Exhibit 10.1


 


THIS AMENDED AND RESTATED PROMISSORY NOTE (THIS
 “NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).
THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE
THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.


 


AMENDED AND RESTATED PROMISSORY NOTE


 


	Principal Amount: Up to $300,000	Dated as of November 30, 2021


 


FOR VALUE RECEIVED and subject
to the terms and conditions set forth herein, Banyan Acquisition Corporation, a Delaware corporation (“Maker”),
promises to pay to Banyan Acquisition Sponsor LLC, a Delaware limited liability company, or its registered assigns or successors
in interest (collectively, “Payee”), or order, the principal sum of Three Hundred Thousand Dollars ($300,000) or such
lesser amount as shall have been advanced by Payee to Maker and shall remain unpaid under this Note on the Maturity Date (as defined below)
in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made
by check or wire transfer of immediately available funds or as otherwise determined by Maker to such account as Payee may from time to
time designate by written notice in accordance with the provisions of this Note.


 


1. Principal. The
entire unpaid principal balance of this Note shall be due and payable in full on the earlier of: (i) March 1, 2022, and (ii) the
date on which Maker consummates an initial public offering of its securities (such earlier date of (i) and (ii), the “Maturity
Date”), unless accelerated upon the occurrence of an Event of Default (as defined below). The principal balance may be prepaid
at any time by Maker, at its election and without penalty. Under no circumstances shall any individual, including but not limited to any
officer, director, employee or shareholder of Maker, be obligated personally for any obligations or liabilities of Maker hereunder.


 


2. Drawdown
Requests. Maker and Payee agree that Maker may request, from time to time, up to Three Hundred Thousand Dollars ($300,000)
in draw downs under this Note to be used for costs and expenses related to Maker’s proposed initial public offering of its securities
(the “IPO”), including its formation. The principal of this Note may be drawn down from time to time prior to the Maturity
Date upon request from Maker to Payee (each, a “Drawdown Request”). Each Drawdown Request must state the amount to
be drawn down, and must not be an amount less than Ten Thousand Dollars ($10,000) unless agreed upon by Maker and Payee. Payee shall fund
each Drawdown Request no later than three (3) business days after receipt of a Drawdown Request; provided, however,
that the maximum amount of drawdowns outstanding under this Note at any time may not exceed Three Hundred Thousand Dollars ($300,000).
No fees, payments or other amounts shall be due to Payee in connection with, or as a result of, any Drawdown Request by Maker.


 


3. Interest. No
interest shall accrue on the unpaid principal balance of this Note.


 


4. Application
of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum
due under this Note, including (without limitation) reasonable attorney’s fees, then to the payment in full of any late charges
and finally to the reduction of the unpaid principal balance of this Note.


 






     


     


    

 


5. Events
of Default. The following shall constitute an event of default (“Event of Default”):


 


(a) Failure to Make
Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note on the Maturity Date.


 


(b) Voluntary Bankruptcy,
Etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation
or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for
the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action
by Maker in furtherance of any of the foregoing.


 


(c) Involuntary Bankruptcy,
Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary
case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of
its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.


 


6. Remedies.


 


(a) Upon the occurrence
of an Event of Default specified in Section 5(a) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately
and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable thereunder, shall become immediately due
and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the documents evidencing the same to the contrary notwithstanding.


 


(b) Upon the occurrence
of an Event of Default specified in Sections 5(b) or 5(c), the unpaid principal balance of this Note, and all other sums payable with
regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of Payee.


 


7. Waivers. Maker
and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and
notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms
of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal,
or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for
any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may
be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ
in whole or in part in any order desired by Payee.


 


8. Unconditional
Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement
of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party,
and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to
by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect
to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties
hereto without notice to Maker or affecting Maker’s liability hereunder.


 


9. Notices. All
notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing and delivered personally
or sent by first class registered or certified mail, overnight courier service to the address designated in writing; (ii) by facsimile
to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party;
or (iii) by electronic mail (including .pdf), to the electronic mail address most recently provided to such party or such other electronic
mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been
given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile
or electronic mail, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.


 






     


     


    

 


10. Construction. THIS
NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK.


 


11. Severability. Any
provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


 


12. Trust
Waiver. Notwithstanding anything herein to the contrary, Payee hereby waives any and all right, title, interest or claim
of any kind (“Claim”) in or to any distribution of or from the trust account to be established in which proceeds of
the IPO (including the deferred underwriting discounts and commissions) and proceeds of the sale of the warrants issued in a private placement
to occur in connection with the IPO are to be deposited, as described in greater detail in the registration statement and prospectus to
be filed with the Securities and Exchange Commission in connection with the IPO, and hereby agrees not to seek recourse, reimbursement,
payment or satisfaction for any Claim against the trust account for any reason whatsoever.


 


13. Amendment;
Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of
Maker and Payee. For avoidance of doubt, Maker and Payee hereby acknowledge and agree that they have waived any Event of Default that
may have occurred on or prior to the date hereof.


 


14. Assignment. No
assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise)
without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void.


 


[Signature Page Follows]


 






     


     


    










 


 IN WITNESS WHEREOF, Maker, intending
to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.


 


	 	BANYAN ACQUISITION CORPORATION
	 	 
	 	By:	/s/ Keith Jaffee
	 	 	Name: 	Keith Jaffee
	 	 	Title:	Chief Executive Officer


  


Agreed and Acknowledged:


 


	BANYAN ACQUISITION SPONSOR LLC	 
	 	 	 	 
	By:	/s/ Jerry Hyman	 
	 	Name:  	Jerry Hyman	 
	 	Title:	Member	 


 


[Signature Page to Amended and Restated Promissory
Note]