EXHIBIT 10.3
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PROMISSORY NOTE
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$ 437,500.00 Miami, Florida June 15, 2002
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FOR VALUE RECEIVED, the undersigned promises to pay to the order of
EQUITY ONE, INC., a Maryland Corporation the principal sum of FOUR HUNDRED
THIRTY SEVEN THOUSAND FIVE HUNDRED DOLLARS ($437,500.00), together with interest
thereon from date, at the rate of five and NO/100 (5.00%) percent per annum
until maturity, payable interest only in the sum of $5,468.75 quarterly,
commencing on September 30, 2002 and each December 30, March 30 and June 30,
thereafter until June 30, 2007, when the principal balance of $437,500.00 plus
accrued interest, if any, shall be due and payable; Said principal and interest
being payable in lawful money of the United States or its equivalent,
EQUITY ONE, INC.
1696 N.E. Miami Gardens Drive
North Miami Beach, FL 33179
This note may be prepaid, in part or in full, at any time; without
prepayment penalty. Any payment received more than ten (10) days after the due
date shall be subject to a five (5%) per cent late fee. In the event any payment
is not received within ten (10) days of the due date, then in such event, the
borrower shall be deemed in default, the interest rate thereafter will
automatically increase to the maximum rate then permitted by law and Mortgagee
shall be entitled to all remedies available.
The holder hereof shall have the optional right to declare the
principal sum disbursed hereunder and all accrued interest thereon to be due and
forthwith payable in advance of the maturity date fixed herein upon the failure
of the undersigned to pay, when due, any one of the installments of interest or,
at the option of the holder, upon the occurrence of any other event of default
by the undersigned in the Mortgage securing this Note after 15 days written
notice from the Holder to Maker. Failure to exercise this option with respect to
any failure or breach by the undersigned shall not constitute a waiver of the
right as to any subsequent failure or breach.
In no event shall interest (including any charge or fee held to be
interest by a court of competent jurisdiction) accrue to be payable herein in
excess of the highest contract rate allowable by law for the time such
indebtedness shall be outstanding and unpaid, and if by reason of the
acceleration of maturity of such indebtedness, or for any other reason, interest
in excess of the highest legal rate shall be due or paid, any such excess shall
constitute and be treated as a payment on the principal hereof and shall operate
to reduce such principal by the amount of such excess, or if in excess of the
principal indebtedness, such excess shall be waived or refunded to the maker.
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Each maker and endorser severally waives demand, protest, notice of
maturity and notice of nonpayment and all requirements necessary to hold each of
them liable as makers and endorser.
Each maker and endorser further agrees, jointly and severally, to pay
all costs of collection, including a reasonable attorney's fee in case the
principal of this note or any payment on the principal or any interest thereon
is not paid at the respective maturity thereof, or in case it becomes necessary
to protect the security hereof, whether suit be brought or not.
Upon default, this note and deferred interest payments shall bear
interest at the maximum rate allowed by law.
This note is secured by a Pledge Agreement of even date herewith and is
to be construed and enforced according to the laws of the State of Florida; upon
default in the payment of principal and/or interest due on any note secured by
said Pledge Agreement, all notes so secured and remaining unpaid shall forthwith
become due and payable notwithstanding their tenor.
All of the covenants, conditions, and agreements contained in the
Pledge Agreement and any other document evidencing the loan are hereby made a
part of this instrument.
The Lender and the Maker specifically agree that they waive all rights
to rely on or enforce any oral statements made prior to or subsequent to the
signing of this document.
The Lender and the Maker hereby knowingly, voluntarily and
intentionally waive the right either may have to a trial by jury with respect to
any litigation based hereon, or arising out of, under or in connection with this
document, and any agreement contemplated to be executed in conjunction herewith,
or any course of conduct, course of dealing, statements (whether verbal or
written) or actions of either party made before, during, or after the execution
of this document.
Venue and jurisdiction shall be in Miami Dade County, Florida, for any
affirmative or defensive legal proceeding in connection with this document
and/or any other document signed by the mortgagors, and/or borrowers in favor of
the Lender.
In Witness Whereof, the parties have set their hands and seals on the
date first above written.
/s/ ALAN MERKUR
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ALAN MERKUR
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PLEDGE AGREEMENT
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THIS PLEDGE AGREEMENT made and entered into this 15TH day of JUNE,
2002 by and among ALAN MERKUR ("Pledgor") and EQUITY ONE, INC. (the "Secured
Party").
WHEREAS, Pledgor has exercised 43,750 options at $10.00 per option to
purchase 43,750 shares of common stock of Equity One, Inc., par value $.01 per
share (the "Company"), which Pledgor intends to pledge as described herein, (the
"Common Shares");
WHEREAS, Pledgor is an employee of the Company and has received a loan
from the Company evidenced by a Promissory Note dated on even date in the sum of
$437,500 to pay for the Common Shares acquired through the exercise of the
options;
WHEREAS, the Company has requested from the Pledgor and the Pledgor has
agreed to pledge the Common Shares to secure the repayment of the loan.
WHEREAS, in consideration of the loan granted by the Company to the
Pledgor, the Pledgor has agreed to pledge its Common Shares to the Company; and
WHEREAS, as an additional inducement for the Company to grant the loan,
the Pledgor has agreed, Company a security interest in the Common Shares and any
proceeds thereof to secure the loan pursuant to this Pledge Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions, hereinafter set forth and for other good and valuable consideration,
the receipt and adequacy of which is hereby expressly acknowledged, the parties
hereto agree as follows:
(a) INDEBTEDNESS SECURED. This Pledge Agreement is executed to secure
the indebtedness of the Pledgor to the Company.
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(b) PLEDGE OF COLLATERAL. The Pledgor hereby pledges, assigns,
transfers, sets over, delivers and grants to the Company, subject to Section 4,
a first priority security interest in and to the Common Shares and any proceeds
thereof including, without limitation, any and all dividends (other than
dividends for taxes), cash, instruments and other property from time to time
received, receivable, or otherwise distributed in respect of, or in exchange
for, any of the Common Shares (such proceeds and the Common Shares are
collectively, the "Collateral"). Pledgor is delivering the Common Shares to the
Company, for the purpose of holding said Common Shares as pledge holder pursuant
to the terms of this Pledge Agreement. The Company shall have no right in and to
the Collateral except as provided in this Pledge Agreement, and the Company
shall not have any right to encumber or dispose of the Collateral except in
accordance with the provisions of this Pledge Agreement.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Pledgor hereby represents
to the Company as follows: (i) the Pledgor has the capacity to enter into this
Pledge Agreement and to pledge the Common Shares to the Company hereunder, (ii)
Pledgor owns the Common Shares free and clear of any and all liens, charges,
encumbrances and security interests thereon, (iii) the Common Shares are validly
issued, fully paid and non-assessable, and (iv) no authorization, approval, or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required either (a) for the pledge by the Pledgor of the
Common Shares pursuant to this Pledge Agreement or for the execution, delivery
or performance of this Pledge Agreement by the Pledgor, or (b) for the exercise
by the Company of the rights provided for in this Pledge Agreement or the
remedies in respect of the Common Shares pursuant to this Pledge Agreement
(except as may be required in connection with such disposition by laws affecting
the offering and sale of securities generally). Pledgor also represents that
Pledgor is solvent at the time of the execution of this Agreement and that
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Pledgor is benefitting from the Pledge; and that it has received reasonable
equivalent value for pledging the shares as security for the Loan from the
Company to the Pledgor.
3. DIVIDEND AND VOTING RIGHTS. So long as no Default (as defined
herein) has occurred and is continuing, the Common Shares shall be treated as
stock of the Pledgor, and the Pledgor shall be entitled to vote such shares and
to receive all dividends and distributions thereon.
4. ADJUSTMENTS. In the event that, during the term of this Pledge
Agreement, any stock dividend, reclassification, readjustment, or other change
is declared or made in the capital structure of the Company, all new,
substituted, and additional shares, or other securities, issued in respect of
the Common Shares by reason of any such change shall be held by the Company,
subject to the lien of this Pledge Agreement and under the terms of this Pledge
Agreement in the same manner as the Common Shares pledged hereunder.
5. PAYMENT OF INDEBTEDNESS. Upon payment of the principal and interest
of the indebtedness, the Company shall execute and deliver a confirmation of the
termination of this Pledge Agreement and the Common Shares shall be returned to
the Pledgor. Upon full payment of the principal and interest of the
indebtedness, this Pledge Agreement shall become null and void.
6. DEFAULT. Upon the occurrence of each of the following events, the
Company shall be entitled to effect the immediate repayment of all sums that are
and/or shall be owed in any manner whatsoever by the Pledgor to the Company and
such sums shall bear interest at the Maximum Interest Rate prevailing, from the
date that such event has occurred until total repayment by the Pledgor:
(a) If, on due date, the Pledgor has not paid any principal or
interest or expenses including any levies, taxes and fees or
any other sums.
(b) If the Pledgor breaches or fails to uphold any of the terms
contained in this
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or any other document or deed that has been or shall be signed
on his behalf or it becomes evident that any of the
declarations that have been or shall be made on behalf of the
Pledgor in this or any other document is incorrect, or
inaccurate.
(c) If a petition is filed requesting the appointment of a
temporary or permanent receiver, or a temporary or permanent
receiver or manager, or a Receiving Order against the Pledgor
is issued over the assets of the Pledgor and/or Pledgor or any
portion of the assets of the Pledgor.
(d) If a temporary or permanent receiver or receiver and manager
for all or any portion of the assets of the Pledgor is
appointed.
(e) If any competent court in Maryland or Florida or elsewhere
institutes attachments or execution or any like proceedings
against any portion of the assets of the Borrower or if
attachment or execution or any like proceedings are instituted
over all or any portion of the Collateral which has been or
shall be furnished to the Company.
(f) If the Company, at its absolute discretion, deems that since
the signing of this Agreement a change has occurred in the
condition of the Pledgor to which the Company had not given its
prior written consent. Without derogating from the generally of
the foregoing, the following acts shall be deemed to constitute
a change in the condition of the Pledgor:
(i) a voluntary or other transfer of shares (except the
transfer of shares by succession) which affect or are
likely to affect the condition of the Pledgor.
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(g) If the Borrower ceases to pay debts or manage its
affairs or reaches a compromise or arrangement with its
creditors.
(h) If the Company, at its discretion, deems that some event
occurred that has or might impair the financial position
of the Pledgor.
In addition to all remedies provided herein and according to law, the
Company shall have the following remedies:
PRIVATE SALES: (a) The Pledgor recognizes that the Company may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for an investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and, not
withstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Company shall
be under no obligation to delay a sale of any of the Pledged Stock for the
period of time necessary to permit the Issuer thereof to register such
securities for the public sale under the Securities Act, or under applicable
state securities laws, even if such Issuer would agree to do so.
(b) The Pledgor further agrees to use commercially reasonable efforts
to do so 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 Stock pursuant to this
Section valid and binding and in compliance with any and all other applicable
requirements of law.
6. NOTICES. All notices, requests, demands or other communications
which are required
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or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given when they are made by facsimile and shall be deemed to be
sufficient made if addressed as follows:
If to the Pledgor: ALAN MERKUR
1696 NE Miami Gardens Drive Suite 200
North Miami Beach, FL 33179
Phone 305-947-1664
Facsimile 305-947-1734
If to the Company: Equity One, Inc.
Attention: Chaim Katzman
1696 NE Miami Gardens Drive Suite 200
North Miami Beach, FL 33179
Phone 305-947-1664
Facsimile 305-947-1734
with a copy to: Alan J. Marcus, Esquire
20803 Biscayne Blvd. Suite 301
Aventura, FL 33180
Phone 305-937-1800
Facsimile 305-937-1857
and any such facsimile properly addressed and sent shall be deemed to have been
received within twelve (12) hours after the time of sending. In addition, all
notices shall also be sent by courier or messenger, although failure to do so
shall not invalidate the facsimile notice.
7. GOVERNING LAW AND JURISDICTION. This Pledge Agreement shall be
governed by and construed in accordance with the laws of the State of Florida.
8. VENUE. The parties hereby select the Miami Dade County as the place
of jurisdiction for any legal proceeding arising pursuant to this Pledge
Agreement.
IN WITNESS WHEREOF, this Pledge Agreement has been duly executed on the
day and year first written above.
PLEDGOR:
/s/ ALAN MERKUR
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ALAN MERKUR
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EQUITY ONE, INC.,
A Maryland Corporation
BY: /s/ CHAIM KATZMAN
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CHAIM KATZMAN, Chief Executive Officer
STATE OF FLORIDA
COUNTY OF MIAMI DADE
I HEREBY CERTIFY that on this day personally appeared before me, an
officer duly authorized to administer oaths and take acknowledgments, BARBARA
MILLER, ( ) known to me to be the person described in or ( ) who produced
____________________________ as identification, and who executed the foregoing
instrument, and acknowledged before me that he executed the same.
WITNESS my hand and official seal, this 1st day of July , 2002.
/s/ MICHELE L. GUARD
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(Notary Seal) NOTARY PUBLIC
My commission expires: 6/14/2002
No. CC 750963
[X] Personally Known [ ] Other I.D.
STATE OF FLORIDA
COUNTY OF MIAMI DADE
I HEREBY CERTIFY that on this day personally appeared before me, an
officer duly authorized to administer oaths and take acknowledgments, CHAIM
KATZMAN, Chief Executive Officer of EQUITY ONE, INC.( ) known to me to be the
person described in or ( ) who produced ____________________________ as
identification, and who executed the foregoing instrument, and acknowledged
before me that he executed the same.
WITNESS my hand and official seal, this 1st day of April, 2002.
/s/ MICHELE L. GUARD
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(Notary Seal) NOTARY PUBLIC
My commission expires: 6/14/2002
No. CC 750963
[X] Personally Known [ ] Other I.D.
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