EXHIBIT 10.59
SHELLS SEAFOOD RESTAURANTS, INC.
SECURED SENIOR NOTE
Note No. A-2
$1,000,000 January 31, 2002
FOR VALUE RECEIVED, each of the undersigned Borrowers, parties to
that certain Securities Purchase Agreement of even date 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 Banyon Investment, LLC, a Delaware
limited liability company, 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 Purchase 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
points) higher than the rate otherwise applicable thereto.
Payments 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 of even date
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 XXXXX, 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 HALL
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 AGENT OF THE ISSUER, OR AN ESCROW AGENT OR WITHIN
THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS OMMUNICATED
TO SUCH PURCHASER, WHICHEVER OCCURS LATER.
