Ex 10.1


PROMISSORY NOTE


U.S. $3,000,000.00


Dated: As of February 25, 2013, 


New York, New York



	
  
 	
  
 	
  
 
	
 1.
 	
 Obligation and Repayment: For value received, Borrower
 absolutely and unconditionally promises to pay to the order of the Bank, at
 the Office, without defense, setoff or counterclaim, the principal amount of Three Million and 00/100 United States Dollars,
 together with interest and any other sum(s) due and payable as specified
 below. The principal amount of this Note shall be due and payable in
 consecutive monthly installments, of which each but the last shall be in the
 amount of $83,333.33 and the
 last of which shall be equal to the then unpaid principal balance of this
 Note. The first such installment shall be due on March 25, 2013. Each subsequent installment shall be due on
 the corresponding day of each month thereafter (or if such
 corresponding day is not a Business Day, on the immediately succeeding
 Business Day). The remaining principal balance shall be due on February 25, 2016, unless due and payable
 sooner in accordance with the terms of this Note and Rider.
 
	
  
 	
  
 
	
 2.
 	
 Interest: Subject to paragraph A(2) of
 the Terms and Conditions, interest shall accrue on the principal amount of
 this Note outstanding from time to time at the following rate
 described in the Rider referred to in Paragraph 3 below (the “Loan Rate”).
 Interest shall be payable in accordance with the attached Rider and at
 any Payment Date and at any time that any part of the principal or any
 installment of this Note is paid.
 
	
  
 	
  
 
	
 3.
 	
 Riders: In the event of any inconsistency
 between this Note and any Rider(s) to which this Note is subject, the
 provisions of such Rider(s) shall prevail. This Note is subject to the
 following Rider, which is part of this Note:
 
	
  
 	
  
 
	
  
 	
 Term Or
 Installment Rider To Promissory Note Loan(s) Denominated In U.S. Or Other
 Currency LIBOR-Based Rate
 
	 
	 

	
 4.
 	
 Address and Identification of Borrower:
 
	
  
 	
 Address:
 	
 85 Fifth Avenue
 
	
  
 	
  
 	
 New York, NY 
 
	
  
 	
 Telephone No.: 212-206-8800
 
	
  
 	
 Fax No.: 212-206-8814
 
	
  
 	
 Tax ID: 13-3156768
 
	 
	 

	
 5.
 	
 Agreement to All Terms and Conditions: This Note is
 subject to all of the Terms and Conditions set forth below. Each of the
 undersigned agrees to all of the provisions of this Note, including the Terms
 and Conditions and any Rider(s). 
 
	 
	 

	
 6.
 	
 No Representations or Agreements by the Bank: Each of the
 undersigned acknowledges that the Bank has made no representation, covenant,
 commitment or agreement to Borrower except pursuant to any written document
 executed by the Bank.
 
	 
	 

	
 7.
 	
 No Representation of Nonenforcement: Each of the
 undersigned acknowledges that no representative or agent of the Bank has
 represented or indicated that the Bank will not enforce any provision of this
 Note, including the Terms and Conditions and any Rider(s), in the
 event of litigation or otherwise.
 
	 
	 

	
 8.
 	
 Waiver of Jury Trial: Borrower waives, and understands
 that the Bank waives, the right to a jury trial with respect to any dispute
 arising hereunder or relating to any of the Liabilities; any judicial
 proceeding with respect to any such dispute shall take place without a jury. 
 
	 
	 

	
 9.
 	
 Execution of Promissory Note: Borrower
 understands that by signing this Note he/she/it is agreeing to all of the
 terms as contained in this Note and all other Terms and Conditions and
 Rider(s) attached hereto and made a part hereof.
 
	
  
 	
  
 
	
  
 	
 Print name of Borrower: ARK
 RESTAURANTS CORP.
 






	
  

 	
  

 	
  

 	
  

 
	 

 	 

 
	
 (Signature) By

 	
 /s/ Michael
 Weinstein

 	
  

 
	
  

 	 

 	 

 
	
 Print name:

 	
 Michael Weinstein

 	
  

 
	
  

 	 

 	 

 	 

 
	
 Title or capacity
 (if signing on behalf of Borrower): 

 	
 Chairman and CEO

 
	
  

 	 

 






	
  

 	
  

 	
  

 	
  

 
	
 (Signature) By:

 	
 /s/ Robert J.
 Stewart

 	
  

 
	
  

 	 

 	 

 
	
 Print name:

 	
 Robert J. Stewart

 	
  

 
	
  

 	 

 	 

 	 

 
	
 Title or capacity
 (if signing on behalf of Borrower): 

 	
 CFO and Treasurer

 
	
  

 	 

 










TERMS AND CONDITIONS


Definitions are set forth in paragraph N.


	
  

 	
  

 	
  

 
	
  

 	
 A. Calculation
 and Accrual of Interest: (1) Generally. Interest shall be calculated on a
 daily basis on outstanding balances at the Applicable Rate, divided by 360,
 on the actual days elapsed. During any time that the Applicable Rate would
 exceed the applicable maximum lawful rate of interest, the Applicable Rate
 shall automatically be reduced to such maximum rate. Any interest payment
 made in excess of such maximum rate shall be applied as, and deemed to be, in
 the Bank’s sole discretion, (a) a payment of any of the Liabilities, in
 such manner as determined by the Bank, or (b) cash collateral to be
 retained by the Bank to secure repayment of this Note. (2) Increased Rate. Interest shall accrue
 at the Increased Rate upon and after (a) the occurrence of any Debtor
 Relief Action, (b) any demand of payment of this Note (if payable on
 demand) or (c) the occurrence of any Event of Default (if this Note is
 payable other than on demand). (3) Accrual.
 To the extent permitted by Law, interest shall accrue at the Applicable Rate
 on all unpaid Liabilities under this Note, including but not limited to any
 unpaid interest and any unpaid obligation owed pursuant to paragraph B
 (Indemnification).

 






	
  

 	
  

 
	
 B.

 	
 Indemnification: To the extent permitted by Law: (1) Taxes. All payments under this Note shall
 be made free and clear of, and without deduction for, any Taxes. If Borrower
 shall be required to deduct any Taxes in respect of any sum payable under
 this Note, then (a) the sum payable shall be increased so that the Bank
 shall receive an amount equal to the sum the Bank would have received had no
 deductions been made, and (b) Borrower shall make such deductions and
 shall pay the amount deducted to the relevant Governmental Authority.
 Borrower shall pay to the Bank on demand, and shall indemnify and hold the
 Bank harmless from, any and all Taxes paid by the Bank and any and all
 liability (including penalties, interest and expenses) with respect thereto,
 whether or not such Taxes were correctly or legally asserted. Within 30 days
 after any Taxes are paid, Borrower shall furnish evidence thereof to the
 Bank. (2) Regulatory Costs. In
 the event that in connection with the transaction(s) contemplated by this
 Note and/or the Bank’s funding of such transaction(s), the Bank is required
 to incur any Regulatory Costs in order to comply with any Law issued after
 the date of this Note, then Borrower shall pay to the Bank on demand, and
 shall indemnify and hold the Bank harmless from, any and all such Regulatory
 Costs. (3) Costs and Expenses.
 Borrower shall pay the Bank on demand, and shall indemnify and hold the Bank
 harmless from, any and all Costs and Expenses. (4) Prepayment Costs. If Borrower makes any payment of
 Prepaid Principal (voluntarily or not), and if the Applicable Rate with
 respect to such Prepaid Principal is not a Variable Prime-Based Rate, then
 Borrower shall pay to the Bank an amount sufficient to compensate the Bank
 for its Prepayment Costs. Borrower acknowledges that determining the actual
 amount of Prepayment Costs may be difficult or impossible in any specific
 instance. Accordingly, Borrower agrees that Prepayment Costs shall be deemed
 to be the excess, if any, of (i) the product of (A) the
 Prepaid Principal, times (B) the Applicable Rate divided by 360, times
 (C) the remaining number of days from the date of the payment to the
 applicable Payment Date, over (ii) that amount of interest which
 the Bank determines that the holder of a Treasury Obligation selected by the
 Bank in the amount (or as close to such amount as feasible) of the Prepaid
 Principal and having a maturity date on (or as soon after as feasible) the
 applicable Payment Date would earn if that Treasury Obligation were purchased
 in the secondary market on the date the Prepaid Principal is paid to the Bank
 and were held to maturity. Borrower agrees that the determination of
 Prepayment Costs shall be based on amounts which a holder of a Treasury
 Obligation could receive under these circumstances, whether or not the Bank
 actually invests the Prepaid Principal in any Treasury Obligation. (5) Bank Certificate. The Bank’s
 certificate as to any amounts owing under this paragraph shall be prima facie
 evidence of Borrower’s obligation.

 
	
 C.

 	
 Set Off: Every Account of Borrower with
 the Bank shall be subject to a lien and to being set off against the Liabilities.
 The Bank may at any time at its option and without notice, except as may be
 required by law, charge and/or appropriate and apply all or any part of any
 such Account toward the payment of any of the Liabilities.

 
	
 D.

 	
 Events of Default: The remainder of this
 paragraph D shall not apply if this Note is payable on demand. Each of the following shall be an
 Event of Default hereunder: (1) Nonpayment.
 (a) The nonpayment when due of any part of the Liabilities; (b) the prohibition by any Law of payment
 of any part of any of the Liabilities. (2)
 Bankruptcy; Adverse Proceedings. (a) The occurrence of any Debtor
 Relief Action; (b) the
 appointment of a receiver, trustee, committee, custodian, personal
 representative or similar official for any Party or for any Material part of
 any Party’s property if such appointment continues in effect for 60 days
 without being vacated; (c) any
 action taken by any Party to authorize or consent to any action set forth in
 subparagraph D(2)(a) or (b); (d)
 the rendering against any Party of one or more judgments, orders, decrees
 and/or arbitration awards (whether for the payment of money or injunctive or
 other relief) which in the aggregate are Material to such Party, if they
 continue in effect for 60 days without being vacated, discharged, stayed,
 satisfied or performed; (e) the
 issuance or filing of any warrant, process, order

 













	
  

 	
  

 
	
  

 	
 of attachment, garnishment
 or other lien or levy against any Material part of any Party’s property; (f) the commencement of any proceeding
 under, or the use of any of the provisions of, any Law against any Material
 part of any Party’s property, including but not limited to any Law
 (i) relating to the enforcement of judgments or (ii) providing for
 forfeiture to, or condemnation, appropriation, seizure or taking possession
 by, or on order of, any Governmental Authority; (g) the forfeiture to, or the condemnation, appropriation,
 seizure, or taking possession by, or on order of, any Governmental Authority,
 of any Material part of any Party’s property; (h) any Party being charged with a crime by indictment,
 information or the like. (3) Noncompliance.
 (a) Any Default with respect to any Agreement with or to the Bank,
 which Default the Borrower failed to cure within 30 days after the Bank’s
 written notice to the Borrower thereof; it being understood that nonpayment
 Defaults shall not be subject to the 30-day cure period provided in this
 Section D(3)(a); (b) the giving
 to the Bank by or on behalf of any Party at any time of any materially
 incorrect or incomplete representation, warranty, statement or information; (c) without limiting Borrower’s
 obligation to deliver certain financial statements pursuant to Section 5 of
 the Letter Agreement dated the date hereof between the Borrower and the Bank,
 the failure of any Party to furnish to the Bank, copies of its financial
 statements and such other information respecting its business, properties,
 condition or operations, financial or otherwise, promptly when, and in such
 form as, reasonably required or requested by the Bank in writing upon
 reasonable notice; (d) any
 Party’s failure or refusal, upon reasonable notice from the Bank, to permit
 the Bank’s representative(s) to visit such Party’s premises during normal
 business hours and to examine and make photographs, copies and extracts of
 such Party’s property and of its books and records; (e) any Party’s concealing, removing or
 permitting to be concealed or removed, any part of its property with the
 intent to hinder or defraud any of its creditors; (f) any Party’s making or suffering any Transfer of any of
 its property, which Transfer is deemed fraudulent under the law of any
 applicable jurisdiction; (g) the
 revocation or early termination of any Party’s obligations under any
 Agreement with or to the Bank (including but not limited to any of the
 Liabilities), or the validity, binding effect or enforceability of any of
 such obligations being challenged or questioned, whether or not by the
 institution of proceedings. (h)
 the revocation, withdrawal, expiration, reduction or default of or under any
 related Letter of Undertaking or guarantee, or any agreement to which a
 Letter of Undertaking or guarantee was issued. (4) Adverse Changes. (a) The occurrence of a Material
 adverse change in any Party’s financial condition; (b) the death or incompetence (if a person) or the
 dissolution or liquidation (if a corporation, partnership or other entity) of
 any Party or such Party’s failure to be and remain in good standing and
 qualified to do business in each jurisdiction Material to such Party; (c) any Material Default with respect to
 any Material Agreement other than with or to the Bank, which Material Default
 the Borrower failed to cure within 30 days after the Bank’s written notice to
 the Borrower thereof; it being understood that Material nonpayment Defaults
 shall not be subject to the 30-day cure period provided in this Section
 D(4)(c); (d) any Default
 pursuant to which any Person shall have the power to effect an Acceleration
 of any Material Debt; (e) any
 Acceleration or demand of payment with respect to any Material Debt; (f) any Party’s becoming insolvent, as
 defined in the Uniform Commercial Code; (g)
 the Bank’s believing in good faith that the prospect of payment of any of the
 Liabilities is impaired; (h) the
 Material suspension of any Party’s business; (i) any Party’s Material failure to pay any tax when due; (j) the expulsion of any Party from any
 exchange or self-regulatory organization or any loss, suspension, nonrenewal
 or invalidity of any Party’s Material license, permit, franchise, patent,
 copyright, trademark or the like; (k)
 the occurrence of any event which gives any Person the right to assert a
 lien, levy or right of forfeiture against any Material part of any Party’s
 property; (l) Borrower’s failure
 to give the Bank notice, within 10 Business Days after Borrower had
 notice or knowledge, of the occurrence of any event which, with the giving of
 notice and/or lapse of time, would constitute an Event of Default. (5) Business changes. (a) any change in
 Control of any Party; (b) any
 merger or consolidation involving any Party; (c) any Party’s sale or other Transfer of substantially all
 of its property; (d) any bulk
 sale by any Party not in the ordinary course of busienss; (e) any Material change in the nature or
 structure of any Party’s business. (6)
 Exchange Controls. (a) Any Party’s failure to obtain any Exchange
 Control Permit deemed by the Bank to be necessary or appropriate; (b) the failure to obtain the renewal of
 any such Exchange Control Permit at least 30 days prior to its expiration.

 
	
 E.

 	
 Remedies: (1) Acceleration at Bank’s Option.
 Upon any failure to pay this Note in full on demand (if payable on demand)
 or (if this Note is payable other than on demand) upon the occurrence of
 any Event of Default other than any Debtor Relief Action, then any and all
 Liabilities, not then due, shall, at the Bank’s option, become immediately
 due and payable without notice, which Borrower waives. (2) Automatic
 Acceleration. Upon the occurrence of any Debtor Relief Action,
 then, whether or not any of the Liabilities are payable upon demand and
 notwithstanding paragraph F, any and all Liabilities not then due, shall
 automatically become immediately due and payable without notice or demand,
 which Borrower waives. (3) Additional Remedies. Bank shall have all
 rights and remedies available to it under any applicable Agreement or Law.

 
	
 F.

 	
 Waiver of Protest, etc.: Notice,
 presentment, protest, notice of dishonor and (except for such of the
 Liabilities as are payable on demand, but subject to subparagraph E(2))
 demand for payment are hereby waived as to all of the Liabilities.

 
	
 G.

 	
 Payment: (1) Manner. Any payment by other than
 immediately available funds shall be subject to collection. Interest shall
 continue to accrue until the funds by which payment is made are available to
 the Bank. If and to the extent any payment of any of the Liabilities is not
 made when due, the Bank is authorized in its discretion to effect payment by
 charging any amount so due against any Account of Borrower with the Bank
 without notice, except as may be required by law, whether or not such charge
 creates an overdraft. (2) Application.
 Any payment received by the Bank (including a deemed payment under
 paragraph A, a set-off under paragraph C or a charge against an
 Account under this paragraph G) shall be applied to pay any obligation
 of indemnification (including but not limited to under paragraph B) and
 to pay any other Liabilities (including interest thereon and the principal
 thereof) in such order as the Bank shall elect in its discretion. Borrower
 will continue to be liable for any deficiency. (3) Prepayment. Borrower shall be entitled to pay any
 outstanding principal amount or installment under this Note on any Business
 Day prior to the applicable Payment Date without the prior consent of the
 Bank, provided that (a) any such payment shall be together with payment
 of all Liabilities then due and all interest accrued on the Prepaid Principal
 to the date of such payment, and (b) if the Applicable Rate with respect
 to such Prepaid Principal is not a Variable Prime-Based Rate, any such
 payment shall be on not less than 5 Business Days’ notice to the Bank and
 shall be accompanied by any amount required pursuant to
 subparagraph B(4). Any such payment shall, unless otherwise consented to
 by the Bank, be applied pro rata to the last outstanding principal amount(s)
 to become due under this Note in inverse order of maturity. (4) Non-Business Days. If any payment of
 any of the Liabilities is due on any day that is not a Business Day, it shall
 be payable on the next Business Day. The additional day(s) shall be included
 in the computation of interest. (5)
 Extension at Bank’s Option. The Bank shall have the 

 



 









	
  

 	
  

 
	
  

 	
 option, which may be exercised one or more times by notice(s) to
 Borrower, to extend the date on which any amount is payable hereunder to one
 or more subsequent date(s) set forth in such notice(s). (6) Late Payment. Without limiting
 or waiving any rights or remedies of the Bank contained in the Note or under
 applicable law, and without implying that the Bank has any obligation to
 declare or to notify the Borrower of the occurrence of any Event of Default,
 if the Bank has neither declared nor notified the Borrower of the occurrence
 of an Event of Default, and if any amount of any required payment of
 principal, interest fees and/or Late Charge (as defined below) under the Note
 is not paid in full within (7) seven days after the same is due, then in
 addition to all interest, penalty interest or other fees due to the Bank
 pursuant to the Note, any rider to the Note or any agreement or document
 related to this credit facility, the Borrower shall pay the Bank a late fee
 equal to $14.30 for each day thereafter. Any amount due under this paragraph
 shall be referred to herein as a “Late Charge”. The Borrower shall pay any
 and all such Late Charges in addition to all payments of principal, interest
 and fees (if any) under the Note, provided, however, that during any time
 that any of the above Late Charges would cause the total interest payable
 under the Note to exceed the applicable maximum lawful rate of interest, then
 the sum of (a) all such Late Charges and (b) the amount of interest payable
 at the Applicable Rate shall automatically be reduced to an amount that shall
 not exceed the amount of interest payable at such maximum rate.

 
	
 H.

 	
 Parties; Counterparts; No Transfer by
 Borrower: If Borrower is more than one Person, all of them shall be jointly and
 severally liable under this Note. This Note and any Rider hereto may be
 executed in counterparts, each of which shall constitute an original, but all
 of which when taken together shall constitute a single instrument. The
 obligations under this Note shall continue in force and shall apply
 notwithstanding any change in the membership of any partnership executing this
 Note, whether arising from the death or retirement of one or more partners or
 the accession of one or more new partners. Without the Bank’s written
 consent, Borrower shall have no right to make any Transfer of any of the
 Liabilities; any such purported Transfer shall be void. Subject to the
 foregoing, the provisions of this Note shall be binding on Borrower’s
 executors, administrators, successors and assigns.

 
	
 I.

 	
 Bank Transfers: (1) Transferability. Without
 limiting the Bank’s rights hereunder, the Bank may make a Transfer of all or
 any part of (a) any obligation of Borrower to the Bank (including but
 not limited to any of the Liabilities), (b) any obligation of any other
 Party in connection with any of the Liabilities, (c) any Agreement of
 any Party in connection with any of the Liabilities, (d) any collateral,
 mortgage, lien or security interest, however denominated, securing any of the
 Liabilities, and/or (e) the Bank’s rights and, if any, obligations with
 respect to any of the foregoing. (2) Extent
 of Transfer. In the event the Bank shall make any Transfer of any
 of the foregoing items (“Transferred Items”), then — to the extent provided
 by the Bank with respect to such Transfer — the Transferee shall have the
 rights, powers, privileges and remedies of the Bank. The Bank shall
 thereafter, to the extent of such Transfer, be forever relieved and fully
 discharged from all liability or responsibility, if any, that it may have to
 any Person with respect thereto, except for claims, if any, arising prior to or
 upon such Transfer. The Bank shall retain all its rights and powers with
 respect to any Transferred Items to the extent that it has not made a
 Transfer thereof. Without limiting the foregoing, to the extent of any such
 Transfer, paragraph B (Indemnification) shall apply to any Taxes,
 Regulatory Costs, Costs and Expenses, and Prepayment Costs of, or incurred
 by, any Transferee, and paragraphs C (Set-Off) and G(1) (Payment-Manner)
 shall apply to any Account of Borrower with any Transferee. (3) Disclosures. The Bank is authorized
 to disclose to any prospective or actual Transferee any information that the
 Bank may have or acquire about Borrower and any information about any other
 Person submitted to the Bank by or on behalf of Borrower. (4) Negotiability Defenses Waived. If this
 Note is not a negotiable instrument, Borrower waives all defenses (except
 such defenses as may be asserted against a holder in due course of a
 negotiable instrument) which Borrower may have or acquire against any
 Transferee who takes this Note, or any complete or partial interest in it,
 for value, in good faith and without notice that it is overdue or has been
 dishonored or of any defense against or claim to it on the part of any
 Person.

 
	
 J.

 	
 No Oral Changes; No Waiver by the Bank;
 Partial Unenforceability: This Note may not be changed orally. Neither a
 waiver by the Bank of any of its options, powers or rights in one or more
 instances, nor any delay on the part of the Bank in exercising any of them,
 nor any partial or single exercise thereof, shall constitute a waiver thereof
 in any other instance. Any provision of this Note which is prohibited,
 unenforceable or not authorized in any jurisdiction shall, as to such
 jurisdiction, be ineffective to the extent of such prohibition, unenforceability
 or nonauthorization, without invalidating the remaining provisions of this
 Note in that or any other jurisdiction and without affecting the validity,
 enforceability or legality of such provision in any other jurisdiction.

 
	
 K.

 	
 Disputes and Litigation: (1) Governing
 Law. This Note and the rights and obligations of the Bank and Borrower
 hereunder shall be governed by the internal laws of the State of New York
 without giving effect to conflict of laws principles. (2) Jurisdiction,
 Venue, and Service of Process. Borrower submits to the
 nonexclusive jurisdiction of the federal and state courts in the State of
 New York in New York County with respect to any dispute arising
 hereunder or relating to any of the Liabilities. Service of process may be
 made on Borrower by personal delivery at, or by mail addressed to, any
 address to which the Bank is authorized to address notices to Borrower. (3) Waiver of
 Defenses, Setoffs, Counterclaims and Certain Damages. Borrower
 waives the right to assert any defense, setoff or counterclaim in any
 proceeding relating in any way to this Note or any transaction contemplated
 hereby. The Bank shall not have any liability for negligence, except solely
 to the extent required by law and not disclaimable, and except for its own
 gross negligence, willful misconduct or criminal conduct. In any event, the
 Bank shall not have any liability for any special, consequential or punitive
 damages. (4) Sovereign Immunity. Borrower irrevocably waives, with
 respect to itself and its property, any sovereign immunity that it may have
 or hereafter acquire, including but not limited to immunity from the
 jurisdiction of any court, from any legal process, from attachment prior to
 judgment, from attachment in aid of execution, from execution or otherwise.

 

 
	
 L.

 	
 OFAC and Patriot Act: Borrower shall: Comply with all Anti-Terrorism Laws;
 immediately to notify the Bank if it obtains knowledge that it or any of its
 Affiliates has become or been listed as a Restricted Party or has been
 charged with or has engaged in any violation of any Anti-Terrorism Law; not
 to receive any funds from a Restricted Party and, in any case, to exclude any
 funds derived from any Restricted Party or from any person or entity involved
 in the violation of any Anti-Terrorism Law from being used to pay debt
 service or any other amounts owing under the Note; not to transfer or permit
 the transfer of any legal or beneficial ownership interest of any kind in
 Borrower to a Restricted Party or any person or entity involved in the
 violation of any Anti-Terrorism Law; not to acquire, directly or indirectly,
 ownership interest of any kind in any Restricted Party or any person or
 entity involved in the violation of any Anti-

 



 









	
  

 	
  

 
	
  

 	
 Terrorism Law, not to form any
 partnership or joint venture or conduct any business with any Restricted
 Party or any person or entity involved in the violation of any Anti-Terrorism
 Law, and not to act, directly or indirectly, as the agent or representative
 of any Restricted Party or any person or entity involved in the violation of
 any Anti-Terrorism Law; and to indemnify the Bank for any costs incurred by
 any of them as a result of any violation of an Anti-Terrorism Law by
 Borrower.

 
	
 M.

 	
 Notice: Any notice in connection with any
 of the Liabilities shall be in writing and may be delivered personally or by
 cable, telex, telecopy or other electronic means of communication, or by
 certified mail, return receipt requested, addressed (a) to Borrower as
 set forth herein or to any other address that the Bank believes to be Borrower’s
 address, and (b) to the Bank at Bank Hapoalim B.M., 1177 Avenue of
 the Americas, New York, New York 10036, Attention: Legal
 Department. Any such notice shall be addressed to such other address (es) as
 may be designated in writing hereafter. All such notices shall be deemed
 given when delivered personally or electronically or when mailed, except
 notice of change of address, which shall be deemed to have been given when
 received.

 
	
 N.

 	
 Definitions: The following definitions apply
 in this Note: (1) Acceleration:
 any acceleration of payment or requirement of prepayment of any Debt, or any
 Debts becoming due and payable prior to stated maturity. (2) Account: (a) the balance of any
 account of Borrower with any Person, and/or (b) any property in the
 possession or custody of, or in transit to, any Person, whether for
 safekeeping, collection, pledge or otherwise, as to which Borrower has any
 right, power or interest — in each case whether existing now or hereafter, in
 any jurisdiction worldwide, and whether or not denominated in the same
 currency as any of the Liabilities. (3)
 Agreement: any agreement or instrument (including but not limited
 to this Note), no matter when made, under which any Party is obligated to any
 Person. (4) Applicable Rate:
 whichever of the Loan Rate or Increased Rate is the applicable interest rate
 at any time. (5) Anti-Terrorism Law:
 any U.S. State or Federal law relating to terrorism, money laundering or any
 related seizure, forfeiture or confiscation of assets, including: (a)
 Executive Order No. 13224 of September 23, 2001 - Blocking Property and
 Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
 Support Terrorism; (b) the Uniting and Strengthening America by Providing
 Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
 (the USA PATRIOT Act), Public Law 107-56; and (c) the Money Laundering
 Control Act of 1986, Public Law 99-570 (6) Bank: Bank Hapoalim B.M. (7) Borrower: the Person(s) executing
 this Note at paragraph 10 or any one or more of them. “Borrower” may
 refer to one or more Persons. (8) Business
 Day: any day on which both (a) banks are regularly open for
 business in New York City and (b) the Office is open for ordinary
 business. In the Bank’s discretion, the Office may be closed on any Saturday,
 Sunday, legal holiday or other day on which it is lawfully permitted to
 close. (9) Control: the power,
 alone or in conjunction with others, directly or indirectly, through voting
 securities, by contract or otherwise, to direct or cause the direction of a
 Person’s management and policies. (10)
 Costs and Expenses: any and all reasonable costs and expenses
 (including but not limited to attorneys’ fees and disbursements) incurred in
 connection with the Borrower and/or the Liabilities, including but not
 limited to those for (a) any action taken, whether or not by litigation,
 to collect, or to protect rights or interests with respect to, or to preserve
 any collateral securing, any of the Liabilities, (b) compliance with any
 legal process or any order or directive of any Governmental Authority with
 respect to any Party, (c) any litigation or administrative proceeding
 relating to any Party, and/or (d) any amendment, modification, extension
 or waiver with respect to any of the Liabilities. (11) Debt: any Party’s obligation of any sort (in whole or
 in part) for the payment of money to any Person, whether (a) absolute or
 contingent, (b) secured or unsecured, (c) joint, several or
 independent, (d) now or hereafter existing, or (e) due or to become
 due. (12) Debtor Relief Action:
 the commencement by any Party or (unless dismissed or terminated within 60
 days) against any Party of any proceeding under any law of any jurisdiction
 (domestic or foreign) relating to bankruptcy, reorganization, insolvency,
 arrangement, composition, receivership, liquidation, dissolution, moratorium
 or other relief of financially distressed debtors, or the making by any Party
 of an assignment for the benefit of creditors. (13) Default: any breach, default or event of default under,
 or any failure to comply with, any provision of any Agreement after giving
 effect to any applicable notice, grace or cure period. (14) Event of Default: any event set
 forth in paragraph D. (15) Exchange
 Control Permit: any permit or license issued by a Governmental
 Authority outside the United States under which any Party is permitted
 (a) to incur and pay any of the Liabilities in the United States in any
 currency(ies) in which denominated or (b) to enter into, incur and/or
 perform any other obligation or Agreement. (15A) Executive Order: Executive
 Order No. 13224 of September 23, 2001 - Blocking Property and Prohibiting
 Transactions With Persons Who Commit, Threaten to Commit, or Support
 Terrorism; (16) Governmental Authority:
 any domestic or foreign, national or local, (a) government,
 (b) governmental, quasi-governmental or regulatory agency or authority,
 (c) court or (d) central bank or other monetary authority. (17) Increased Rate: (a) If the Loan Rate
 is a Variable Prime-Based Rate, the Increased Rate with respect to the entire
 outstanding principal balance shall be the Loan Rate plus 2% per year. (b) If
 the Loan Rate is not a Variable Prime-Based Rate, the Increased Rate with
 respect to any amount of principal or installment shall be (i) the Loan
 Rate plus 2% per year prior to the applicable Payment Date and (ii) the
 Prime Rate plus 4% per year on or subsequent to the applicable Payment Date. (18) Law: any treaty, law, regulation,
 rule, judgment, order, decree, guideline, interpretation or request (whether
 or not having the force of law) issued by any Governmental Authority. (19) Liabilities: (a) any and all of
 the Debt evidenced by this Note, and any and all other Debt of Borrower to,
 or held or to be held by, the Bank in any jurisdiction worldwide for its own
 account or as agent for another or others, whether created directly or
 acquired by Transfer or otherwise, and (b) any and all obligations of
 any other Party with respect to any of such Debt. (20) Loan Rate: the interest rate determined under
 paragraph 2. (21) Material:
 material to the business or financial condition of any Party on a
 consolidated or consolidating basis. (22)
 Office: the Bank’s office at 1177 Avenue of the Americas,
 New York, New York 10036, or such other place as the Bank may
 specify by notice. (23) Party:
 (a) borrower; (b) any maker, co-maker or endorser of any Agreement
 evidencing-, or any guarantor, surety, accommodation party or indemnitor with
 respect to-, or any Person that provides any collateral as security for-, or
 any Person that issues a subordination, comfort letter, standby letter of
 credit, repurchase agreement, put agreement, option, other Agreement or other
 credit support with respect to-, any of the Liabilities; (c) if any Party is
 a partnership or joint venture, any general partner or joint venturer in such
 Party; and (d) any Person (i) that is under the Control of any
 Party and (ii) whose business or financial condition is Material to such
 Party. (24) Payment Date: any
 Business Day on which any part of the principal or any installment of this
 Note becomes due and payable under paragraph 1 (and not on account of an
 Acceleration). (25) Person: any
 person, partnership, joint venture, company, corporation, unincorporated
 organization or association, trust, estate, Governmental Authority, or any
 other entity. (26) Prepaid Principal:
 any amount of principal or any installment of this Note which Borrower pays prior to the
 applicable Payment Date for such amount. (27)
 Prepayment Costs: all losses, costs and expenses incurred as a
 result of receiving Prepaid Principal and of 

 



 









	
  

 	
  

 
	
  

 	
 reinvesting it at rate(s) which may be less than the Applicable Rate
 for such Prepaid Principal. (28) Prime
 Rate: the Bank’s New York Branches’ stated Prime Rate as
 reflected in its books and records as such Prime Rate may change from time to
 time. The Bank’s determination of its Prime Rate shall be conclusive and
 final. The Prime Rate is a reference rate and not necessarily the lowest
 interest rate charged by the Bank. (29)
 Regulatory Costs: any and all costs and expenses of complying with
 any Law, including but not limited to with respect to (a) any reserves or
 special deposits maintained for or with, or pledges to, or assessments,
 insurance premiums or special charges paid to, any Governmental Authority, or
 (b) any capital, capital equivalency ledger account, ratio of assets to
 liabilities, risk-based capital assessment or any other capital substitute,
 risk-based or otherwise. (30) Restricted Party: (a) any
 individual or entity: listed in the Annex to the Executive Order or is
 otherwise subject to the provisions of the Executive Order; (b) listed on the
 “Specially Designated Nationals and Blocked Persons” list maintained by the
 Office of Foreign Assets Control (OFAC) of the United States Department of
 the Treasury, as updated or amended from time to time, or any similar list
 issued by OFAC; or (c) whose property has been blocked, or is subject to
 seizure, forfeiture or confiscation, by any order relating to terrorism or
 money laundering issued by the President, Attorney General, Secretary of
 State, Secretary of Defense, Secretary of the Treasury or any other U.S.
 State or Federal governmental official or entity. (31)Taxes: any and all present and future taxes, levies,
 imposts, deductions, charges and withholdings in any jurisdiction worldwide,
 and all liabilities with respect thereto, which are imposed with respect to
 this Note or to any amount payable under this Note, excluding taxes
 determined on the basis of the income of a Person or of any of its offices. (32) Transfer: any negotiation,
 assignment, participation, conveyance, grant of a security interest, lease,
 delegation, or any other direct or indirect transfer of a complete or
 partial, legal, beneficial, economic or other interest or obligation. (33) Transferee: any Person to whom a
 Transfer is made. (34) Transferred Items:
 items defined in paragraph I. (35)
 Treasury Obligation: a note, bill or bond issued by the United
 States Treasury Department as a full faith and credit general obligation of
 the United States. (36) Variable
 Prime-Based Rate: any Applicable Rate which is determined based on
 the Prime Rate. Any such rate shall change automatically when and as the
 Prime Rate changes.

 



 







TERM OR INSTALLMENT LOAN RIDER TO PROMISSORY
NOTE

LOAN(S) DENOMINATED IN U.S. OR OTHER CURRENCY

LIBOR-BASED RATE 


This Rider is referred to in paragraph 3 of, and constitutes a part of,
a note in the amount of $3,000,000.00
from Borrower to the Bank dated as of February 25, 2013.


	
  

 
	 

 
	
 Specific
 Terms

 
	
  

 
	
 (a) Margin: 3.00%
 per year

 
	
  

 
	
 (b) Interest
 Period: as
 agreed from time to time 

 
	 

 



Borrower
agrees to the above Specific Terms and to all of the Terms and
Conditions set forth below.


Print
Borrower’s Name: ARK RESTAURANTS CORP.


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 (Signature)
 By: 

 	
 /s/ Michael
 Weinstein

 	
  

 	
 (Signature)
 By: 

 	
 /s/ Robert
 J. Stewart

 
	
  

 	 

 	
  

 	
  

 	 

 
	
 Print Name:

 	
 Michael
 Weinstein

 	
  

 	
 Print Name:

 	
 Robert J.
 Stewart

 
	
  

 	 

 	
  

 	
  

 	 

 
	
 Print Title:

 	
 Chairman and
 CEO

 	
  

 	
 Print Title:

 	
 CFO and
 Treasurer

 
	
  

 	 

 	
  

 	
  

 	 

 



Terms and Conditions 


Certain
capitalized terms are defined in paragraph 3.


	
  

 	
  

 	
  

 
	
 1.

 	
 Payment of Principal and Interest. Subject
 to the other provisions of the Note:

 
	
  

 	
  

 
	
  

 	
 (a)

 	
 Obligation, Time and Manner of Payment.
 Subject to the other provisions of the Note and this Rider, the Outstanding
 Principal Amount shall be due and payable at the applicable Payment Date.
 Unless specified otherwise in the Note or in a Rider thereto, every payment
 to be made by or on behalf of the Borrower under the Note shall be made in
 U.S. Dollars, and the designation of U.S. Dollars as the currency of payment
 is of the essence. Every payment or delivery under the Note by or on behalf
 of Borrower of any money denominated in any Currency shall be made at the
 Office and/or to such account or accounts as the Bank may designate from time
 to time by notice to Borrower, in immediately available funds in U.S.
 Dollars, without set off, counterclaim, withholding or deduction of any kind
 whatsoever. Except as otherwise provided herein, any payment due under the
 Note on a day that is not a Business Day shall be payable on the next
 succeeding Business Day.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Loan Rate. Interest on any Outstanding
 Principal Amount shall accrue at the LIBOR-Based Rate; provided, however,
 that if the Bank determines (i) that by the Determination Time (A) by reason
 of circumstances affecting the London Interbank Market generally, adequate
 and fair means do not exist for ascertaining an applicable LIBOR rate or it
 is impractical for the Bank to fund or continue to fund the Outstanding
 Principal Amount during the applicable Interest Period, or (B) quotes for
 funds in the relevant Currency in sufficient amounts comparable to the
 relevant Outstanding Principal Amount and for the duration of the applicable
 Interest Period would not be available to the Bank in the London Interbank
 Market, or (C) quotes for funds in the relevant Currency in the London
 Interbank Market will not accurately reflect the cost to the Bank of making a
 Loan or of funding the relevant Outstanding Principal Amount during the
 applicable Interest Period, or (ii) that at any time the making or funding of
 loans, or charging of interest at rates, based on LIBOR shall be unlawful or
 unenforceable for any reason, then as long as such circumstance(s) shall continue,
 interest on the relevant Outstanding Principal Amount shall accrue at the
 Alternate Rate.

 











	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Payment and Calculation of Interest.
 Interest shall be payable (i) at each Payment Date or (whenever the
 Applicable Rate is a Variable Prime-Based Rate) monthly, (ii) at the Due Date
 and (iii) at any time that any Outstanding Principal Amount or part thereof
 is paid. Interest shall be calculated as set forth in the Note.

 
	
  

 	
  

 	
  

 
	
 2.

 	
 Bank’s Conclusive Determinations and Schedule.
 The Bank’s determination with respect to any matter hereunder shall be
 conclusive, final and binding on Borrower, absent manifest error. The Bank
 shall from time to time record the date and amount of each Loan, the
 Applicable Rate, each date on which any part of principal, interest or any
 other amount shall be due and payable, and the amount and date of each
 payment of principal, interest or any other amount, on a schedule, which in
 the Bank’s discretion may be computer-generated and/or may be taken from the
 Bank’s general books and records, and which schedule is incorporated in, and
 is a part of, the Note and this Rider (the “Schedule”). The Schedule shall be
 conclusive, final and binding upon Borrower, absent manifest error, provided,
 however, that the failure of the Bank to record any of the foregoing
 shall not limit or otherwise affect the obligation of Borrower to pay all
 amounts owed to the Bank under the Note. Without limiting the foregoing,
 Borrower acknowledges that the Interest Period and the Applicable Rate with
 respect to any Outstanding Principal Amount are subject to the Bank’s consent
 ordinarily negotiated between Borrower and the Bank by telephone, and
 Borrower agrees that in the event of any dispute as to any of the terms of
 any Loan, the determination of the Bank and its respective entry with respect
 thereto on its books and records and/or on the Schedule shall be conclusive,
 final and binding on Borrower, absent manifest error.

 
	
  

 	
  

 
	
 3.

 	
 Definitions. Each capitalized term not
 defined herein shall have the meaning ascribed thereto in the Note. The
 following definitions apply in this Rider and in the Note, and shall prevail
 over any different definitions in the Note.

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Alternate Rate: an annual Variable
 Prime-Based Rate equal to the Prime Rate plus the Margin.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Applicable Rate: whichever of the Loan Rate
 or Increased Rate (as defined in the Note) is the applicable interest rate at
 any time with respect to any Outstanding Principal Amount.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Currency: money denominated in the lawful
 currency of any country (including but not limited to the lawful currency of
 the United States) or any unit of account or single or unified currency of
 the European Community.

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 Determination Time: 12:00 noon (or any later
 time determined by the Bank in its sole discretion), New York City time, of a
 Working Day that is three Working Days prior to the date of the Loan.

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 Due Date: the date set forth in paragraph 1
 of the Note or, if the Bank has extended such date pursuant to paragraph G(5)
 of the Note or by an agreement with Borrower, such extended date.

 
	
  

 	
  

 	
  

 
	
  

 	
 (f)

 	
 Interest Period: any term of 1 day, 1 week,
 1 to 3, 6 or 12 months, or such other term as may be acceptable to the Bank
 in its discretion, as set forth above under Specific Terms or if not
 so set forth, as selected or agreed to by the Bank in its discretion. If, by
 Determination Time, should the Borrower not have requested a term for the
 next ensuing Interest Period, the Borrower shall be deemed to have requested
 the next Interest Period to be the same as the Interest Period about to end.
 A term shall not be considered an “Interest Period” during any period that
 the Applicable Rate is a Variable Prime-Based Rate. Each Interest Period
 shall commence immediately at the end of the preceding Interest Period, if
 any. If there had been no immediately preceding Interest Period with respect
 to any Outstanding Principal Amount, the Interest Period shall commence on
 the first Business Day on which (i) such amount shall be outstanding and (ii)
 the Applicable Rate is not a Variable Prime-Based Rate. If any Interest
 Period would otherwise come to an end on a day that is not a Working Day, its
 termination shall be postponed to the next day that is a Working Day unless
 it would thereby terminate in the next calendar month. In such case, such
 Interest Period shall terminate on the immediately preceding Working Day.

 
	
  

 	
  

 	
  

 
	
  

 	
 (g)

 	
 LIBOR for each Interest Period: the rate per
 annum (carried out to the fifth decimal) equal to the rate determined by the
 Bank to be the offered rate on a page or service (whether provided by Bridge
 Telerate, Reuters, Bloomberg or any other service) that displays an average
 British Bankers Association Interest Settlement Rate for deposits in the
 applicable Currency (for delivery on the first Working Day of such

 












	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Interest Period) with a term equivalent to such Interest Period,
 determined as of approximately 11:00 a.m. (London time) two (2) Working Days
 prior to the first Working Day of such Interest Period. At the Borrower’s
 request, the Bank will provide the Borrower with identifying information with
 respect to the page or service so used by the Bank. If the Bank determines
 that the rate referenced in the first sentence of this paragraph is not
 available, then “LIBOR” will mean, as applicable to any Interest Period, the
 rate determined (i) on the basis of the offered rates for deposits in the
 applicable Currency with a term equivalent to such Interest Period, which are
 offered by four major banks selected by the Bank in the London interbank market
 at approximately 11:00 a.m. London time, on the Working Day that is two (2)
 Working Days prior to the first Working Day of such Interest Period; or (ii)
 by applying such other recognized source of London Eurocurrency deposit rates
 as the Bank may determine from time to time. If the Bank determines in its
 sole discretion that LIBOR cannot be determined or does not represent its
 effective cost of maintaining a Loan, then interest shall accrue at the
 effective cost to the Bank to maintain the Loan (as determined by the Bank in
 its sole discretion).

 
	
  

 	
  

 	
  

 
	
  

 	
 (h)

 	
 LIBOR-Based Rate: an annual rate equal to
 LIBOR plus the Margin, as determined by the Bank.

 
	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 Loan: (i) any loan advanced by the Bank to
 Borrower under the Note, (ii) any rollover by the Bank of any such loan that
 is otherwise due and payable, or (iii) any conversion of the Applicable Rate
 for any Outstanding Principal Amount from a rate that is a Variable
 Prime-Based Rate to one that is not, or vice versa.

 
	
  

 	
  

 	
  

 
	
  

 	
 (j)

 	
 Loan Rate: the interest rate determined
 under subparagraph 1(b).

 
	
  

 	
  

 	
  

 
	
  

 	
 (k)

 	
 Margin: as set forth under Specific Terms
 or, if not so set forth, 2% per year.

 
	
  

 	
  

 	
  

 
	
  

 	
 (l)

 	
 Note: the note of which this Rider is a part
 (including any and all riders and amendments to the Note).

 
	
  

 	
  

 	
  

 
	
  

 	
 (m)

 	
 Outstanding Principal Amount: the
 outstanding principal amount of each Loan.

 
	
  

 	
  

 	
  

 
	
  

 	
 (n)

 	
 Payment Date: the last Business Day of the
 applicable Interest Period or, if the applicable Loan Rate is a Variable
 Prime-Based Rate, the Due Date.

 
	
  

 	
  

 	
  

 
	
  

 	
 (o)

 	
 Working Day: a Business Day on which banks
 are regularly open for business in London.