EXHIBIT 6
GUARANTEE
GUARANTEE dated as of February 11, 2003 (this "Guarantee"), made by MGN
AMERICA, INC., a Nevada corporation (the "Guarantor"), in favor of BANK LEUMI
LE-ISRAEL B.M. (the "Lender").
W I T N E S S E T H:
WHEREAS, the 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 (the "Borrower"), upon the terms and
subject to the conditions set forth in that certain (i) commitment letter dated
October 28, 2002, between the Lender and the Borrower (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 the Lender and the Borrower
(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 the Borrower 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 the Borrower and the 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 the
Borrower in favor of Lender in connection with the Credit, the "Credit
Documents"); and
WHEREAS, the Borrower intends to loan or contribute the proceeds of the
Credit to the Guarantor, its subsidiary, in order that the Guarantor may
purchase of up to 4,284,820 shares of the capital stock of Equity One, Inc., a
Maryland corporation ("EOI"); and
WHEREAS, it is a condition precedent to the obligation of the Lender to
grant the Credit that, among other things, the Guarantor, guarantee the payment
and performance of the Credit and all other obligations of the Borrower under
the Credit Documents pursuant to this Guarantee;
NOW, THEREFORE, in consideration of the premises, the Guarantor hereby
agrees with the Lender as follows:
1. Defined terms.
(a) The following capitalized terms shall have the
following meanings:
"Cash Collateral Agreement": means that certain Cash
Collateral Agreement dated as of the date hereof, among the
Lender, the Guarantor and Bank Leumi USA, as amended, supplemented
or modified from time to time.
"Contractual Obligation" means as to any Person, any term or
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is
a party or by which it or any of its property is bound.
"Event of Default" shall mean any event of default occurring
and continuing under any document or instrument that evidences or
secures the Secured Obligations.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, government.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, security interest, assignment, encumbrance, claim,
lien, lease or charge of any kind, whether voluntarily incurred or
arising by operation of law or otherwise, affecting any assets or
property, including any agreement to give or grant any of the
foregoing, any conditional sale or other title retention agreement
and the filing of or agreement to give any financing statement
with respect to any assets or property under the Uniform
Commercial Code or comparable law of any jurisdiction.
"Material Adverse Effect" means (X) a material adverse
effect on (a) the business, operations, property, condition
(financial or otherwise) or prospects of the Guarantor or the
Borrower, (b) the validity or enforceability of this or any of the
other documents made, delivered or given in connection with this
Guarantee or any other document or instrument that evidences or
secures the Secured Obligations, (c) the rights or remedies of the
Lender hereunder, or under any document or instrument that
evidences or secures the Secured Obligations, or any of the other
agreements or documents made, delivered or given in connection
therewith, (Y) any impairment to the validity, perfection or
priority of the security interest of the Lender in the Pledged
Collateral (as defined in the Pledge and Security Agreement) 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, estate, unincorporated organization or
association, joint venture, Governmental Authority, or other
entity of whatever nature.
"Pledge and Security Agreement" means that certain Pledge
and Security Agreement dated as of the date hereof from the
Guarantor in favor of the Lender, as amended, supplemented or
modified from time to time.
"Requirement of Law" means as to any Person, the articles
or certificate of incorporation, certificate of formation,
operating agreement, and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation 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 the Borrower now or hereafter owing to the Lender
under or in connection with the
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Credit or the Credit Documents or any other loan, extension of
credit or accommodation now or hereafter made or granted by the
Lender (each such other loan, extension of credit or
accommodation, an "Other Credit"), 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 the Borrower,
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 the Lender by the Borrower under any Credit Document
(including, without limitation, all fees and disbursements of
counsel to the Lender that are required to be paid by the
Borrower to the Lender pursuant to any Credit Document or any
Other Credit), and (iii) any renewals or extensions of the Credit
or Credit Documents or any Other Credit.
"Termination Date" shall mean the date on which all
commitments, if any, of the Lender to make any loans, extensions
of credit or other accommodations to the Borrower have been
terminated and the Secured Obligations have been paid in full,
subject to reinstatement pursuant to paragraph 7 hereof, other
than any indemnification obligations not then due and payable.
(b) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Guarantee shall refer to this
Guarantee as a whole and not to any particular provision of this Guarantee, and
section and paragraph references are to this Guarantee unless otherwise
specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Guarantee.
(a) Subject to the provisions of paragraph 2(b) hereof,
the Guarantor hereby absolutely, unconditionally and irrevocably guarantees to
the Lender and for its respective successors, indorsees, transferees and
assigns, the prompt and complete payment and performance by the Borrower when
due (whether at the stated maturity, by acceleration or otherwise) of the
Secured Obligations.
(b) Notwithstanding anything herein to the contrary, the
maximum liability of the Guarantor hereunder shall in no event exceed the amount
which can be guaranteed by the Guarantor under applicable federal and state laws
relating to the insolvency of debtors.
(c) The Guarantor further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) which may be paid or incurred by the Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Secured Obligations and/or enforcing any rights
with
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respect to, or collecting against, the Guarantor under this Guarantee. Without
limiting the generality of the foregoing, the Guarantor's liability shall extend
to all amounts that constitute part of the Secured Obligations and would be owed
by the Borrower but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving the Borrower. This Guarantee shall remain in full force and effect
until, and shall terminate on, the Termination Date. The provisions of the first
and second sentences of this paragraph shall survive the termination of this
Guarantee and the payment in full of the Secured Obligations. The Guarantor
agrees that the Secured Obligations may at any time and from time to time exceed
the amount of the liability of the Guarantor hereunder without impairing this
Guarantee or affecting the rights and remedies of the Lender.
(d) No payment made by the Borrower, the Guarantor, or
any other guarantor or Person and no payment or amount received or collected by
the Lender from the Borrower, the Guarantor, or any other guarantor or Person by
virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of, or in payment of,
the Secured Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of the Guarantor hereunder, and the Guarantor shall,
notwithstanding any such payment (other than any payment made by the Guarantor
in respect of the Secured Obligations or any payment or amount received or
collected from the Guarantor in respect of the Secured Obligations), remain
liable for the Secured Obligations up to the maximum liability of the Guarantor
hereunder until the Termination Date.
(e) The Guarantor agrees that whenever, at any time, or
from time to time, it shall make any payment to the Lender on account of its
liability hereunder, it will notify the Lender in writing that such payment is
made under this Guarantee for such purpose.
3. Right of Set-off. At any time when an Event of Default has
occurred and is continuing, the Guarantor hereby irrevocably authorizes the
Lender at any time and from time to time without notice to the Guarantor, any
such notice being expressly waived by the Guarantor, to set-off and appropriate
and apply any and all deposits (general or special, time or demand, provisional
or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by the Lender to or for the
credit or the account of the Guarantor, or any part thereof in such amounts as
the Lender may elect, against and on account of the obligations and liabilities
of the Guarantor to such holder hereunder and claims of every nature and
description of such holder against the Guarantor, in any currency, whether
arising hereunder, under the Credit Documents, or otherwise, as the Lender may
elect, whether or not the Lender has made any demand for payment and although
such obligations, liabilities and claims may be contingent or unmatured. The
Lender shall notify the Guarantor promptly of any such set-off, provided that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Lender under this paragraph are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which the Lender may have.
4. No Subrogation. Notwithstanding any payment made by the
Guarantor hereunder or any set-off or application of funds of the Guarantor by
the Lender, the Guarantor shall not be
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entitled to be subrogated to any of the rights of the Lender against the
Borrower or any collateral security or guarantee or right of offset held by the
Lender for the payment of the Secured Obligations, nor shall the Guarantor seek
or be entitled to seek any contribution or reimbursement from the Borrower in
respect of payments made by the Guarantor hereunder, until all amounts owing by
the Borrower to the Lender on account of the Secured Obligations are
indefeasibly paid in full. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time when all of the Secured
Obligations shall not have been indefeasibly paid in full, such amount shall be
held the Guarantor in trust for the Lender, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Lender in the exact form received by the Guarantor (duly indorsed by the
Guarantor to the Lender, if required), to be applied against the Secured
Obligations, whether matured or unmatured.
5. Amendments, etc. with respect to the Secured Obligations;
Waiver of Rights. The Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the Guarantor and without notice
to or further assent by the Guarantor, any demand for payment of any of the
Secured Obligations made by the Lender may be rescinded by the Lender and any of
the Secured Obligations continued, and the Secured Obligations, or the liability
of any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Lender, and the agreements
and instruments giving rise to the Secured Obligations and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Lender may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Lender for the payment of the Secured Obligations
may be sold, exchanged, waived, surrendered or released. The Lender shall have
no obligation to protect, secure, perfect or insure any Lien at any time held by
it as security for the Secured Obligations or for this Guarantee or any property
subject thereto. When making any demand hereunder against the Guarantor, the
Lender may, but shall be under no obligation to, make any similar demand on any
other Person, and (i) any failure by the Lender to make any demand or to collect
any payments from the Borrower or any other guarantor or Person, or (ii) any
release of any other guarantor or Person, shall not relieve or release the
Guarantor of its obligations and liabilities hereunder, and shall not impair or
affect the rights and remedies, express or implied or as a matter of law, of the
Lender against the Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives all
suretyship defenses and any and all notice of the creation, renewal, extension
or accrual of any of the Secured Obligations and notice of or proof of reliance
by the Lender upon this Guarantee or acceptance of this Guarantee; the Secured
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee, and all dealings between the Borrower and the Guarantor, on
the one hand, and the Lender, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. The
Guarantor waives diligence,
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presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or the Guarantor with respect to the Secured Obligations.
The Guarantor understands and agrees that this Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity, regularity or enforceability of the Secured Obligations, any
document, instrument, agreement or guarantee evidencing, securing or
guaranteeing the Secured Obligations, or any right of offset with respect
thereto at any time or from time to time held by the Lender, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by the Borrower against the
Lender, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of or the Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Secured
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against the Borrower or any other Person or
against any collateral security or guarantee for the Secured Obligations or any
right of offset with respect thereto, and any failure by the Lender to pursue
such other rights or remedies or to collect any payments from the Borrower or
any such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the
Borrower or any such other Person or any such collateral security, guarantee or
right of offset, shall not relieve the Guarantor of any liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Lender against the Guarantor.
7. Reinstatement. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Secured Obligations is rescinded or must otherwise be
restored or returned by the Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or the Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or the Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
8. Payments. The Guarantor hereby guarantees that payments
hereunder will be paid to the Lender without set-off or counterclaim in U.S.
Dollars at the office of the Lender located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Construction and Real Estate Division, or to such
other address as the Lender shall so notify the Guarantor in writing.
9. Representations and Warranties. The Guarantor hereby
represents and warrants that:
(a) it is a corporation duly organized, validly existing
and in good standing under the laws of its organization and has the corporate
power and authority and the legal right to own and operate its property, to
lease the property it operates and to conduct the business in which it is
currently engaged;
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(b) it has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations under, this
Guarantee, and has taken all necessary action to authorize its execution,
delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, general equitable principles and an implied
covenant of good faith and fair dealing;
(d) the execution, delivery and performance of this
Guarantee will not violate any provision of any Requirement of Law or
Contractual Obligation of the Guarantor (except to the extent that any such
violation would not reasonably be expected to have a Material Adverse Effect)
and will not result in or require the creation or imposition of any Lien on any
of the properties or revenues of the Guarantor pursuant to any Requirement of
Law or Contractual Obligation of the Guarantor;
(e) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and no consent
of any other Person (including, without limitation, any stockholder or creditor
of the Guarantor) is required in connection with the execution, delivery,
performance, validity or enforceability of this Guarantee, other than any which
have been obtained or made prior to the date hereof and remain in full force and
effect; and
(f) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Guarantor, threatened by or against the Guarantor or against any of its
properties or revenues with respect to this Guarantee or any of the transactions
contemplated hereby.
The Guarantor agrees that the foregoing representations and warranties
shall be deemed to have been made by the Guarantor on the date of each credit
extension or accommodation made to the Borrower under the Credit Documents on
and as of such date as though made hereunder on and as of such date.
10. Notices. All notices, requests and demands to or upon the
Lender or the Guarantor 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
overnight/international delivery, when delivered, or (b) in the case of delivery
by facsimile transmission, when sent and receipt has been confirmed (with copy
sent via overnight/international delivery promptly thereafter), addressed as
follows:
(a) if to the Lender, at: Bank Leumi le-Israel B.M., ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Construction and Real
Estate Division, Fax No.: ▇▇▇-▇-▇▇▇-▇▇▇▇; and
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(b) if to the Guarantor, at: MGN America, Inc., ▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
President, Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇, with copy to : ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, White &
Case LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇.
The Lender and the Guarantor may change its address and facsimile
numbers for notices by notice in the manner provided in this paragraph 10.
11. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. Integration. This Guarantee represents the agreement of the
Guarantor with respect to the subject matter hereof and there are no
promises or representations by the Lender relative to the subject matter hereof
not reflected herein, the Credit Documents, the Pledge and Security Agreement,
and the Cash Collateral Agreement.
13. Amendments in Writing, No Waiver, Cumulative Remedies.
(a) None of the terms or provisions of this Guarantee may
be waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Guarantor and the Lender, provided that any provision
of this Guarantee may be waived by the Lender in a letter or agreement executed
by the Lender or by facsimile transmission from the Lender.
(b) The Lender shall not by any act (except by a written
instrument pursuant to paragraph 13(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Lender, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Lender would otherwise have
on any future occasion,
(c) The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
14. Paragraph Heading. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
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15. Successors and Assigns. This Guarantee shall be binding upon
the successors and assigns of the Guarantor and shall inure to
the benefit of the Lender and its successors and assigns.
16. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
17. Submission To Jurisdiction; Waivers. The Guarantor hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Guarantee 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 the
Guarantor at its address set forth in Section 10
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 ▇▇▇ 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 paragraph 17 any
special, exemplary, or consequential damages.
18. WAIVERS OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE GUARANTOR AND THE LENDER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTEE OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
MGN AMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
President