EXHIBIT 10.13
PROMISSORY NOTE
$187,490.00 September 29, 2000
FOR VALUE RECEIVED, CHRISTIAN DE BERDOUARE, hereinafter referred
to as the "Borrower"), promises to pay to the order of CHICKEN KITCHEN
CORPORATION (hereinafter referred to as the "Lender") on or before the Maturity
Date, the principal sum of One Hundred Eighty-Seven Thousand Four Hundred Ninty
Dollars ($187,490.00), or so much thereof as may be advanced from time to time,
with interest on the unpaid balance of such amount from the date of such advance
at the rate of interest and in the manner specified herein. This Note evidences
a loan (the "Loan") made by Lender to Borrower in the principal amount hereof.
1. Certain Defined Terms: In addition to the terms defined
elsewhere in this Note, as used herein, the following terms shall have the
following meanings:
(a) "Interest Rate" shall mean the rate of ten percent
(10%) per annum.
(b) "Maturity Date" shall mean September 31, 2003.
2. Payment and Calculation of Interest and Payment of
Principal Balance:
(a) Interest. From and after the date hereof, through and
including the day on which this Note is paid in full, interest shall accrue for
the preceding month on the daily outstanding principal balance of this Note at
the Interest Rate.
(b) Calculation of Interest. Interest shall be computed
on the basis of fraction, the denominator of which shall be 360 and the
numerator of which shall be the actual number of days elapsed from the date of
the initial advance hereunder or the date of any subsequent advance hereunder,
as the case may be, to the Maturity Date (i.e. interest for each day any
principal is outstanding shall be computed at the annual interest rate divided
by 360).
(c) Payment of Note. Interest shall be paid on December
31st each year for the preceding year. The principal amount of the note shall be
due and payable on the Maturity Date.
3. Prepayment Penalty: There shall be no penalty associated with
early payment of the obligations hereunder.
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4. Expenses and Costs of Collection:
(a) Borrower shall pay for all costs and expenses
(including, without limitation, documentary stamp taxes, intangible personal
property taxes and reasonable attorneys' fees and disbursements) incurred by
Borrower and Lender in connection with the preparation, execution and delivery
of this Note.
(b) Borrower agrees to pay all reasonable costs and
expenses of collection incurred by Lender, in addition to principal, interest
and late or delinquency charges (including, principal, without limitation, court
costs and reasonable attorneys' fees and paralegal fees and disbursements
through and including any appellate proceedings at all levels, and any special
proceedings) and including all reasonable costs and expenses incurred in
connection with the pursuit by Lender of any of its rights or remedies referred
to herein.
5. Interest Not To Exceed Maximum Permitted By Law: It is the
intention of the parties to conform strictly to the usury and other laws
relating to interest from time to time in force, and all agreements between
Borrower and Lender, whether now existing or hereafter arising and whether oral
or written, are hereby expressly limited so that in no contingency or event
whatsoever, whether by acceleration of maturity hereof or otherwise, shall the
amount paid or agreed to be paid to Lender, or collected by Lender or for the
use, forbearance or detention of the money to be loaned hereunder or otherwise,
or for the payment or performance of any covenant or obligation contained
herein, exceed the maximum amount permissible under applicable usury or such
other laws (the "Maximum Amount"). If under any circumstances whatsoever,
fulfillment of any provision hereof shall involve transcending the Maximum
Amount, then ipso facto, the obligation to be fulfilled shall be reduced to the
Maximum Amount. For the purposes of calculating the actual amount of interest
paid and/or payable hereunder, in respect of laws pertaining to usury or such
other laws, all sums paid or agreed to be paid to the holder hereof for the use,
forbearance or detention of the indebtedness of Borrower evidenced hereby,
outstanding from time to time shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread from the date of disbursement of
the proceeds of this Note until payment in full of all of such indebtedness, so
that the actual rate of interest on account of such indebtedness is uniform
through the term hereof. The terms and provisions of this Paragraph 6 and
Paragraph 7 hereof shall control and supersede every other provision of all
agreements between Borrower or any endorser and Lender.
6. Payment in Excess of Maximum Amount: If under any
circumstances Lender shall ever receive an amount deemed interest by applicable
law, which would exceed the Maximum Amount, such amount that would be excessive
interest under applicable usury laws or such other laws shall be deemed a
payment in reduction of the principal amount owing hereunder and shall be so
applied and not to the payment of interest, or, if such excessive interest
exceeds the unpaid balance of principal of this Note, the excess shall be deemed
to have been a payment made by mistake and shall be refunded to Borrower or to
any other person making such payment on Borrower's behalf.
7. Security: This Note and the obligations arising hereunder
shall be secured by one million (1,000,000) shares of Borrower's Class A Common
Stock in Chicken Kitchen Corporation (the "Stock"), which Stock shall be
delivered to and held in escrow by a
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law firm whose attorneys are licensed to practice law in the State of Florida.
Upon timely repayment of this Note, the Stock shall be returned promptly to
Borrower. At all times, Borrower shall retain all rights appurtenant to the
ownership of the Stock, including the right to vote and receive all dividends
associated with the Stock.
8. Governing Law: This Note and the obligations arising hereunder
shall be governed by the laws of the State of Florida, without regard to the
principles of the conflicts of law.
9. Time of Essence: Time is of the essence of this Note and of
each provision in which time is an element.
10. Date of Performance: If the date for the performance of any
term, provision or condition (monetary or otherwise) under this Note shall
happen to fall on a Saturday, Sunday or non-Business Day (hereinafter defined),
the date for the performance of such term, provision or condition shall, be
extended to the next succeeding Business Day immediately thereafter occurring,
with interest on the outstanding principal sum at the Interest Rate provided in
this Note to such next succeeding Business Day if such term, provision or
condition shall result in the extension of any monetary payment due to Lender.
As used herein, "Business Day" shall mean any day of the year on which
commercial banks are not required or authorized to close in Miami, Florida.
11. Binding upon Successors and Assigns: The provisions of this
Note shall bind Borrower and its successors and assigns.
12. Disclaimer: This Note is intended solely for the benefit of
Borrower and Lender and no third party shall have any rights or interest in any
provision hereof or as a result of any action or inaction of Lender in
connection therewith. Without limiting the generality of the foregoing, any and
all obligations to make advances are imposed solely and exclusively for the
benefit of Borrower and no other person (including, but not limited to,
Borrower's successors or assigns, any creditor of Borrower or any representative
of Borrower) shall have standing to require satisfaction and compliance with
such obligations. Any actions taken by Lender or any representative of Lender
are solely for Lender's protection and neither the Borrower nor any other person
shall be entitled to rely upon any such action.
13. Prior Agreements: This Note supersedes and cancels all prior
agreements and understandings, whether oral or written, with respect to the
Loan, and all prior agreements and understandings are merged into this Note.
14. Headings: The headings used in this Note are for convenient
reference only and shall not to any extent have the effect of modifying,
amending or changing the express terms and provisions of this Note.
15. Severability: Wherever possible, each provision of this Note
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited by or
invalid under such law, such provision shall be ineffective
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to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision of the remaining provisions of this Note.
16. Number and Gender: Whenever the singular or plural number, or
the masculine, feminine or neuter gender is used herein, it shall legally
include the other.
17. WAIVER OF JURY TRIAL: BORROWER HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY OR ANY EXERCISE
BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THIS NOTE (INCLUDING, WITHOUT
LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS NOTE, AND ANY CLAIM OR DEFENSE
ASSERTING THAT THIS NOTE WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE); THIS WAIVER BEING A MATERIAL INDUCEMENT FOR LENDER TO ACCEPT THIS
NOTE
IN WITNESS WHEREOF, Borrower has executed this instrument by its duly
authorized officer or signatory on the date first above written.
/s/ Christian de Berdouare
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Christian de Berdouare
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