EXHIBIT 10.01
THIS NOTE IS BEING ISSUED IN REPLACEMENT OF THAT CERTAIN NOTE DATED
JANUARY 31, 2002, IN THE ORIGINAL PRINCIPAL AMOUNT THAT WAS ISSUED TO
BANYON INVESTMENT, LLC AND THAT HAS BEEN ASSIGNED TO XXXXXXXXX X.
XXXXX.
SHELLS SEAFOOD RESTAURANTS, INC.
SECURED SENIOR NOTE
Note No. A-3
$1,000,000 April 12,2004
FOR VALUE RECEIVED, each of the undersigned Borrowers, parties
to that certain Securities Purchase Agreement, dated January 31,
2002, among the Borrowers and the Purchasers identified on the
signature pages thereto (as amended, restated, supplemented or
otherwise modified from time to time, the "Purchase Agreement"),
hereby promise to pay, jointly and severally, to Xxxxxxxxx X. Xxxxx,
individually, or registered assigns (the "Holder'), the principal
amount of One Million Dollars ($1,000,000), with interest (computed
on the basis of a 365-day year for actual days elapsed), payable
monthly in arrears on the first day of each calendar month, on the
unpaid principal balance hereof at the rate of eight percent (8.0%)
per annum from and including the date hereof until the entire
principal balance hereof and all interest accrued hereunder is paid
in full. This Note shall bear additional interest (computed on the
basis of a 365-day year for actual days elapsed) accruing monthly and
payable on the Maturity Date on the unpaid principal balance hereof
at the rate of seven percent (7%) per annum (the "Deferred Interest
Rate") from and including the date hereof until the entire principal
balance hereof and all interest accrued hereunder is paid in full.
This Note is one of a series of Notes issued pursuant to, and
payable in accordance with the Purchase Agreement, and this Note is
subject to the terms and conditions and entitled to the equal and
ratable benefits thereof. Reference hereby is made to the Purchase
Agreement for a statement of each of such terms and conditions, and
each of the terms and conditions of the Purchase Agreement are
incorporated herein by this reference. Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to
them in the Purcahse Agreement.
The principal amount of this Subordinated Note shall mature no
later than January 31, 2005 (the "Maturity Date").
Any payment of interest or premium that is not paid when due
hereunder shall be added to the principal balance hereof and
thereafter shall accrue interest at the rate applicable hereunder.
From and after the occurrence of an Event of Default under Section 10
of the Purchase Agreement, and during the continuance thereof, all
principal, interest, or other amounts evidenced by or due under this
Subordinated Note (other than Deferred Interest) shall bear interest
at a rate 4 percentage points (that is, 400 basis point) higher than
the rate otherwise applicable thereto.
Payment of both principal and interest are to be made in lawful
money of the United States of America at such place as the Holder
hereof shall designate to the Administrative Borrower in writing or
as otherwise may be designated by the Holder. Any payments due
hereunder that fall due on a day that is not a Business Day shall be
payable on the first succeeding Business Day and such extension of
time shall be included in the computation of interest due hereunder.
This Note and the indebtedness evidenced hereby is secured by
and entitled to the benefits of the Security Agreement dated January
31, 2002 among each of the undersigned Borrowers and Purchasers.
In case an Event of Default shall occur and be continuing, the
principal of this Note may be declared or otherwise become due and
payable in the manner and with the effect provided in the Purchase
Agreement.
Each of the undersigned borrowers hereby expressly waive notice
of default, notice of dishonor, demand, presentment and protest
hereof, and all other notices or formalities to which such Borrowers
might otherwise be entitled absent this express waiver.
If any term, provision, condition or other portion of this Note
is determined to be invalid, void or unenforceable by a forum of
competent jurisdiction, the same shall not affect any other term,
provision, condition or other portion hereof, and the remainder of
this Note shall remain in full force and effect, as if such invalid,
void or unenforceable term, provision, condition or other portion of
this Note did not appear herein.
This Note shall be deemed to be a contract made under the laws
of the State of Florida and for all purposes shall be governed by,
construed under, and enforced in accordance with the laws of the
State of Florida.
SHELLS SEAFOOD RESTAURANTS, INC.
a Delaware corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF MELBOURNE, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF COUNTRYSIDE SQUARE, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF STUART, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF ST. XXXX BEACH, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF NEW SMYRNA BEACH, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF FORT XXXXX, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF KISSIMMEE, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF ORLANDO, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS ON THE BEACH, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF CASSELBERRY, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF XXXXXX BEACH, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
AMERICA'S FAVORITE SEAFOOD, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF XXXXXXX, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF 4TH STREET, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF DADE, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF BROWARD, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
SHELLS OF ALTAMONTE SPRINGS, INC.,
a Florida corporation
By: /S/ Xxxxxx X. Xxxxxx
Chief Financial Officer
NOTICE TO FLORIDA RESIDENTS:
_______________________________________________________
WHERE SALES ARE MADE TO FIVE OR MORE PERSONS IN FLORIDA (EXCLUDING
CERTAIN INSTITUTIONAL PURCHASERS DESCRIBED IN SECTION 517.061(7) OF
THE FLORIDA SECURITIES AND INVESTOR PROTECTION ACT) (THE "ACT"), ANY
SUCH SALE MADE PURSUANT TO SECTION 517.061(11) OF THE ACT SHALL BE
VOIDABLE BY THE PURCHASER EITHER WITHIN THREE DAYS AFTER THE FIRST
TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO THE ISSUER, OR
AN AGENCY OF THE ISSUER, OR AN ESCROW AGENT OR WITHIN THREE DAYS
AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH
PURCHASER, WHICHEVER OCCURS LATER.
