EXHIBIT 4
PLEDGE AND SECURITY AGREEMENT
(MGN AMERICA, INC.)
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of
February 11, 2003, made by MGN AMERICA, INC., a Nevada corporation ("Pledgor"),
in favor of BANK LEUMI LE-ISRAEL B.M. ("Lender").
W I T N E S S E T H:
WHEREAS, Lender has agreed to extend credit up to an aggregate amount
of US$30,000,000 (the "Credit") to GAZIT GLOBE (1982) LTD., a company
incorporated under the laws of Israel ("Gazit"), upon the terms and subject to
the conditions set forth in that certain (i) commitment letter dated October 28,
2002, between Lender and Gazit (as amended, supplemented or otherwise modified
from time to time, the "Commitment Letter"), (ii) General Conditions for Opening
an Account and Receiving Credits in Foreign Currency and in Israeli Currency
dated November 25, 1994, between Lender and Gazit (as amended, supplemented or
otherwise modified from time to time, the "General Terms"), (iii) Letter of
Undertaking (re: compliance with margin regulations) dated February 11, 2003,
from Gazit in favor of Lender (as amended, supplemented or otherwise modified
from time to time, the "Letter of Undertaking"), and (iv) Deed of Pledge (Pledge
and assignment of rights by way of charge) dated February 11, 2003, between
Gazit and Lender (as amended, supplemented or otherwise modified from time to
time, the "Deed of Pledge," and together with the Commitment Letter, the General
Terms and the Letter of Undertaking, and any other documents or agreements
entered into by Gazit in favor of Lender in connection with the Credit, the
"Credit Documents"); and
WHEREAS, Gazit intends to loan or contribute the proceeds of the Credit
to Pledgor, its subsidiary, in order that Pledgor may purchase of up to
4,284,820 shares of the common stock, par value $.01 per share, of Equity One,
Inc.(collectively, the "EOI Shares"); and
WHEREAS, pursuant to an Assignment Agreement dated February 11, 2003,
between MGN (USA), Inc. and Pledgor, MGN (USA), Inc. has assigned to Pledgor (i)
its rights to purchase the EOI Shares under the Equity One, Inc. Common Stock
Purchase Agreement (as hereinafter defined), and (ii) its registration rights
under the Registration Rights Agreement (as hereinafter defined) with respect to
the EOI Shares; and
WHEREAS, it is a condition precedent to the obligation of Lender to
grant the Credit that, among other things, Pledgor, (i) guarantee the payment
and performance of the Credit and all other obligations of Gazit under the
Credit Documents pursuant to the Guarantee (as hereinafter defined), and (ii)
execute and deliver this Agreement to Lender to secure the payment and
performance of Pledgor's obligations under the Guarantee;
NOW, THEREFORE, in consideration of the premises and to induce Lender
to grant the Credit under the Credit Documents, Pledgor hereby agrees as
follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms
defined in the Guarantee and used herein shall have the meanings given
to them in the Guarantee. All terms not defined herein or in the
Guarantee shall have the meanings set forth in the UCC (as hereinafter
defined), except where the context otherwise requires, provided that,
if a term is defined in Article 9 of the UCC differently than in
another Article of the UCC, then such term shall have the meaning
specified in Article 9 of the UCC.
(b) The following additional terms, as used
herein, shall have the following respective meanings:
"Agreement and Plan of Merger": means that certain
Agreement and Plan of Merger dated October 28, 2002, between
IRT and EOI, as amended, supplemented and modified from time
to time.
"Cash Collateral Account Agreement": means that
certain Cash Collateral Account Agreement dated as of the date
hereof, among Lender, Pledgor and Bank Leumi USA, as amended,
supplemented or modified from time to time.
"Collateral Account": shall have the meaning
specified in Section 4 hereof.
"EOI": means Equity One, Inc., a Maryland
corporation.
"Equity One, Inc. Common Stock Purchase Agreement":
means that certain Equity One, Inc. Common Stock Purchase
Agreement dated as of October 28, 2002, between EOI and each
of the purchasers party thereto (including, without
limitation, MGN (USA), Inc.), as amended, supplemented or
modified from time to time.
"Equity One, Inc. Voting Agreement": means that
certain Equity One, Inc. Voting Agreement dated October 28,
2002, among IRT, EOI and certain stockholders party thereto
(including, without limitation, MGN (USA), Inc.), as amended,
supplemented or modified from time to time.
"Event of Default": means the occurrence and
continuance of any of the following; (i) the default by
Pledgor or Gazit in the observance or performance of any its
agreements, undertakings or obligations, now or hereafter
existing, (A) under and in accordance with this Agreement, the
Guarantee, the Cash Collateral Account Agreement, or any
Credit Document, or (B) in connection with any other loan or
other extension of credit now or hereafter made available by
Lender to Pledgor or Gazit, as the case may be, (ii) any
representation or warranty given by Pledgor or Gazit (A) in
this Agreement, the Guarantee, the Cash Collateral Account
Agreement, or in any Credit Document, or (B) in connection
with any other loan or other extension of credit now or
hereafter made available by Lender to Pledgor or Gazit, as the
case may be, proves to have been incorrect in any material
respect on or as of the date made or deemed made, or (iii) any
event that entitles Lender in accordance with any Credit
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Document, or any other agreement, undertaking, instrument or
document now or hereafter entered into by Pledgor or Gazit, to
require, prior to the maturity date thereof, immediate
repayment of all or any outstanding amount of the Credit or
any other loan or other extension of credit now or hereafter
made available by Lender to Pledgor or Gazit, including
without limitation, any event deemed to be an "event of
default" under any Credit Document or any such other
agreement, undertaking, instrument or document.
"Guarantee": means that certain Guarantee dated as of
the date hereof from Pledgor in favor of Lender, pursuant to
which Pledgor has unconditionally guaranteed the prompt
payment and performance of the Credit and all other
obligations, liabilities and indebtedness of Gazit, now
existing or hereafter incurred, under or in connection with
the Credit Documents or any other loan, extension of credit or
accommodation now or hereafter made or granted by Lender, as
the Guarantee may be amended, supplemented or otherwise
modified from time to time.
"IRT": means IRT Property Company, a Georgia
corporation.
"Issuer": means EOI.
"Material Adverse Effect": means (X) a material
adverse effect on (a) the business, operations, property,
condition (financial or otherwise) or prospects of Pledgor or
Gazit, (b) the validity or enforceability of this Agreement,
the Guarantee, the Cash Collateral Account Agreement, or any
of the Credit Documents in any manner that prevents the
practical realization by Lender of the benefits intended by
this Agreement, the Guarantee, the Cash Collateral Account
Agreement, and/or the Credit Documents, or (c) the rights or
remedies of Lender hereunder or under the Guarantee, the Cash
Collateral Account Agreement, or any of the Credit Documents
in any manner that prevents the practical realization of the
benefits purported to be provided by such rights and remedies
with respect to Lender's ability to realize upon the principal
benefits or security intended to be provided by this
Agreement, the Guarantee, the Cash Collateral Account
Agreement, and/or the Credit Documents, (Y) any impairment to
the validity, perfection or priority of the security interest
of Lender in the Pledged Collateral in any manner whatsoever,
and/or (Z) an Event of Default.
"Person": means an individual, partnership, limited
liability company, corporation, business trust, joint stock
company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
"Pledged Shares": means all EOI Shares, purchased at
any time and from time to time by Pledgor from the Issuer
pursuant to the Equity One, Inc. Common Stock Purchase
Agreement, up to a maximum aggregate number of 4,284,820
shares of such stock, and all proceeds thereof.
"Registration Rights Agreement": means that certain
Registration Rights
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Agreement dated as of October 28, 2002, among EOI and the
purchasers party thereto, including, without limitation, MGN
(USA), Inc., as may be amended, supplemented or modified from
time to time.
"Requirement of Law" means as to any Person, the
certificate of incorporation, certificate of formation,
limited liability company agreement, and by-laws or other
organizational or governing documents of such Person, and any
law, treaty, rule, regulation, decree or determination of an
arbitrator or a court or other governmental authority, in each
case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is
subject.
"Secured Obligations": means all obligations,
liabilities and indebtedness of Pledgor and/or Gazit now or
hereafter owing to Lender under or in connection with the
Credit or any other loan, extension of credit or accommodation
now or hereafter made or granted by Lender (each such other
loan, extension of credit or accommodation, an "Other
Credit"), including, without limitation, all obligations,
liabilities and indebtedness of Pledgor and/or Gazit under
this Agreement, the Guarantee, the Cash Collateral Account
Agreement, and/or the Credit Documents, as the case may be,
including, without limitation, (i) all unpaid principal of,
and accrued interest (including, without limitation, any
interest which accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy,
insolvency or reorganization of Pledgor or Gazit, whether or
not allowed or allowable as a claim in any such proceeding)
on, any loan or other credit granted under or in connection
with the Credit Documents or any Other Credit, (ii) all
expenses, costs of collection and any other amounts payable to
Lender by Pledgor or Gazit under this Agreement, the
Guarantee, the Cash Collateral Account Agreement, and/or any
Credit Document, or any Other Credit, as the case may be
(including, without limitation, all fees and disbursements of
counsel to Lender that are required to be paid by Pledgor or
Gazit to Lender pursuant to this Agreement, the Guarantee, the
Cash Collateral Account Agreement, or any Credit Document, or
any Other Credit, as the case may be), and (iii) any renewals
or extensions of the Credit or Credit Documents or any Other
Credit.
"Securities Act": shall have the meaning specified in
subsection 12(a) hereof.
"UCC": shall have the meaning specified in subsection
12(a) hereof.
(c) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein
shall be equally applicable to both the singular and plural forms of
such terms.
2. Pledge; Grant of Security Interest. As collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by
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acceleration or otherwise) of the Secured Obligations, Pledgor hereby assigns,
pledges and hypothecates to the Lender, and grants to Lender a security interest
in (all being collectively referred to as the "Pledged Collateral"), all of its
right, title and interest in and to:
(a) the Pledged Shares and the certificates
representing the Pledged Shares, and all stock dividends, cash
dividends, payments, securities and property from time to time
received, receivable or otherwise distributed in respect of, or in
exchange for, any or all of the Pledged Shares;
(b) all contract and other rights related to the
foregoing, including without limitation, all registration rights under
the Registration Rights Agreement; provided, however, the foregoing
described rights shall cover only one (1) "Demand Registration" (as
such term is defined in Section 2.1 of the Registration Rights
Agreement) (collectively, the "Pledged Shares Rights");
(c) the Collateral Account, and all monies held
therein or credited thereto; and
(d) all proceeds of any of the foregoing.
3. Delivery of Pledged Shares. All certificates or
instruments representing or evidencing the Pledged Shares shall be delivered to
and held by or on behalf of Lender pursuant hereto and shall be in suitable form
for transfer by delivery, or shall be accompanied by duly executed undated
instruments of transfer or assignment in blank, substantially in the form of
Exhibit B hereto, all in form and substance satisfactory to Lender. Lender shall
have the right, at any time in its discretion and without notice to Pledgor
following the occurrence and during the continuance of an Event of Default, to
transfer to or to register in the name of Lender any or all of the Pledged
Shares. In addition, Lender shall have the right to exchange certificates or
instruments representing or evidencing Pledged Shares for certificates or
instruments of smaller or larger denominations.
4. Collateral Account. Pledgor has established, and
shall hereafter maintain, with Bank Leumi USA in New York, New York, non
interest-bearing cash collateral deposit account number 00-000000-00 and
interest bearing cash collateral deposit account number 00-000000-00
(collectively, the "Collateral Account"). All cash dividends and other cash
proceeds attributable to the Pledged Shares shall be deposited into the
Collateral Account promptly upon receipt of same by Pledgor. The Collateral
Account shall be subject to the terms of this Agreement and shall be under the
"control" (as defined in section 9-104 of the UCC) of Lender pursuant to the
terms of the Cash Collateral Account Agreement. The Collateral Account, and all
monies deposited therein or credited thereto, shall constitute security for the
Secured Obligations.
5. Representations and Warranties. Pledgor hereby
represents and warrants that the following statements are true, correct and
complete in all material respects:
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(a) Each of the representations and warranties
made by Pledgor in the Guarantee and the Cash Collateral Account
Agreement is true and correct on and as of the date hereof as though
made on and as of the date hereof.
(b) On the date of each "Initial Closing" or
"Subsequent Closing" (as such terms are defined in the Equity One,
Inc. Common Stock Purchase Agreement, hereinafter a "Purchase Closing
Date"), (i) Pledgor will be the record, legal and beneficial owner of
that number of EOI Shares so purchased in accordance with the Equity
One, Inc. Common Stock Purchase Agreement and promptly notified to
Lender in writing, (ii) such EOI Shares, to Pledgor's knowledge, will
have been duly authorized and validly issued and will be fully paid
and nonassessable, and (iii) there will be no outstanding warrants,
options, subscriptions or other contractual arrangements for the
purchase or sale of such EOI Shares or any outstanding securities
convertible into such EOI Shares, and there will be no preemptive
rights of Issuer or any other Person with respect to such EOI Shares,
other than in connection with the Agreement and Plan of Merger.
(c) Pledgor is not and will not become a party
to or otherwise bound by any agreement, other than this Agreement, the
Equity One, Inc. Common Stock Purchase Agreement, the Registration
Rights Agreement and the Equity One, Inc. Voting Agreement, which
restricts in any manner the rights of Lender or any other present or
future holder of any of the Pledged Shares with respect thereto.
(d) Upon each purchase by Pledgor of EOI Shares
in accordance with the Equity One, Inc. Common Stock Purchase
Agreement, and the making of the Loan by Lender in connection
therewith, this Agreement will create in favor of Lender a valid
security interest in the EOI Shares, and such EOI Shares shall
constitute Pledged Shares securing the payment and performance of the
Secured Obligations. Upon delivery to Lender of the stock
certificate(s) evidencing such Pledged Shares indorsed to Lender or in
blank by an effective endorsement, Lender shall have a duly perfected
security interest in such Pledged Shares, free of any adverse claim.
(e) This Agreement is effective to create in
favor of Lender a valid security interest in the Collateral Account
securing the payment and performance of the Secured Obligations. Upon
execution and delivery of the Cash Collateral Account Agreement by the
parties thereto, Lender will have a first priority duly perfected
security interest in the Collateral Account and such security interest
shall remain perfected so long as Lender retains "control" (as defined
in Section 9-104 of the UCC) of the Collateral Account.
(f) Upon filing a financing statement in
recordable form with the Office of the Secretary of State of Nevada
naming Pledgor as debtor and Lender as secured party, describing the
Pledged Shares Rights, and (ii) each purchase by Pledgor of EOI Shares
in accordance with the Equity One, Inc. Common Stock Purchase
Agreement, Lender will have a duly perfected security interest in all
right, title and interest of Pledgor in the Pledged Shares Rights with
respect to such EOI Shares.
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(g) Subject to the restrictions contained in the
Agreement and Plan of Merger, the Equity One, Inc. Voting Agreement,
the Equity One, Inc. Common Stock Purchase Agreement and the
Registration Rights Agreement, no consent, authorization, approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other Person is required for (i)
the pledge by Pledgor of, or the grant by Pledgor of a security
interest in, the Pledged Collateral pursuant to this Agreement, (ii)
the execution, delivery or performance of this Agreement by Pledgor,
or (iii) the exercise by Lender of any rights (including without
limitation, voting rights) or remedies provided for in this Agreement
in respect of the Pledged Collateral (except for the filing of the
financing statement as described in Section 5(f) above, or as has
already been obtained or taken, or as may be required in connection
with the disposition of the Pledged Shares by laws affecting the
offering and sale of securities generally).
(h) The execution, delivery and performance of
this Agreement and the transactions contemplated hereby, including,
without limitation, the purchase and delivery of the EOI Shares to
Lender on each Purchase Closing Date, (A) do not and will not conflict
with or result in any breach or contravention of any applicable law,
regulation, judicial order or decree to which Pledgor is subject,
including, without limitation, Regulations T, U or X of the Board of
Governors of the Federal Reserve System, and (B) do not and will not
violate, conflict with, constitute a default or event of default
under, or result in any rights to accelerate or modify any obligations
under any agreement, instrument, lease, mortgage or indenture to which
Pledgor is a party or subject, or to which any of its assets is
subject, other than as set forth in the Equity One, Inc. Voting
Agreement and the Registration Rights Agreement.
(i) Pledgor has the corporate power and
authority to enter into this Agreement and to grant to Lender a
security interest in the Pledged Collateral hereunder. This Agreement
has been duly executed and delivered by Pledgor and is the legal,
valid and binding obligation of Pledgor enforceable against it in
accordance with the terms hereof, except as enforceability is limited
by bankruptcy, insolvency, reorganization, moratorium, or other laws
relating to or affecting generally the enforcement of creditors'
rights, and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the discretion
of the court before which any case or proceeding therefore may be
brought.
(j) Pledgor (i) is the sole owner of, and has
rights in, and good and marketable title to, the Collateral Account,
free and clear of any and all liens, charges, encumbrances, security
interests or claims thereon of any Person (other than Lender), and
(ii) on each Purchase Closing Date, will be the sole owner of, and
will have rights in, and good and marketable title to, the EOI Shares
so purchased and the related Pledged Shares Rights, free and clear of
any and all liens, charges, encumbrances, security interests or claims
thereon of any Person (other than Lender and as set forth in the
Equity One, Inc. Voting Agreement). No financing statement or other
public notice with respect to all or any part of the Pledged
Collateral is on file or of record in any public office, except such
as have been filed in favor of Lender pursuant to this Agreement.
There are no liens, security interests, charges or other encumbrances
of any kind on, in or against the Pledged
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Collateral, except those in favor of Lender, other than in connection
with the Equity One, Inc. Voting Agreement.
(k) The name of Pledgor set forth on the first
page of this Agreement is Pledgor's correct and complete legal name.
Pledgor's chief executive office and principal place of business since
its inception has been located at Pledgor's address(es) specified in
Section 18 of this Agreement.
(l) All information heretofore, herein or
hereafter supplied to Lender by or on behalf of Pledgor with respect
to the Pledged Collateral is and will be accurate and complete in all
material respects.
(m) There are no agreements, understandings or
other contractual arrangements of any kind (written or oral) between
Pledgor and any other Person (including any affiliate of Pledgor),
regarding the exercise of the registration rights with respect to the
Pledged Shares, other than as expressly set forth in this Agreement
and the Registration Rights Agreement.
6. Covenants Relating to the Pledged Collateral. Pledgor
covenants and agrees with Lender that, from and after the date of this Agreement
until the Secured Obligations are indefeasibly paid in full and this Agreement
is terminated and the security interests created hereby are released:
(a) On each Purchase Closing Date, Pledgor will
deliver, or cause to be delivered, to Lender to hold as Pledged
Collateral pursuant to this Agreement, one or more share certificates,
duly issued and registered in the name of Pledgor, evidencing the EOI
Shares purchased by Pledgor from EOI on such Purchase Closing Date,
together with an undated stock power covering each such share
certificate, duly executed by Pledgor. Pledgor will, from time to time,
at Pledgor's expense, and upon Lender's request, promptly execute
and/or deliver all further instruments and documents and take all
further action that may be necessary or desirable, or that Lender may
reasonably request, in order to perfect and protect any security
interest granted or purported to be granted hereby, to enable Lender to
exercise and enforce the rights and remedies of Lender hereunder with
respect to any Pledged Collateral or to carry out the provisions and
purposes hereof. Without limiting the generality of the foregoing,
Pledgor will at its sole expense: (i) upon Lender's request,
authenticate, in recordable form, and deliver to Lender any financing
or continuation statements, or amendments thereto, and such other
instruments, assurances, documents or notices and take such further
actions, as may be necessary or desirable, or as Lender may reasonably
request, in order to vest in and assure to Lender its rights hereunder
and in the Pledged Collateral, and otherwise to perfect and preserve
the security interests and full benefits granted or purported to be
granted hereby under the laws of any applicable jurisdiction; and (ii)
upon Lender's request, appear in and defend any action or proceeding
that may affect Pledgor's title to or the security interest of Lender
in the Pledged Collateral.
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(b) Pledgor will, promptly upon request, provide
to Lender all information and evidence it may reasonably request
concerning the Pledged Collateral to enable Lender to enforce the
provisions of this Agreement.
(c) Pledgor will, immediately upon receipt of
same as registered owner of the Pledged Shares, deliver to Lender
copies of all notices, letters and other written communications and
information received from time to time from Issuer.
(d) Promptly upon its purchase or acquisition of
any additional non-registered shares of stock of the Issuer, Pledgor
will make a good-faith effort to give Lender written notice of each
such purchase or acquisition and the details thereof (including,
without limitation, whether or not Pledgor was granted or otherwise
received registration rights in respect of such additional shares).
(e) Pledgor will comply with all Requirements of
Law applicable to it and the Pledged Collateral or any portion thereof,
except to the extent that the failure to comply would not reasonably be
expected to have a Material Adverse Effect.
(f) Pledgor will pay promptly when due any
taxes, assessments and governmental charges or levies imposed upon the
Pledged Collateral or in respect of its income or profits therefrom, as
well as all claims of any kind, unless any of the foregoing are have
been effectively stayed within 10 days of the occurrence or imposition
thereof, or are being contested in good faith by Pledgor and as to
which adequate reserves have been set aside on its books.
(g) Pledgor will advise Lender promptly in
writing, in reasonable detail, of (A) any lien, charge, claim or other
encumbrance made or asserted against Pledgor or any of the Pledged
Collateral, (B) any material change in the composition of the Pledged
Collateral, (C) the occurrence of any event or condition which to its
knowledge is likely to have a Material Adverse Effect, and (D) any
bankruptcy or litigation case or proceeding relating to Pledgor or any
of the Pledged Collateral.
(h) Concurrently with the execution and delivery
of this Agreement, Pledgor shall execute and deliver to Lender, the
Cash Collateral Account Agreement.
(i) Pledgor will not amend or modify, or waive
compliance with, any term, condition or provision of the Equity One,
Inc. Voting Agreement, Equity One, Inc. Common Stock Purchase
Agreement, the Registration Rights Agreement or its Articles of
Incorporation without the prior written consent of Lender, which
consent shall not be unreasonably withheld.
(j) Pledgor will not create, incur assume or
suffer to exist any lien, security interest, encumbrance or charge of
any kind upon the Pledged Collateral, except liens, security interests,
encumbrances or charges in favor of Lender or as set forth in the
Equity One, Inc. Voting Agreement.
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(k) Pledgor will not sell, transfer or otherwise
dispose of any Pledged Collateral, or attempt, offer or contract to do
so, except as expressly permitted by this Agreement.
(l) Pledgor will not, without giving Lender at
least forty-five (45) days prior written notice thereof, change its
name, identity or organizational structure to such an extent that any
financing statement filed by Lender in connection with this Agreement
would become seriously misleading.
(m) Pledgor will indemnify Lender, its
directors, officers and employees and each legal entity, if any, who
controls Lender (the "Indemnified Parties"), and hold each Indemnified
Party harmless from and against, any and all claims, damages, losses,
liabilities, costs and expenses (including, without limitation, all
legal fees and expenses of internal or external counsel with whom any
Indemnified Party may consult and all expenses of litigation or
preparation therefor), which any Indemnified Party may incur or which
may be asserted against any Indemnified Party as a result of the
execution, delivery or enforcement of, or performance under, this
Agreement, provided that the foregoing indemnity agreement shall not
apply to claims, damages, losses, liabilities and expenses solely
attributable to an Indemnified Party's gross negligence or willful
misconduct. The indemnity agreement contained in this subsection shall
survive the termination of this Agreement and the repayment of the
Secured Obligations. Pledgor may participate at its expense in the
defense of any such claim.
(n) Pledgor will give Lender not less than
thirty (30) days prior written notice of its intention to exercise its
right to one (1) "Demand Registration" pursuant to Section 2.1 of the
Registration Rights Agreement. Except as expressly set forth in the
preceding sentence, Pledgor will not exercise any of Pledgor's
registration rights (including without limitation the other right to
"Demand Registration" s) under the Registration Rights Agreement,
without the prior written consent of Lender; it being understood and
agreed that such other right to a "Demand Registration" and all other
rights under the Registration Rights Agreement constitute Pledged
Collateral subject to Lender's security interest pursuant to this
Agreement.
(o) Pledgor will not enter into, or suffer to
exist, any agreement, understanding or other contractual arrangement of
any kind (written or oral) between Pledgor and any other Person
(including any affiliate of Pledgor), regarding the exercise of the
Pledged Shares Rights with respect to the Pledged Shares, other than as
expressly set forth in this Agreement and the Registration Rights
Agreement.
7. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default shall have
occurred and is continuing and Lender shall not have delivered to
Pledgor notice of its election to exercise the rights set forth in
subsection (b) below, Pledgor shall be entitled, subject to the Equity
One, Inc. Voting Agreement, to exercise any and all voting and other
consensual rights pertaining to the Pledged Shares or any part thereof
for any purpose not
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inconsistent with the terms of this Agreement or the Guarantee;
provided, however, that Pledgor shall not exercise or refrain from
exercising any such right if, in Lender's reasonable judgment, such
action or inaction would have a Material Adverse Effect or a material
adverse effect on the value of the Pledged Collateral or any part
thereof; and provided further, that Pledgor shall not exercise any such
right to amend or modify [Article VII of Issuer's Articles of Amendment
and Restatement] without the prior written consent of Lender.
Notwithstanding the foregoing to the contrary, Pledgor may exercise
such voting rights in any way that may dilute its percentage interest
in the Issuer evidenced by the Pledged Shares from the percentage
interest in effect immediately prior to such action or inaction with
the prior written consent of Lender (which consent shall not be
unreasonably withheld so long as (i) no Default or Event of Default has
occurred and is continuing, and (ii) Lender is reasonably satisfied
that the Issuer has or will receive fair consideration for the issuance
of any new shares or other action causing such dilution).
(b) Upon the occurrence and during the
continuance of an Event of Default, all rights of Pledgor to exercise
the voting and other consensual rights which Pledgor would otherwise be
entitled to exercise pursuant to subsection 7(a) shall cease to be
effective upon notice by Lender to Pledgor of Lender's intent to
exercise its rights hereunder, and upon delivery of such notice, all
such rights shall become vested in Lender, who shall thereupon have the
sole right to exercise such voting and other consensual rights so long
as such voting and other consensual rights are not exercised in a
manner inconsistent with Section 1.2 of the Equity One, Inc. Voting
Agreement. In order to effect such transfer of rights, Lender shall
have the right, upon such notice, to date and present to Issuer the
irrevocable proxy executed by Pledgor substantially in the form
attached hereto as Exhibit A. It is understood and agreed by the
parties hereto that upon termination of the Equity One, Inc. Voting
Agreement in accordance with its terms, (i) the foregoing irrevocable
proxy and voting and other consensual rights granted to Lender pursuant
to this subsection shall no longer be subject to, or limited in any way
by, the Equity One, Inc. Voting Agreement, and/or (ii) Pledgor shall,
upon the request of Lender, promptly execute and deliver to Lender such
additional and/or replacement irrevocable proxies as may be required by
Lender in order to effect under applicable law - the voting and other
consensual rights intended to be transferred by Pledgor to Lender
pursuant to this subsection."
(c) Any and all (i) cash dividends and other
cash distributions received, receivable or otherwise paid or payable in
respect of any of the Pledged Shares (including without limitation any
sums paid upon or in respect of the Pledged Shares pursuant to the
recapitalization or reclassification of the capital of the Issuer or
pursuant to the reorganization, liquidation or dissolution of the
Issuer) shall be received in trust for the benefit of Lender as
additional Pledged Collateral, shall be segregated from other funds of
Pledgor, and shall be deposited forthwith into the Collateral Account
in the same form as so received (with any necessary endorsement), and
(ii) any and all stock dividends, securities, instruments and other
rights, property or proceeds (other than cash or checks) received,
receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Shares (including without limitation any distribution upon
or in respect of
- 11 -
the Pledged Shares pursuant to the recapitalization or reclassification
of the capital of the Issuer or pursuant to the reorganization,
liquidation or dissolution of the Issuer), shall be received in trust
for the benefit of Lender, and shall be delivered forthwith to Lender
in the same form as so received (with any necessary endorsement) to be
held as Pledged Collateral under this Agreement.
8. Transfers and Other Liens; Additional Shares.
(a) Except as otherwise permitted by this
Agreement, Pledgor agrees that it will not (i) sell, assign (by
operation of law or otherwise), transfer, exchange or otherwise dispose
of, or grant any option with respect to, any of the Pledged Collateral,
(ii) create, incur or permit to exist any Lien or option in favor of,
or any claim of any Person with respect to, any of the Pledged
Collateral, or any interest therein, except for the security interests
created by this Agreement, or (iii) enter into any other contractual
obligations (other than the Equity One, Inc. Voting Agreement, the
Equity One, Inc. Common Stock Purchase Agreement and the Registration
Rights Agreement) which could reasonably be expected to restrict or
inhibit Lender's rights or ability to sell or otherwise dispose of the
Pledged Collateral or any part thereof after the occurrence of an Event
of Default.
(b) Pledgor agrees that, except as set forth in
the Agreement and Plan of Merger and the Equity One, Inc. Voting
Agreement, it will (i) not cause, approve or vote to permit Issuer to
issue any stock or other securities (including any warrants, options,
subscriptions or other contractual arrangements for the purchase of
stock or securities convertible into stock) in substitution for the
Pledged Shares, without the prior written consent of Lender, and (ii)
deliver hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all writings evidencing any additional
Pledged Collateral. Pledgor hereby authorizes Lender to modify this
Agreement by unilaterally amending the description of the Pledged
Collateral to include such shares of stock or other securities.
9. Lender Appointed Attorney-in-Fact. Pledgor hereby
irrevocably appoints Lender as Pledgor's attorney-in-fact, with full power of
substitution and with full authority in the place and stead of Pledgor and in
the name of Pledgor, Lender or otherwise, from time to time in Lender's sole
discretion to take any action (including completion and presentation of any
proxy) and to execute and deliver any instrument, assignment, mortgage, notice,
pledge, document or agreement that Lender may deem necessary or advisable to
accomplish the purposes of the creation, attachment, perfection, maintenance or
continuance of Lender's security interest in the Pledged Collateral under any
applicable law, in each instance, so long as such power of attorney is not
exercised in a manner inconsistent with Section 1.2 of the Equity One, Inc.
Voting Agreement, including, without limitation, but subject to the foregoing
qualification, to (i) receive, endorse and collect all instruments made payable
to Pledgor representing any dividend or other distribution in respect of the
Pledged Collateral or any part thereof, (ii) exercise the voting and other
consensual rights pertaining to the Pledged Collateral in accordance with
subsection 7(b), so long as such voting and other consensual rights are not
exercised in a manner inconsistent with Section 1.2 of the Equity One, Inc.
Voting Agreement; (iii) exercise on and
- 12 -
after the occurrence of any Event of Default any demand, piggyback or other
registration rights provided in the Registration Rights Agreement constituting
Pledged Shares Rights, and (iv) sell, transfer, pledge, make any agreement with
respect to, or otherwise deal with, any of the Pledged Collateral as fully and
completely as though Lender was the absolute owner thereof for all purposes, and
to do, at Lender's option and Pledgor's expense, at any time or from time to
time, all acts and things that Lender deems necessary to protect, preserve or
realize upon the Pledged Collateral in accordance with the provisions hereof.
Pledgor hereby ratifies and approves all acts of Lender made or taken pursuant
to this Section 9. Except as specifically set forth in Section 11 hereof,
neither Lender nor any person designated by Lender shall be liable for any acts
or omissions or for any error of judgment or mistake of fact or law. This power
of attorney, being coupled with an interest, shall be irrevocable until all
Secured Obligations (other than indemnity obligations) shall have been paid in
full and the Credit Documents shall have been terminated. It is understood and
agreed by the parties hereto that upon termination of the Equity One, Inc.
Voting Agreement in accordance with its terms, (i) the foregoing irrevocable
power of attorney granted to Lender pursuant to this section shall no longer be
subject to, or limited in any way by, the Equity One, Inc. Voting Agreement,
and/or (ii) Pledgor shall, upon the request of Lender, promptly execute and
deliver to Lender such additional and/or replacement irrevocable powers of
attorney as may be required by Lender in order to effect under applicable law
the power of attorney intended to be granted by Pledgor to Lender pursuant to
this section.
10. Lender May Perform. If Pledgor fails to perform any
agreement contained herein, then Lender may itself perform, or cause performance
of, such agreement, and the expenses of Lender incurred in connection therewith
shall be payable by Pledgor under Section 15 hereof, and shall be a part of the
Secured Obligations.
11. Limitation on Duty of Lender with Respect to the
Pledged Collateral. The powers conferred on Lender hereunder are solely to
protect its interest in the Pledged Collateral and shall not impose any duty on
it to exercise any such powers. Except for the safe custody of any Pledged
Collateral in its possession and the accounting for monies actually received by
it hereunder and other collection and enforcement rights of a secured party
under the UCC requiring the exercise in a commercially reasonable manner, Lender
shall have no other duty with respect to any Pledged Collateral. Lender shall be
deemed to have exercised reasonable care in the custody and preservation of the
Pledged Collateral in its possession if the Pledged Collateral is accorded
treatment that is substantially equivalent to that which Lender accords its own
property, it being expressly agreed that Lender shall have no responsibility
(other than to exercise certain collection and enforcement rights in a
commercially reasonable manner as specifically required by the UCC) for (i)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Collateral, whether
or not Lender has or is deemed to have knowledge of such matters, or (ii) taking
any necessary steps to preserve rights against any parties with respect to any
Pledged Collateral, but Lender may do so and all expenses incurred in connection
therewith shall be payable by and for the sole account of Pledgor.
12. Remedies upon Event of Default. If any Event of
Default shall have occurred and is continuing:
- 13 -
(a) Lender may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided
for herein or otherwise available to it, all the rights and remedies of
a secured party under the Uniform Commercial Code (the "UCC") in effect
in the State of New York at that time, whether or not the UCC applies
to the affected Pledged Collateral, and Lender may also, without demand
of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to
below), to or upon Pledgor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived),
forthwith sell, assign, give option or options to purchase, or
otherwise dispose of and deliver the Pledged Collateral or any part
thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale, at any exchange, broker's board or
office, or at any of Lender's offices or elsewhere, for cash, on
credit, or for future delivery, without assumption of any credit risk,
at such price or prices and upon such other terms and conditions as
Lender deems commercially reasonable. Pledgor acknowledges and agrees
that such a private sale may result in prices and other terms that may
be less favorable to the seller than if such sale were a public sale.
Pledgor agrees that, to the extent notice of sale shall be required by
law, at least fourteen (14) days' notice to Pledgor of the time and
place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification, and to the extent
that notice of sale shall not be required by law, Lender agrees to use
its commercially reasonable best efforts to give to Pledgor at least
fourteen (14) days' prior written notice of the time and place of any
public or private sale of the Pledged Collateral. At any sale of the
Pledged Collateral, if permitted by law, Lender may bid (which bid may
be, in whole or in part, in the form of cancellation of indebtedness)
for the purchase of the Pledged Collateral or any portion thereof.
Lender shall not be obligated to make any sale of Pledged Collateral
regardless of notice of sale having been given. Lender may adjourn any
public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. Lender shall
be under no obligation to delay a sale of any of the Pledged Collateral
for the period of time necessary to permit Issuer to register such
securities for public sale under the Securities Act of 1933, as from
time to time amended (the "Securities Act"), or under applicable state
securities laws, even if Issuer would agree to do so. To the extent
permitted by law, Pledgor hereby specifically waives (i) all rights of
redemption, stay or appraisal which Pledgor has or may have under any
law now existing or hereafter enacted, and (ii) all claims, damages and
demands it may acquire against Lender arising out of the exercise by
Lender of any rights hereunder or at law, except for bad faith, willful
misconduct and gross negligence. To the extent that applicable law
imposes duties on Lender to exercise remedies in a commercially
reasonable manner, Pledgor acknowledges and agrees that it is not
commercially unreasonable for Lender (i) to fail to exercise collection
remedies against Issuer, or (ii) to disclaim disposition warranties on
sale of any Pledged Collateral.
(b) Any cash held by Lender as Pledged
Collateral and all cash proceeds received by Lender in respect of any
sale of, collection from, or other realization upon all or any part of
the Pledged Collateral may, in the discretion of Lender, be held by
- 14 -
Lender as collateral for, and/or then or at any time thereafter applied
(after payment of any amounts payable to Lender pursuant to Section
15), in whole or in part, by Lender against all or any part of the
Secured Obligations in the manner provided in Section 14 hereof. Any
surplus of such cash or cash proceeds held by Lender and remaining
after payment in full of all the Secured Obligations shall be paid over
to Pledgor or to whomsoever may be lawfully entitled to receive such
surplus or as a court of competent jurisdiction may direct; provided,
that in the event that all of the conditions to the termination of
this Agreement pursuant to Section 16 shall not have been fulfilled,
such balance shall be held during the continuance of an Event of
Default and applied from time to time as provided in this subsection
12(b) until all such conditions shall have been fulfilled.
(c) Pledgor recognizes that Lender may be unable
to effect a public sale of all or part of the Pledged Collateral and
may be compelled to resort to one or more private sales to a restricted
group of purchasers who will be obligated to agree, among other things,
to acquire such Pledged Collateral for their own account, for
investment and not with a view to the distribution or resale thereof.
Pledgor acknowledges that any such private sales may be at prices and
on terms less favorable to the seller than if sold at public sales
through exercise of any registration rights, and agrees that Lender has
no obligation to delay sale of any such Pledged Collateral for the
period of time necessary to permit Issuer to register such Pledged
Collateral for public sale under the Securities Act. Pledgor agrees to
use its best efforts to do or cause to be done all such other acts as
may be necessary to make such sale or sales of all or any portion of
the Pledged Collateral pursuant to this Section valid and binding and
in compliance with any and all other applicable Requirements of Law.
Pledgor further agrees that a breach of any of the covenants contained
in this Section will cause irreparable injury to Lender, and that
Lender has no adequate remedy at law in respect of such breach and, as
a consequence, that each and every covenant contained in this Section
12 shall be specifically enforceable against Pledgor, and Pledgor
hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants, except for a defense that
no Event of Default had occurred and was continuing at the time that
Lender exercised any of its remedies pursuant to this Agreement.
13. Remedies Cumulative.
(a) No failure on the part of Lender to
exercise, and no delay in exercising and no course of dealing with
respect to, any power, privilege or right under the Credit Documents,
the Guarantee, the Cash Collateral Account Agreement or this Agreement
shall operate as a waiver thereof, nor shall any single or partial
exercise by Lender of any power, privilege or right under any of the
Credit Documents, the Guarantee, the Cash Collateral Account Agreement
or this Agreement preclude any other or further exercise thereof or the
exercise of any other such power, privilege or right. Lender shall not
be required to make any demand upon or pursue or exhaust any of its
rights or remedies against Pledgor or others with respect to the
payment of the Secured Obligations, and shall not be required to
marshal the Pledged Collateral or to resort to the Pledged Collateral
in any particular order. The powers, privileges and rights in this
- 15 -
Agreement, the Guarantee, the Cash Collateral Account Agreement and the
Credit Documents are cumulative and are not exclusive of any other
remedies provided by law.
(b) Lender shall have, in addition to any other
rights and remedies contained in this Agreement, the Guarantee, the
Cash Collateral Account Agreement and the Credit Documents, and any
other agreements, guaranties, notes, instruments and documents
heretofore now or at any time or times hereafter executed by Pledgor or
any other Person and delivered to Lender, all of the rights and
remedies of a secured party under the UCC in force in any state in
which the Pledged Collateral is located at any time, all of which
rights and remedies shall be cumulative and nonexclusive to the extent
permitted by law.
14. Application of Proceeds. Upon the occurrence and
during the continuance of an Event of Default, the proceeds of any sale of, or
other realization upon, all or any part of the Pledged Collateral shall be
applied: first to all reasonable fees, costs and expenses incurred by Lender
with respect to this Agreement, the Guarantee, the Cash Collateral Account
Agreement, the Credit Documents and the Pledged Collateral, including, without
limitation, those described in Section 15 herein; second, to all fees, costs and
expenses incurred by any Lender in connection with any action to enforce the
Guarantee, the Cash Collateral Account Agreement, any Credit Document or to
collect any payments due from Pledgor; third, to accrued and unpaid interest on
the Secured Obligations (including any interest which but for the provisions of
the Bankruptcy Code (Title 11 U.S.C.), would have accrued on such amounts);
fourth, to the principal amounts of the Secured Obligations outstanding; fifth,
to any other Secured Obligations Any proceeds remaining after application of the
foregoing will be paid to Pledgor.
15. Expenses. Pledgor shall promptly pay to Lender all
reasonable costs and expenses of Lender (both before and after the execution
hereof) in connection with protecting or perfecting Lender's security interest
in the Pledged Collateral, in connection with any realization or collection of
the Pledged Collateral or Lender's enforcement or defense of any of its rights
or remedies under this Agreement or at law, or in connection with any matters
contemplated by or arising out of this Agreement, the Guarantee, the Cash
Collateral Account Agreement or any of the Credit Documents.
16. Termination of Security Interests; Release of Pledged
Collateral. Upon payment and performance in full of all Secured Obligations
(other than indemnity obligations) and termination of the Guarantee, the Cash
Collateral Account Agreement and the Credit Documents, the security interests
granted herein shall terminate and all rights to the Pledged Collateral shall
revert to Pledgor. Upon the sale of any Pledged Collateral, to the extent
permitted by this Agreement, the Guarantee, the Cash Collateral Account
Agreement, or the Credit Documents, Lender's security interests in such Pledged
Collateral shall terminate and the rights in such Pledged Collateral shall
revert to Pledgor or such purchaser. Upon such termination of the security
interests or release of any Pledged Collateral, Lender will, at the expense of
Pledgor, execute and/or file and deliver such documents as Pledgor shall
reasonably request to evidence the termination of the security interests or the
release of such Pledged Collateral which has not yet theretofore been sold or
otherwise applied or released. Such release shall be without recourse or
warranty to Lender.
- 16 -
17. Amendments, Waivers and Consents. No amendment,
modification. termination or waiver of any provision of this Agreement, or
consent to any departure by Pledgor therefrom, shall in any event be effective
without the written concurrence of Lender and Pledgor.
18. Notices. Unless otherwise expressly provided herein,
all notices, approvals, requests, demands, consents and other communications
hereunder, including any notice of default or notice of sale, to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand or
by overnight courier, when delivered, or (b) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of Pledgor and Lender, or to such other address as may be
hereafter notified by the respective parties hereto:
If to Pledgor:
MGN America, Inc.
0000 X.X. Xxxxx Xxxxxxx Xxxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxx, Esq.
White & Case LLP
000 X. Xxxxxxxx Xxxx.
Xxxxx, XX 00000
Facsimile: (000) 000-0000
If to Lender:
Bank Leumi le-Israel B.M.
Construction and Real Estate Division
00 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 0-000-0000
- 17 -
with a copy to:
Xxxx Xxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
19. Continuing Security Interest; Successors and Assigns.
This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) remain in full force and effect until termination of
the security interests in the Pledged Collateral pursuant to Section 16 hereof,
(ii) be binding upon Pledgor, its successors and assigns, and (iii) inure,
together with the rights and remedies of Lender hereunder and its successors and
assigns. Without limiting the generality of the foregoing clause (iii), Lender
may assign or otherwise transfer all or any portion of the Credit to any other
Person as permitted in the Credit Documents, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to
Lender herein or otherwise. Pledgor may not assign or transfer any of its
interests or obligations hereunder without the prior consent of Lender.
20. Irrevocable Authorization and Instruction to Issuer.
Pledgor hereby authorizes and instructs Issuer to comply with any instruction
received by it from Lender in writing that (a) states that an Event of Default
has occurred and is continuing, and (b) is otherwise in accordance with the
terms of this Agreement, without any other or further instructions from Pledgor,
and Pledgor agrees that Issuer shall be fully protected in so complying.
21. Waiver.
(a) In addition to any other waivers herein,
Pledgor waives to the greatest extent it may lawfully do so, and agrees
that it shall not at any time insist upon, plead or in any manner
whatever claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension, marshalling of assets, redemption or
similar law, or exemption, whether now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance by
Pledgor of its obligations under, or the enforcement by Lender of, this
Agreement. Pledgor hereby waives diligence, presentment and demand
(whether for nonpayment or protest or of acceptance, maturity,
extension of time, change in nature or form of the Secured Obligations,
acceptance of further security, release of further security,
composition or agreement arrived at as to the amount of, or the terms
of the Secured Obligations, notice of adverse change in Pledgor's or
any other Person's financial condition or any other fact which might
materially increase the risk to Pledgor) with respect to any of the
Secured Obligations or all other demands whatsoever and waives the
benefit of all provisions of law which are or might be in conflict with
the terms of this Agreement. To the maximum extent permitted by
applicable law, Pledgor hereby waives any requirement on the part of
the holder of the Credit to mitigate the damages resulting from any
default under the Credit.
- 18 -
(b) If Lender may, under applicable law, proceed
to realize its benefits under the Guarantee, the Cash Collateral
Account Agreement or any of the Credit Documents giving Lender a Lien
upon any collateral, whether owned by Pledgor or by any other Person,
either by judicial foreclosure or by non-judicial sale or enforcement,
Lender may, at its sole option, determine which of its remedies or
rights it may pursue without affecting any of the rights and remedies
of Lender under this Agreement.
22. Reinstatement. This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by Lender in respect of the Secured Obligations is rescinded or must
otherwise be restored or returned by Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Pledgor or upon the appointment of
any intervenor or conservator of, or trustee or similar official for, Pledgor or
any substantial part of its assets, or otherwise, all as though such payments
had not been made.
23. Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction and shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
24. Time is of Essence. Time is of the essence of each
provision of this Agreement of which time is an element.
25. Survival of Provisions. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement, the Guarantee and the Cash Collateral Account
Agreement. Notwithstanding anything in this Agreement, the Guarantee, the Cash
Collateral Account Agreement or implied by law to the contrary, the agreements,
representations and warranties of Pledgor set forth herein shall terminate only
upon payment of the Secured Obligations (other than indemnity obligations) and
the termination of this Agreement.
26. Statute of Limitations; Suretyship Defenses. Pledgor
hereby waives the right to plead any statute of limitations as a defense to any
indebtedness or obligation hereunder or secured hereby to the full extent
permitted by law, and hereby waives all suretyship defenses.
27. Headings Descriptive. The headings in this Agreement
are for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
28. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of which
shall together constitute one and the same agreement.
29. GOVERNING LAW. THIS AGREEMENT IS GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
- 19 -
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS RULES OF THE
STATE OF NEW YORK.
30. Submission To Jurisdiction; Waivers. Pledgor hereby
irrevocably and unconditionally:
(i) submits for itself and its property
in any legal action or proceeding relating to this Agreement to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(ii) consents that any such action or
proceeding may be brought in such courts and waives any objection that
it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or claim the
same;
(iii) agrees that service of process in
any such action or proceeding may be effected by mailing a copy thereof
by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to Pledgor at its address set forth in Section
18 hereof, or at such other address of which the Lender shall have been
notified pursuant thereto;
(iv) agrees that nothing herein shall
affect the right to effect service of process in any other manner
permitted by law or shall limit the right to xxx in any other
jurisdiction; and
(v) waives, except in the case of bad
faith, willful misconduct or gross negligence (and otherwise to the
maximum extent not prohibited by law), any right it may have to claim
or recover in any legal action or proceeding referred to in this
section 30 any special, exemplary, or consequential damages.
31. WAIVERS OF JURY TRIAL. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, PLEDGOR AND LENDER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
[SIGNATURE PAGE TO FOLLOW]
- 20 -
IN WITNESS WHEREOF, Pledgor has caused this Agreement to be
duly executed and delivered as of the day and year first above written.
MGN AMERICA, INC.
By /s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx
President
By acceptance hereof as of the date first above written,
Lender agrees to be bound by the provisions hereof.
BANK LEUMI LE-ISRAEL B.M., as Lender
By /s/
_________________________________
Name:
Title:
By /s/
_________________________________
Name:
Title:
EXHIBIT A
Irrevocable Proxy
The undersigned hereby appoints BANK LEUMI LE-ISRAEL B.M.
("Lender"), as proxy with full power of substitution, and hereby authorizes
Lender to represent and vote all of the shares of the capital stock of Equity
One, Inc. acquired by the undersigned pursuant to that certain Equity One, Inc.
Common Stock Purchase Agreement, dated as of October 28, 2002 (the "Pledged
Shares") and all shares of the capital stock of Equity One, Inc. acquired by the
undersigned in respect of or in exchange for the Pledged Shares, all held of
record by the undersigned on the date of exercise hereof or at any meeting or at
any other time chosen by Lender in its sole discretion, but only at the times
and in the circumstances provided in that certain Pledge and Security Agreement
dated as of February 11, 2003, executed by the undersigned in favor of Lender.
MGN AMERICA, INC.
Date: _____________ By:_________________________________
Xxxxx Xxxxxxx
President
EXHIBIT B
Assignment Separate From Certificate
FOR VALUE RECEIVED, MGN AMERICA, INC. hereby sells, assigns
and transfers unto _______________________________ _______________________
(__________) Shares of the Common Stock of Equity One, Inc., a Maryland
corporation (the "Corporation"), standing in its name on the books of the
Corporation represented by Certificate(s) No. ___________ herewith and does
hereby irrevocably constitute and appoint ______________________ attorney to
transfer the said stock on the books of the Corporation with full power of
substitution in the premises.
Date: _______________
MGN AMERICA, INC.
By:_________________________________
Name:
Title:
