Installment Note

EXHIBIT 10.49


Installment Note


$122,891.00 Cincinnati, Ohio
Dec 3 , 2001
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FOR VALUE RECEIVED, SHELL'S SEAFOOD RESTAURANTS, INC. ("Maker"), a Delaware
----- corporation, promises to pay to the order of NORTHGATE SQUARE CINCINNATI, LLC ("Payee"), an Ohio limited liability company, upon the terms and conditions set ----- forth herein, the principal sum of ONE HUNDRED TWENTY-TWO THOUSAND EIGHT HUNDRED NINETY-ONE DOLLARS ($122,891.00) plus interest on the unpaid principal balance at the rate of Ten Percent (10%) per annum, in eight (8) consecutive quarterly payments of SEVENTEEN THOUSAND ONE HUNDRED SIXTY-EIGHT AND 65/100 DOLLARS ($17,168.65) each, commencing on January 1, 2002 and continuing on the first day of each third month thereafter until October 1, 2003, whereupon all amounts of unpaid principal and all unpaid interest accrued thereon will be due and payable in full.


Late Fee. Maker agrees to pay a late fee in the amount of Two Percent (2%) of - -------- each payment due hereunder that is not received by the holder hereof within Ten (10) days after such payment becomes due.


Acceleration Upon Default. Upon the occurrence of any one or more of the - ------------------------- following events ("Events of Default"), the holder hereof may, at its option,
----------------- declare the entire unpaid principal of this Note and any unpaid interest accrued hereon immediately due and payable: (i) Maker fails to make any payment due hereunder within thirty (30) days after the same becomes due; (ii) Maker fails to perform or breaches any provision of this Note, or the Settlement Agreement and Mutual Release (the "Settlement Agreement") or the Security Agreement (the "Security Agreement") executed by Maker and Payee concurrently herewith, and Maker fails to cure such failure or breach within thirty (30) days after Maker receives notice thereof; or (iii) the insolvency of, appointment of a receiver of any of the property of, assignment for the benefit of creditors by, or commencement of any proceedings under any bankruptcy or insolvency laws by or against, Maker.


Maximum Interest. Notwithstanding any provision to the contrary contained - ---------------- herein, in no event shall the total of (i) the aggregate amount of interest accrued or paid hereon through the date of any calculation of interest and (ii) the aggregate amount of any other sums accrued or paid which, under applicable law, are deemed to constitute interest hereon or the loan evidenced hereby through the date of any such calculation of interest, ever exceed the maximum contract rate of interest which could be lawfully charged under the law applicable to this Note on the principal balance of this Note from time to time remaining unpaid. It is the intention of Maker and Payee in connection with the making, delivery and acceptance of this Note to contract in strict compliance with the usury laws of the United States of America and the laws of the State of Ohio. In furtherance of such intention, none of the terms of this Note shall ever create or be construed to create a contract to pay interest at a rate in excess of the maximum contract rate of interest permitted to be charged on this Note under applicable law. The Maker, and any endorsers, guarantors, sureties, or other parties now or hereafter becoming liable for the payment of this Note, shall never be liable for interest in excess of the maximum contract rate of interest that may be lawfully charged under the law applicable to this Note; and, in the event the holder hereof ever receives or collects any such excess, such amount which would be excessive interest shall be applied to the ...