Loan Agreement between Shells Seafood Restaurants, Inc. and Colonial Bank dated October 8, 2002

Summary

Shells Seafood Restaurants, Inc. has entered into a loan agreement with Colonial Bank for $667,500, effective October 8, 2002. The company agrees to repay the loan with interest based on the bank's base rate, with monthly payments until a final payment due in October 2007. The loan is secured by a mortgage and other collateral. Shells Seafood must provide regular financial statements, maintain certain financial ratios, and keep its main accounts with the bank. Failure to meet payment or other terms may result in default and enforcement actions by the bank.

EX-10.49 3 dex1049.txt LOAN AGREEMENT - 10/8/2002 Exhibit 10.49 $667,500.00 Effective as of October 8, 2002 Tampa, Florida 1. Promise to Pay. SHELLS SEAFOOD RESTAURANTS, INC., a Delaware corporation ("Maker"), whose address is 16313 North Dale Mabry Highway, Suite 100, Tampa, Florida 33618, for value received, promises to pay to the order of COLONIAL BANK, an Alabama banking corporation ("Bank"), at 400 North Tampa Street, Suite 2500, Tampa, Florida 33602, or at such other place as the holder of this Promissory Note designates in writing to Maker, the principal amount of Six Hundred Sixty-Seven Thousand Five Hundred Dollars ($667,500.00), together with interest as required under this Promissory Note (the "Note"). 2. Interest Rate. Maker shall pay interest on the outstanding principal amount of this Note at an annual rate (the "Interest Rate") equal to the Colonial Bank Base Rate (as hereinafter defined), floating on a daily basis. The term "Colonial Bank Base Rate" as used herein shall mean the rate of interest per annum as reported from time to time by the Bank (or such other source for determining the base rate of interest as may hereafter be selected by Bank) as its base rate of interest, and shall not necessarily mean or imply that such base rate of interest is the lowest or most favorable rate of interest then available from Bank to specific borrowers. Notwithstanding the foregoing, Maker shall have the right, at any time during the term of this Note, to adjust the Interest Rate to a fixed rate by giving written notice thereof to Maker at least thirty (30) days prior to any monthly payment date. In the event Maker shall deliver written notice to Bank of its intention to adjust the Interest Rate to a fixed rate as described above, then the "Interest Rate" under this Note shall be adjusted, upon the applicable payment date, to a fixed rate which is equal to the prevailing market rate for loans of similar size and borrowers of similar credit status, as determined by Bank in its sole discretion. 3. Payments. Commencing on the 8th day of November, 2002, and continuing monthly on the 8th day of each and every month thereafter, through and including September 8, 2007, Maker shall make a payment of principal in the amount of Three Thousand Seven Hundred Nine Dollars ($3,709.00), plus interest in an amount equal to the accrued and unpaid interest hereunder. A final payment of all outstanding principal and unpaid accrued interest shall be due and payable in full on October 8, 2007. 4. Application and Form of Payments. Payments will be applied first to accrued interest and then to principal, and all interest on this Note will be computed on the basis of the actual number of days elapsed over a 360-day year. Payments of interest and principal must be made in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. Payments received after 2:00 p.m. will be treated as being received on the next banking day. 5. Prepayment, Late Fee, Interest on Default, and Maximum Interest. Maker may prepay all or any portion of this Note without premium or penalty. Maker shall give Bank one day's prior written notice of any prepayment. Partial prepayments will be applied against DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $2,336.25 AND INTANGIBLE TAXES IN THE AMOUNT OF $1,335.00 DUE ON THIS NOTE HAVE BEEN PAID AND THE PROPER STAMPS ARE AFFIXED TO THE MORTGAGE SECURING THIS NOTE. required principal installments in the inverse order of their maturities. Therefore, partial prepayments will not affect the due date of any required installments under this Note until this Note is paid in full. Maker agrees to pay a late fee equal to five percent (5%) of any payment due hereunder that is not paid within ten (10) days of the date the payment is due. Interest on all amounts not paid when due after maturity, acceleration, or otherwise, will accrue and will be payable at the rate which is five percent (5%) above the Interest Rate, but in no event higher than the maximum rate of interest allowed by applicable law. 6. Security. This Note is secured, inter alia, by a Mortgage and Security Agreement of even date herewith from Maker to Bank (the "Mortgage") and by any and all collateral presently and hereafter held by Bank from Maker and given or agreed to be given to Bank by Maker, plus any and all collateral presently or hereafter held by Bank given or agreed to be given by any third party or parties for the benefit of Maker hereof. 7. Representations, Covenants and Warranties. Maker hereby represents, covenants and warranties as follows: (a) Maker will deliver to Bank quarterly 10-Q statements and annual 10-K statements, and any other publicly-filed statements within ten (10) days of the filing of the same. Maker will also furnish to Bank, promptly upon request, such other information regarding the operation, business affairs and financial condition of the Borrower which Bank may reasonably request, which information shall be kept confidential by Bank. (b) Maker represents that the only existing debt with shareholders of Maker (collectively, the "Shareholder Debt") is as follows: (i) A note in the amount of One Million Dollars ($1,000,000.00), payable to the order of Shell Investment Partners, LLC. (ii) A note in the amount of One Million Dollars ($1,000,000.00), payable to the order of Banyon Investments, LLC. Maker will not, without the prior written consent of Lender, modify the terms and conditions of the existing Shareholder Debt, or create, incur, assume or permit any additional Shareholder Debt. (c) Maker shall at all times during the term hereof, determined as of the close of fiscal year 2002, and continuing at the close of each fiscal quarter thereafter, maintain a Debt Coverage Ratio of greater than 1.25 to 1.00. For the purposes of the above calculation, the term "Debt Coverage Ratio" shall mean, for the previous four fiscal quarters, the ratio of (a) earnings before interest, taxes, depreciation and amortization, plus insurance expense (property and casualty coverage only) to (b) current maturities of long term debt plus interest expense. For purposes of calculating Debt Coverage Ratio during fiscal year 2004, any balloon payments due under the Shareholder Debt referenced above will be excluded from the calculation of current maturities of long term debt. 2 (d) Maker will establish and maintain its primary depository and cash management accounts with Bank. 8. Default and Remedies. The occurrence of any of the following events constitutes a "Default" (in the following provisions, the term "Guarantor" refers jointly and severally to any person or entity that previously has guaranteed or either currently or in the future guarantees the repayment of this Note): (a) The nonpayment within five (5) days after delivery of a written notice to Maker that it is due and payable of any interest or principal under (i) this Note or (ii) that certain Promissory Note dated the same date as this Note, in the original principal amount of Six Hundred Thirty-Seven Thousand Five Hundred Seventy-Five and 76/100ths Dollars ($637,575.76), made by Shells of Melbourne Joint Venture, a Florida general partnership, to the order of Bank (the "Melbourne Note"), or the nonpayment any other liability, obligation, or indebtedness owing from Maker to Bank, whether at maturity, by acceleration, or otherwise (provided however, that Bank shall have no obligation to provide written notice of the nonpayment of any principal or interest under this Note more than twice during any calendar year, and thereafter Bank shall have no further obligation to provide any such notice during the remainder of the applicable calendar year and nonpayment when due of any such sums shall be a default hereunder); (b) A material breach by Maker or Guarantor of any material representation, warranty, or covenant contained in this Note or any other agreement between Maker or Guarantor and Bank, where said breach shall continue for a period of thirty (30) days after delivery of written notice thereof to Maker; (c) The occurrence of a default under the Mortgage or under any other agreement given by Maker or Guarantor to Bank as security for the indebtedness evidenced hereby (subject to applicable grace and cure periods contained therein, if any). Upon the occurrence of a Default and at any time thereafter during the continuance of a Default, Bank, at its option and as often as it desires, may declare all liabilities, obligations, and indebtedness due Bank, including this Note and the Melbourne Note, to be immediately due and payable without demand, notice, or presentment, and may exercise any other remedy available to it under the Mortgage or any other agreement given by Maker or Guarantor to Bank, and any other remedy available to it at law or in equity. 9. Payment of Costs. Maker shall pay all costs incurred by the holder of this Note in enforcing or collecting this Note and enforcing each agreement executed in connection with this Note (including the Mortgage or any other agreement under which real or personal property is pledged as security for this Note), including without limitation all reasonable attorneys' fees, costs, and expenses incurred in all matters of interpretation, enforcement, and collection, before, during, and after demand, suit, proceeding, trial, appeal, and post-judgment collection efforts as well as all costs and fees incurred by the holder of this Note in connection with any bankruptcy, reorganization, or similar proceeding (including efforts to obtain relief from any stay) if Maker or any other person or entity liable for the indebtedness represented by this Note becomes involved in any bankruptcy, reorganization, or similar proceeding. 3 10. Waiver and Consents. Maker and every other person liable at any time for payment of this Note waives presentment, protest, notice of protest, and notice of dishonor. Maker expressly consents to all extensions and renewals of this Note (as a whole or in part) and all delays in time or payment or other performance under this Note that the holder of this Note grants at any time and from time to time, without limitation and without any notice to or further consent of Maker. Maker agrees that its obligations under this Note are independent of the obligation of any other maker, guarantor or other person or entity that now or later is obligated to pay this Note. Maker also agrees that Bank may release any security for or any other obligor of this Note or waive, extend, alter, amend, or modify this Note or otherwise take any action that varies the risk of Maker without releasing or discharging Maker from Maker's obligation to repay this Note. 11. Venue. Maker and Bank agree that venue for each action, suit, or other legal proceeding arising under or relating to this Note or any agreement securing or related to this Note shall be the County Court or Circuit Court located in Hillsborough County, Florida, or the Federal District Court for the Middle District of Florida, Hillsborough County, Florida, and Maker and Bank hereby waive any right to sue or be sued in any other county in Florida or any other state, unless it shall be lawfully required that any such action, suit or other legal proceeding have venue elsewhere. 12. Savings Clause. Nothing herein, nor any transaction related hereto, shall be construed or so operated as to require Maker to pay interest at a greater rate than shall be lawful. Should any interest or other charges paid by Maker in connection with the loan evidenced by this Note result in the computation or earning of interest in excess of the maximum contract rate of interest which is legally permitted under applicable Florida law or Federal preemption statutes, if Bank shall elect a benefit thereof, then any and all such excess shall be, and the same is, hereby waived by Bank, and any and all such excess shall be automatically credited against and in reduction of the balance due under this Note and any portion which exceeds the balance due under this Note shall be paid by Bank to Maker. 13. Waiver of Jury Trial. BY THE EXECUTION HEREOF, MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREES THAT NEITHER MAKER NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF MAKER SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE ARISING FROM OR BASED UPON THIS NOTE, THE MORTGAGE, OR ANY OTHER LOAN DOCUMENT EVIDENCING, SECURING, OR RELATING TO THE INDEBTEDNESS EVIDENCED BY THIS NOTE OR TO THE DEALINGS OR RELATIONSHIP BETWEEN OR AMONG THE PARTIES HERETO. NEITHER MAKER NOR BANK WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT OR CAN NOT BE WAIVED. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY NEGOTIATED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTION. NEITHER MAKER NOR BANK HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO ENTER INTO THIS TRANSACTION. 4 14. Modification. This Note may not be modified or terminated orally, but only by agreement or discharge in writing and signed by Bank. Any forbearance of Bank in exercising any right or remedy hereunder, under the Mortgage or under any other loan document relating to this transaction shall not be a waiver of or preclude the exercise of any right or remedy. Acceptance by Bank of payment of any sum payable hereunder after the due date of such payment shall not be a waiver of Bank's right to either require prompt payment when due of all other sums payable hereunder or to declare a default for the failure to make prompt payment in the future. 15. Successors and Assigns. Whenever Bank is referred to in this Note, such reference shall be deemed to include the successors and assigns of Bank, including, without limitation, any subsequent assignee or holder of this Note, and all covenants, provisions, and all agreements by or on behalf of Maker and any endorsers, guarantors, and sureties hereof which are contained herein shall inure to the benefit of the successors and assigns of Bank. 16. Corrective Documentation. For and in consideration of the funding or renewal of the indebtedness evidenced hereby, Maker further agrees to cooperate with Bank and to reexecute any and all documentation relating to the loan evidenced by this Note which is deemed necessary or desirable in Bank's reasonable discretion, in order to correct or adjust any clerical errors or omissions contained in any document executed in connection with the loan evidenced by this Note. 17. Miscellaneous. The headings preceding the text of the sections of this Note have been inserted solely for convenience of reference and do not limit or affect the meaning, interpretation, or effect of this Note or the sections. The validity, construction, interpretation, and enforceability of this Note are governed by the laws of the State of Florida, excluding its laws relating to the resolution of conflicts of laws of different jurisdictions. Each required notice, consent, or approval, if any, under this Note will be valid only if it is given in writing (or sent by telex, telegram, or telecopy and promptly confirmed in writing) and addressed by the sender to the recipient's address that is listed in this Note or to such other addresses as either party may designate by written notice to the other party. A validly given notice, consent, or approval will be effective (i) on receipt of hand delivery to the recipient, (ii) seven (7) days after having been deposited in the United States mail, certified or registered, return receipt requested, sufficient postage affixed or prepaid, or (iii) one (1) business day after it is deposited with an expedited, overnight courier service (such as by way of example but not limitation, U.S. Express Mail, Federal Express or Airborne). These notice provisions apply only if a notice is required by this Note. They do not apply if no notice is required by this Note. This Note is not assignable by Maker. [SIGNATURE LINES BEGIN ON FOLLOWING PAGE] 5 [SIGNATURE PAGE TO PROMISSORY NOTE] IN WITNESS WHEREOF, Maker has caused this Note to be executed and delivered as of the date first above written. SHELLS SEAFOOD RESTAURANTS, INC., a Delaware corporation By: /s/ Warren R. Nelson ---------------------------------- Warren R. Nelson, Vice President STATE OF FLORIDA COUNTY OF HILLSBOROUGH The foregoing instrument was acknowledged before me this 1st day of October, 2002, by Warren R. Nelson, as Vice President of SHELLS SEAFOOD RESTAURANTS, INC., a Delaware corporation, on behalf of the corporation. He is personally known to me or has produced a valid Florida driver's license as identification. /s/ Glenda L. Squire -------------------------------- Notary Public Glenda L. Squire -------------------------------- (Print, Type or Stamp Name) My Commission Expires: 04-08-04 Glenda L Squire [GRAPHIC] My Commission CC922000 Expires April 08, 2004 6