EXHIBIT 10.02


PROMISSORY NOTE


	
  

 	
  

 
	
 $2,125,000

 	
 December 9, 2011



 


                    FOR
VALUE RECEIVED, Ark Restaurants Corp., a New York corporation
(“Company”), hereby promises to pay to the order of the Estate of Irving Hershkowitz
(“Payee”), having an address at c/o Big Geyser Inc., 57-65 48th
Street, Maspeth, New York 11378, or at such other address as may be designated
from time to time hereafter by the Payee, the principal sum of Two Million One Hundred Twenty Five
Thousand Dollars ($2,125,000) (the “Principal Amount”)
together with interest on the outstanding principal balance hereof from the
date hereof until payment in full of this Note, at the Interest Rate shown
below, payable in lawful money of the United States of America and in
immediately available funds, as set forth herein. This Note is being issued by
the Company in connection with its purchase of 250,000 shares of the Company’s
common stock held by the Payee pursuant to that certain Securities Purchase
Agreement of even date herewith (the “Purchase Agreement”). 



	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 Payment. The Principal Amount outstanding
 under this promissory note (this “Note”) shall be due and payable in
 installments as set forth in Exhibit A herein (the date of the last payment
 hereunder being the “Maturity Date”). Notwithstanding the foregoing,
 in the event that the Closing (as defined in the Purchase Agreement) occurs
 after December 1, 2012, then the initial installment of this Note set forth
 in Exhibit A, together with any other installment due and payable prior to
 the date of the Closing, shall be due and payable on the date of the Closing.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 Interest Rate. The interest rate on the
 outstanding Principal Amount shall be Nineteen One-Hundredths Percent (0.19%)
 per annum, payable on each installment payment date as set forth in Exhibit
 A. 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 3.

 	
 Prepayment. This Note may be prepaid in
 whole or in part at any time without penalty or premium but with accrued
 interest to the date of payment on the principal amount prepaid. Partial
 prepayments shall be applied to the installments hereunder in the inverse
 order of their maturities.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 4.

 	
 Omitted.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 5.

 	
 Events of Default. In the event that any of
 the following (each, an “Event of Default”)
 shall occur: 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 a.

 	
 Non-Payment. The Company shall fail to make
 a payment of the Principal Amount or interest on this Note when due and such
 failure shall continue unremedied for a period of ten (10) days after written
 notice from Payee; or 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 b.

 	
 Obligations. The Company fails to comply
 with any of its other obligations under this Note and such default shall
 continue unremedied for a period of thirty (30) days after written notice
 from Payee; or 

 













	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 c.

 	
 Bankruptcy. The Company, pursuant to or
 within the meaning of any Bankruptcy Law (as hereinafter defined): (i)
 commences a voluntary case; (ii) becomes subject to an involuntary case which
 is not withdrawn, discharged or stayed within sixty (60) days after the
 commencement thereof; (iii) consents to the appointment of a Custodian (as
 hereinafter defined) for Company or for all or substantially all of Company’s
 property; (iv) becomes subject to the appointment of a Custodian for Company
 or for all or substantially all of Company’s property which appointment is
 not withdrawn, discharged or stayed within sixty (60) days after the
 appointment thereof; or (v) makes a general assignment for the benefit of
 Company’s creditors. As used in this Note, the term “Bankruptcy Law” means
 Title 7, Title 11 or Title 13 of the United States Code or any similar federal
 or state law for the relief of debtors, and the term “Custodian” means any
 receiver, trustee, assignee, liquidator or similar official under any
 Bankruptcy Law;

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 then, and so long as such Event of Default is continuing, by written
 notice to the Company, except that no notice or declaration shall be required
 upon the occurrence of an event set forth in Section 5c above: Payee may
 declare that all obligations of the Company under this Note be immediately
 due and payable, in which case all obligations of the Company under this Note
 shall automatically become immediately due and payable (without the necessity
 of any notice or other demand to the Company) without presentment, demand,
 protest or any other action nor obligation of the Payee of any kind, all of
 which are hereby expressly waived, and Payee may exercise any other remedies
 the Payee may have at law or in equity.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 6.

 	
 Affirmative Covenants of the Company. The
 Company hereby agrees that, so long as the Note remains outstanding and unpaid,
 or any other amount is owing to the Payee hereunder, the Company will:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 a.

 	
 Corporate Existence and Qualification. Take
 the necessary steps to preserve its corporate existence and its right to
 conduct business in all states in which the nature of its business requires
 qualification to do business. 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 b.

 	
 SEC Filings. Prepare and file all periodic
 reports required to be filed with the Securities and Exchange Commission
 pursuant to the Securities Exchange Act of 1934, as amended. 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 c.

 	
 Compliance with Law. Comply with the charter
 and bylaws or other organizational or governing documents of the Company, 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 the Company or any of its property or to which each the Company or any
 of its property is subject. 

 


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 d.

 	
 Taxes. Duly pay and discharge all taxes or
 other claims, which might become a lien upon any of its property except to
 the extent that any thereof are being in good faith appropriately contested
 with adequate reserves provided therefor.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 7.

 	
 Amendments and Waivers. Any provision of
 this Note, including, without limitation, the due date hereof, and the
 observance of any term hereof, may be amended, waived or modified (either
 generally or in a particular instance and either retroactively or
 prospectively) only with the written consent of the Company and the Payee.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 8.

 	
 No Waiver; Remedies. No failure on the part
 of Payee to exercise, and no delay in exercising, any right hereunder shall
 operate as a waiver thereof, nor shall any single or partial exercise of any
 right hereunder preclude any other or further exercise thereof or the
 exercise of any other right. The remedies herein provided are cumulative and
 not exclusive of any remedies provided by law.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 9.

 	
 Partial Invalidity. If any provision hereof
 is, for any reason and to any extent, determined by a court of competent
 jurisdiction to be invalid or unenforceable with respect to any person,
 entity or circumstance, then neither the remainder of this Note, nor the
 application of the provision to other persons, entities, or circumstances,
 shall be affected thereby, but instead shall be enforceable to the maximum
 extent permitted by law. 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 10.

 	
 Binding Effect; Assignability. This Note
 shall be binding upon Company and its successors and shall inure to the
 benefit of Payee and its successors and assigns. The term “Payee” as used
 herein, shall also include any endorsee, assignee or other Payee of this
 Note. 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 11.

 	
 Governing Law; Choice of Forum. This Note
 and the rights and obligations of Company and Payee hereunder shall be
 governed by and construed in accordance with the laws of the State of New York
 without giving effect to the conflicts of law principles thereof. Company
 hereby consents to the exclusive jurisdiction of any state or federal court
 located within the County of New York, State of New York. Company waives any
 objection of forum non conveniens and venue.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 12.

 	
 Waiver of Jury Trial. COMPANY KNOWINGLY, IRREVOCABLY, VOLUNTARILY
 AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
 OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS NOTE, OR ARISING OUT
 OF, UNDER OR IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE
 OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
 THERETO. 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 13.

 	
 Lost or Stolen Promissory Note. If this Note
 is lost, stolen, mutilated or otherwise destroyed, Company shall execute and
 deliver to Payee a new promissory note containing the same terms, and in the
 same form, as this Note. In such event, Company may require Payee to deliver
 to Company an affidavit of lost instrument 

 


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 and customary indemnity in respect thereof as a condition to the
 delivery of any such new promissory note.

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 14.

 	
 Notice. All notices under this Note shall be
 in writing and shall be deemed given (i) when delivered personally, (ii) on
 the second business day after being mailed by certified or registered mail,
 return receipt requested, (iii) the next business day after delivery to a
 recognized overnight courier, or (iv) upon transmission and confirmation of
 receipt by a facsimile operator if sent by facsimile, to the parties at the
 following addresses or facsimile numbers (or to such other address or
 facsimile number as such party may have specified by notice given to the
 other party pursuant to this provision): 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 If
 to Company:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Ark
 Restaurants Corp. 

 
	
  

 	
  

 	
 85
 Fifth Avenue

 
	
  

 	
  

 	
 New
 York, New York 10003

 
	
  

 	
  

 	
 Attn:
 Chief Financial Officer

 
	
  

 	
  

 	
 Telecopy:
 (212) 206-8814

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 With
 a copy to:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Ellenoff
 Grossman & Schole LLP

 
	
  

 	
  

 	
 150
 East 42nd Street, 11th Floor

 
	
  

 	
  

 	
 New
 York, New York 10017

 
	
  

 	
  

 	
 Attn:
 Geoffrey W. Parnass, Esq.

 
	
  

 	
  

 	
 Telecopy:
 (212) 370-7889

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 If
 to Payee:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Estate
 of Irving Hershkowitz

 
	
  

 	
  

 	
 c/o
 Big Geyser Inc.

 
	
  

 	
  

 	
 57-65
 48th Street

 
	
  

 	
  

 	
 Maspeth,
 New York 11378

 
	
  

 	
  

 	
 Attn:
 Lewis Hershkowitz, Executor

 
	
  

 	
  

 	
 Telecopy:
 (718) 821-7676 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 With
 a copy to:

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Meltzer,
 Lippe, Goldstein & Breitstone, LLP

 
	
  

 	
  

 	
 190
 Willis Avenue

 
	
  

 	
  

 	
 Mineola,
 New York 11501

 
	
  

 	
  

 	
 Attn:
 Ira R. Halperin, Esq.

 
	
  

 	
  

 	
 Telecopy:
 (516) 747-0653

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 15.

 	
 Headings. Section headings in this Note are
 for convenience only, and shall not be used in the construction of this Note.
 

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 [SIGNATURE PAGE FOLLOWS]

 


4





                    IN
WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered
in favor of Payee as of the date first set forth above.


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ARK RESTAURANTS CORP.



 
	
  

 	
 By:

 	
 /s/ Robert
 J. Stewart

 
	
  

 	
  

 	 

 
	
  

 	
  

 	
 Name:

 	
 Robert J.
 Stewart

 
	
  

 	
  

 	
  

 	 

 
	
  

 	
  

 	
 Title:

 	
 Chief
 Financial Officer

 
	
  

 	
  

 	
  

 	 

 


5





EXHIBIT A


Payment Schedule


	
  

 	
  

 
	
 Payment Date

 	
 Payment

 Amount

 
	
  

 	
  

 
	
 12/1/2012

 	
 $88,541.67

 
	
 1/1/2013

 	
 $88,541.67

 
	
 2/1/2013

 	
 $88,541.67

 
	
 3/1/2013

 	
 $88,541.67

 
	
 4/1/2013

 	
 $88,541.67

 
	
 5/1/2013

 	
 $88,541.67

 
	
 6/1/2013

 	
 $88,541.67

 
	
 7/1/2013

 	
 $88,541.67

 
	
 8/1/2013

 	
 $88,541.67

 
	
 9/1/2013

 	
 $88,541.67

 
	
 10/1/2013

 	
 $88,541.67

 
	
 11/1/2013

 	
 $88,541.67

 
	
 12/1/2013

 	
 $88,541.67

 
	
 1/1/2014

 	
 $88,541.67

 
	
 2/1/2014

 	
 $88,541.67

 
	
 3/1/2014

 	
 $88,541.67

 
	
 4/1/2014

 	
 $88,541.67

 
	
 5/1/2014

 	
 $88,541.67

 
	
 6/1/2014

 	
 $88,541.67

 
	
 7/1/2014

 	
 $88,541.67

 
	
 8/1/2014

 	
 $88,541.67

 
	
 9/1/2014

 	
 $88,541.67

 
	
 10/1/2014

 	
 $88,541.67

 
	
 11/1/2014

 	
 $88,541.59

 
	
  

 	
  

 
	
 Total:

 	
 $2,125,000.00

 
	
  

 	 

 


6