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AMENDMENT NO. 3 TO LOAN AND SECURITY
AGREEMENT
This
Amendment No. 3 (“
Amendment No. 3 ”)
to that certain Loan and Security Agreement dated as of March 9,
2005, as amended by Amendment No. 1, dated May 23, 2005 and
Amendment No. 2, dated as of March 30, 2007 (as amended, the
“
Agreement ”)
is made as of May 20, 2008, by and among Shells Seafood
Restaurants, Inc., a Delaware corporation (the “
Company ”),
and the Lenders (as defined in the Agreement) parties thereto.
Capitalized terms not herein defined shall have the meaning given
to them in the Agreement.
WHEREAS,
the Agreement expires, subject to certain exceptions set forth
therein, on May 23, 2008 (the “
Maturity Date ”);
WHEREAS,
the parties to the Agreement desire to provide for the
extension of the Agreement for an additional one (1) year such
that it expires on May 23, 2009; and
WHEREAS,
as consideration for the extension the Agreement the Company
desires to pay the Lenders an aggregate $100,800 in shares of
the Company’s unregistered common stock based upon the
fair market value of the Shares on the date
hereof.
NOW,
THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereby agree as
follows:
1.
Amendment to Section 1 .
Section 1 of the Agreement is hereby amended and restated in its
entirety as follows:
1.
AMOUNT
.
The Lenders agree, on the terms and conditions of this
Agreement, to make loans (hereinafter called individually a
“Loan” and, collectively, “the Loans”)
to the Company in an aggregate principal amount at any one
time outstanding up to but not exceeding One Million Four
Hundred Forty Thousand Dollars ($1,440,000); provided, however
that each Loan request by the Company to the Lenders, in the
aggregate, shall be in increments of $200,000, and each
individual Lender is committing to make Loans only up to the
aggregate principal amount set forth opposite such
Lenders’ name on Exhibit A hereto. The obligation of a
Lender to make loans up to but not exceeding such aggregate
principal amount at any one time outstanding is hereinafter
called its “commitment.” Within such limits, the
Company may borrow, repay, and reborrow funds under this
revolving credit line, at any time or from time to time from
the date hereof to and including May 23, 2009 (the
“Maturity Date”), subject to earlier termination
of the commitment of the Lenders in accordance herewith. All
Loans shall be made by, and repayments (if any) made to, each
of the Lenders, in proportion to the percentage interest set
forth opposite such Lenders’ name on Exhibit A hereto;
and shall be repaid, to the extent then still outstanding, on
the Maturity Date (subject to earlier repayment as
provided
in Section 4 below).
2.
Consideration .
On the date hereof the Company shall, as consideration for the
extension of the Agreement, pay the Lenders an aggregate of
$100,800 in shares of the Company’s unregistered common stock
(the “
Shares ”)
based upon the fair market value of the Shares on the date hereof.
Each Lender shall receive that number of Shares as is set forth
opposite such Lenders’ name on Exhibit B hereto.
3.
Lender Representations .
Each Lender hereby represents and warrants to the Company,
severally and not jointly, that:
(i)
The
Lender is an ac
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