commercially reasonable manner.
10. The Bank shall have the right, for and in the name, place and
stead of the Pledgor, to execute endorsements, assignments or other instruments
of conveyance or transfer with respect to all or any of the Collateral.
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11. The Bank shall have no duty as to the collection or protection
of the Collateral or any income thereon or as to the preservation of any rights
pertaining thereto, beyond the safe custody of any thereof actually in its
possession. With respect to any maturities, calls, conversions, exchanges,
redemptions, offers, tenders or similar matters relating to any of the
Collateral (herein called "events") occurring prior to a default by the Pledgor
in respect of any of the Secured Obligations, the Bank's duty shall be fully
satisfied if (i) the Bank exercises reasonable care to ascertain the occurrence,
and to give reasonable notice to the Pledgor, of any events applicable to any
such securities included in the Collateral which are registered and held in the
name of the Bank or its nominee or any security entitlements included in the
Collateral as to which the Bank is the entitlement holder, (ii) the Bank gives
the Pledgor reasonable notice of the occurrence of any events, of which the Bank
has received actual knowledge, as to any such securities which are in bearer
form or are not registered and held in the name of the Bank or its nominee (the
Pledgor agreeing to give the Bank reasonable notice of the occurrence of any
events applicable to any securities in the possession of the Bank of which the
Pledgor has received knowledge), and (iii) subject to the exercise of its sole
discretion (a) the Bank endeavors to take such action with respect to any of the
events as the Pledgor may reasonably and specifically request in writing in
sufficient time for such action to be evaluated and taken, or (b) if the Bank
determines that the action requested might materially adversely affect the value
of the Collateral as collateral, the collection of the Secured Obligations, or
otherwise materially prejudice the interests of the Bank, the Bank gives
reasonable notice to the Pledgor that any such requested action will not be
taken, and if the Bank makes such determination or if the Pledgor fails to make
such timely request, the Bank takes such other action as it deems reasonably
advisable in the circumstances. Except as hereinabove specifically set forth,
and at any time following a default by the Pledgor in respect of any of the
Secured Obligations and during the continuance thereof, the Bank shall have no
further obligation to ascertain the occurrence of, or to notify the Pledgor with
respect to, any events and shall not be deemed to assume any such further
obligation as a result of the establishment by the Bank of any internal
procedures with respect to any securities in its possession or any security
entitlements as to which it is the entitlement holder.
12. The Pledgor hereby irrevocably appoints the Bank as the
P1edgor's attorney-in-fact for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which either
may deem necessary or advisable to accomplish the purposes hereof. Without
limiting the generality of the foregoing, the Bank shall have the right and
power to receive, endorse and collect all checks and other orders for the
payment of money made payable to the Pledgor representing any interest or
dividend or other distribution payable in respect of the Collateral or any part
thereof and to give full discharge for the same. This power of attorney shall be
coupled with an interest and shall survive the death or disability of the
Pledgor and shall take effect after the occurrence and during the continuance of
a Guaranty Event of Default.
13. The remedies provided herein in favor of the Bank shall not be
deemed exclusive, but shall be cumulative, and shall be in addition to all other
remedies in favor of the Bank existing at law or in equity. No delay on the part
of the Bank in exercising any of its options, powers or rights, or partial or
single exercise thereof, shall constitute a waiver thereof. The pledge of the
Collateral hereby shall not in any way preclude or restrict any recourse by the
Bank
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against the Borrower or any other person or entity liable with regard to the
Secured Obligations or any other collateral therefor.
14. Promptly after the payment in full of the Secured Obligations,
the Pledgor shall be entitled to the return of all of the Collateral and of all
other property and cash which have not been used or applied toward the payment
of such principal, interest and other amounts free and clear of all Liens in
favor of the Bank or any encumbrances imposed by the Bank; provided, however,
that if at any time any payment of any amount by the Borrower is rescinded or
must be otherwise restored or returned, upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Pledgor's obligations hereunder
with respect to such payment shall be reinstated as though such payment had been
due but not made at such time. Except as aforesaid, the assignment by the Bank
to the Pledgor of such Collateral and other property shall be without
representation or warranty of any nature whatsoever and wholly without recourse.
15. Any waiver, permit, consent or approval of any kind or
character on the part of the Bank of any breach or default under this Agreement
or any such waiver of any provision or condition of this Agreement must be in
writing and shall be effective only to the extent specifically set forth in such
writing.
16. This Agreement may not be assigned by the Pledgor without the
prior written consent of the Bank, and any purported assignment without such
consent shall be void. THIS AGREEMENT 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, CANNOT BE CHANGED ORALLY AND SHALL BIND AND
INURE TO THE BENEFIT OF THE PLEDGOR AND THE BANK AND THEIR PERMITTED SUCCESSORS
AND ASSIGNS AND ALL SUBSEQUENT HOLDERS OF THE SECURED OBLIGATIONS.
17. Any communication, demand or notice to be given under this
Agreement shall be (i) delivered in person, (ii) sent via a courier service
guaranteeing overnight delivery, (iii) sent via electronic facsimile or (iv)
mailed by registered or certified mail (postage prepaid, return receipt
requested) to any party to this Agreement at the address specified below, or to
any such party at such other address as such party may theretofore have
designated in writing and given in like manner to the other party hereto. Any
notice delivered to a recipient in person as provided in this paragraph shall be
deemed to have been duly given when received by the recipient. Any notice sent
via electronic facsimile as provided in this paragraph shall be deemed to have
been duly given upon acknowledgment of receipt at the electronic facsimile
number specified pursuant to this paragraph for the applicable party. Any notice
sent by registered or certified mail or by a guaranteed overnight delivery
service as provided in this paragraph shall be deemed to have been duly given
upon receipt of written acknowledgment of delivery to the address specified
pursuant to this paragraph for the applicable party.
18. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute but one and the same instrument.
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19. The Pledgor agrees to pay the Bank on demand all costs and
expenses, including reasonable legal fees, incurred by the Bank in connection
with the enforcement of this Agreement, all of which costs and expenses shall
form part of the Secured Obligations as provided. above. The Pledgor shall
reimburse the Bank on demand for any transfer taxes, documentary taxes,
assessments or charges that are imposed at any time on or in connection with
this Agreement and shall indemnify the Bank against liability for any such tax
(including any interest and penalties).
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Pledgor and the Bank have caused this Agreement
to be duly executed as of the day and year first above written.
MA 1997 HOLDINGS, L.P.
By: MA 1997 HOLDINGS, INC.,
its sole General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Address: ▇/▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
New York, N.Y. 10019-6064
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Electronic Facsimile No.: 212-757-3990
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Electronic Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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SCHEDULE I
TO PLEDGE AGREEMENT
NORTHERN TRUST ACCOUNTS:
Account numbers 26-11364
26-11367
SUNTRUST ACCOUNTS:
Account number 55-01-212-556-0212