Exhibit 10.42
U.S. $100,000.00 January 18, 2002
Tampa, Florida
SECURED PROMISSORY NOTE
Capitalized terms used but not defined herein shall have the
meaning set forth in that certain letter agreement (the "Letter Agreement"),
dated as of April 17, 2001, by and among Best Que, LLC ("Best Que"), Shells
Seafood Restaurants, Inc. ("Shells"), Famous Xxxx's Ribs, Inc. ("Famous Xxxx's")
and The Lark Group LLC ("Lark"), a copy of which is attached hereto as
Exhibit A.
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The undersigned Xxxxxxx X. Xxxxxx, XX, individually
("Sloane"), is a managing member of Lark and pursuant to that certain guaranty
("Guaranty") dated as of July , 2001 (sic) Lark guaranteed to Shells the
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obligations of Best Que under (a) the Letter Agreement, (b) the Notes and (c)
the License Agreement. In order to induce Shells to execute a certain Assignment
and Assumption of Lease with respect to the Xxxxxxxx Restaurant which was
previously executed on behalf of Famous Xxxx's and delivered to Shells for
execution, the undersigned Xxxxxx and Best Que (collectively, "Borrower"), both
with an address at 000 Xxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 00000, have agreed
to execute and deliver to Shells this Promissory Note as evidence of the payment
for the FFE owned by Xxxxxx located at the Xxxxxxxx Restaurant and the
Middletown Restaurant.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, Borrower, jointly and severally, hereby
unconditionally promise to pay to the order of Shells Seafood Restaurants, Inc.,
its successors or assigns (hereinafter collectively referred to as the
"Holder"), the principal sum of One Hundred Thousand and no/100s Dollars
$100,000.00 (U.S.), together with any due and unpaid interest on the unpaid
principal amount hereof pursuant to Paragraph 2 below, on or before June 18,
2002 (the "Maturity Date).
This Note shall bear interest on the unpaid principal amount
hereof from time to time outstanding at a rate per annum equal to ten percent
per annum (10%), and interest shall be compounded monthly and computed on the
basis of the actual number of days elapsed on the basis of a 360-day year.
Interest shall begin to accrue on the Maturity Date if the principal amount
hereof is not paid in full on such date. In addition, if this Promissory Note is
not paid in full on or prior to the Maturity Date, Borrower shall pay to Holder
a late fee equal to five percent (5%) of the unpaid amount.
1. Optional Prepayment. The Borrower shall have the right to
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prepay the principal amount of this Promissory Note, in whole or in part,
without penalty or premium, at any time and from time to time without penalty.
2. Remedies. No right or remedy herein conferred upon the
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Holder is intended to be exclusive of any other right or remedy contained
herein, and every such right or remedy shall be cumulative and shall be in
addition to every other such right or remedy contained herein or now or
hereafter existing at law or in equity or by statute, or otherwise. The Holder's
remedies under this Note shall include, without limitation, a right to set off
all amounts which are due and owing to the Holder hereunder against amounts due
and owing to either Xxxxxxxx, regardless of the source of such indebtedness.
3. Course of Dealing; Waiver. The liability of Borrower
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hereunder shall be unconditional and shall not be in any manner affected by any
indulgence whatsoever granted or consented to by the Holder, including but not
limited to any extension of time, renewal, waiver or other modification. No
course of dealing between Xxxxxxxx and the Holder or any failure or delay on the
part of the Holder in exercising any of its rights or remedies hereunder shall
operate as a waiver or preclude the exercise of any other rights or remedies
hereunder. The failure of the Holder to insist, in any one or more instances, on
performance of any of the terms and conditions of this Promissory Note shall not
be construed as a waiver or relinquishment of any rights granted hereunder or of
the future performance of any such terms, covenants or conditions but the
obligation of the undersigned with respect thereto shall continue to be in full
force and effect.
4. Successors or Assigns. This Promissory Note, and the
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obligations and rights hereunder, shall be binding upon and inure to the benefit
of Xxxxxxxx and each Borrower's respective heirs, executors, administrators, and
permitted successors and assigns, however, Borrower may not assign, transfer or
delegate any of Borrower's rights or obligations hereunder, directly,
indirectly, by operation of law or otherwise, without the prior written consent
of the Holder. The Holder shall have the right to assign or transfer this
Promissory Note or any of the Holder's rights or obligations hereunder in whole
or in part at any time and from time to time without the consent of Borrower and
this Promissory Note shall be binding upon and inure to the benefit of Holder
and its successors and assigns.
5. Waiver of Presentment. Without limiting the express
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provisions of this Promissory Note, Borrower hereby waives presentment, notice
of dishonor, protest, and notice of protest, and any or all other notices or
demands in connection with the delivery, acceptance, performance and collection
of this instrument, all of which are hereby waived by Borrower to the fullest
extent permitted by law.
6. Payment. All payments of principal and interest hereunder
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shall be made in lawful money of the United States of America in immediately
available funds to the Holder hereof at the address the following address: 00000
Xxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, or to such other party and/or
address as Holder may hereafter designate by notice to Borrower.
7. Collection. Xxxxxxxx agrees to pay on demand all costs of
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collection, including but not limited to reasonable attorneys' fees and
disbursements, which may be incurred in the collection of this Promissory Note
or any portion hereof or the enforcement of any rights of the Holder hereunder.
The amount of such costs shall be added to the principal amount of this
Promissory Note if not paid by Borrower on demand and Borrower shall pay
interest to Holder thereon at the rate set forth in this Promissory Note.
8. Notices. All notices, requests and other communication
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required or desired to be sent or given under this Promissory Note by the
Borrower or the Holder shall in every case be in writing and shall be deemed
properly served if (i) delivered personally, with receipt acknowledged, (ii)
delivered by Registered or Certified United States mail with first class postage
prepaid, return receipt requested, or (iii) delivered by reputable overnight
courier regularly maintaining a record of receipt, if to Borrower, to Xx.
Xxxxxxx X. Xxxxxx, XX at Xxxxxxxx's address set forth above, and if to the
Holder, to Mr. Xxxxxx Xxxxxx at Shells Seafood Restaurants, Inc., 00000 Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, or to such other addresses
within the United States of America as the recipient party has specified by
prior written notice to the sending party. Notice sent by personal delivery or
overnight courier shall be deemed delivered upon receipt or the day delivery is
first attempted if delivery is refused or unable to be made due to no fault of
the sender, and if sent by registered or certified mail, shall be deemed
delivered three (3) days after depositing the same in the United States mail in
the manner aforesaid.
9. Governing Law. This Promissory Note has been entered into
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and shall be construed and enforced in accordance with, and shall be governed
by, the laws of the State of Florida, without giving effect to provisions
thereof regarding conflict of laws.
10. Waiver. BORROWER HEREBY, KNOWINGLY, VOLUNTARILY,
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INTENTIONALLY, EXPRESSLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY
SUIT, ACTION OR PROCEEDING BROUGHT BY XXXXXX BASED UPON, ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS PROMISSORY NOTE ANY AND EVERY RIGHT BORROWER MAY HAVE
TO (I) INJUNCTIVE RELIEF (OTHER THAN INJUNCTIVE RELIEF GRANTED IN CONNECTION
WITH ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT BY HOLDER ON THIS PROMISSORY
NOTE), (II) A TRIAL BY JURY, (III) INTERPOSE ANY COUNTERCLAIM THEREIN (OTHER
THAN A COUNTERCLAIM BROUGHT BY PAYEE UNDER THIS PROMISSORY NOTE THAT CANNOT BE
MAINTAINED IN ANY SEPARATE ACTION), AND (IV) HAVE THE SAME CONSOLIDATED WITH ANY
OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING HEREIN CONTAINED SHALL
PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION
AGAINST HOLDER WITH RESPECT TO ANY ASSERTED CLAIM. BORROWER ACKNOWLEDGES THAT
THE AFORESAID WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR HOLDER TO ACCEPT THIS
PROMISSORY NOTE.
11. Usury. This Promissory Note is subject to the express
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condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance due under this Promissory Note at a rate which
could subject Holder to either civil or criminal liability as a result of being
in excess of the maximum interest rate which Borrower is permitted by law to
contract or agree
to pay. If by the terms of this Promissory Note, Borrower is at any time
required or obligated to pay interest on the principal balance due under this
Promissory Note at a rate in excess of such maximum rate, the rate of interest
under this Promissory Note shall be deemed to be immediately reduced to such
maximum rate and such excess payments shall be applied by Holder in reduction of
the outstanding principal balance of this Promissory Note.
12. Authority. Borrower (and the undersigned representative of
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Borrower, if any), represents that Borrower has full power, authority and legal
right to execute and deliver this Promissory Note and that the debt evidenced
hereby constitutes a valid and binding obligation of Borrower.
13. Waiver. Borrower hereby irrevocably submits to the
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non-exclusive jurisdiction of any State of Florida or Federal court sitting in
the City of Tampa, Florida over any suit, action or proceeding arising out of or
relating to this Promissory Note, with venue to be in the City of Tampa,
Florida, and Borrower hereby agrees and consents that, (i) without limiting
other methods of obtaining jurisdiction, personal jurisdiction over Borrower in
any such action or proceeding may be obtained within or without the jurisdiction
of any court located in Florida and (ii) in addition to any methods of service
of process or notice of motion or other application provided for under
applicable law, all service of process in any such suit, action or proceeding in
any Florida State or Federal court sitting in the City of Tampa, Florida may be
made by certified mail, return receipt requested, directed to Borrower or by
personal service at the last known address of Borrower, whether such address be
within or without the jurisdiction of any such court.
14. Security. This Promissory Note is secured by a security
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agreement of even date herewith ("Security Agreement"), which Security Agreement
is a lien upon the FFE located at the Middletown Restaurant, as more
particularly described in the Security Agreement.
15. Old Notes. This Promissory Note supersedes and replaces
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the two (2) original Notes (as defined in the Letter Agreement) in the amounts
of $50,000.00 each previously executed by Best Que in favor of Shells with
respect to the FFE located in the Xxxxxxxx Restaurant and the Middletown
Restaurant.
By: /S/ Xxxxxxx X. Xxxxxx, XX
Xxxxxxx X. Xxxxxx, XX, individually
BEST QUE, LLC
By: /S/ Xxxxxxx X. Xxxxxx, XX
Xxxxxxx X. Xxxxxx, XX
Title: Manager
