EXHIBIT 10.02
THIS NOTE IS BEING ISSUED AS AN EXTENSION OF THAT CERTAIN NOTE FOR
WHICH ASSIGNMENT WAS DATED JUNE 21, 2004, IN THE PRINCIPAL AMOUNT OF
$600,000 THAT WAS ASSIGNED TO XXXXXX CAPITAL, LP.
SHELLS SEAFOOD RESTAURANTS, INC.
SECURED SENIOR NOTE
Note No. B-2
$600,000 August 4, 2004
FOR VALUE RECEIVED, each of the undersigned Borrowers, parties
to that certain Securities Purchase Agreement, dated January 31,
2002, 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 Xxxxxx Capital, LP,
a Delaware limited liability partnership, or registered assigns
(the "Holder"), the principal amount of Six-Hundred Thousand Dollars
($600,000), 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 be
extended to mature no later than January 31, 2007 (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 point)
higher than the rate otherwise applicable thereto.
Payment 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 dated January
31, 2002, as amended, restated, supplemented or otherwise modified
from time to time, 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. Xxxxxxxx, President
SHELLS OF MELBOURNE, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF COUNTRYSIDE SQUARE, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF STUART, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF ST. XXXX BEACH, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF NEW SMYRNA BEACH, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF FORT XXXXX, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF KISSIMMEE, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF ORLANDO, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS ON THE BEACH, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF CASSELBERRY, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF XXXXXX BEACH, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
AMERICA'S FAVORITE SEAFOOD, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF XXXXXXX, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF 4TH STREET, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF DADE, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF BROWARD, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
SHELLS OF ALTAMONTE SPRINGS, INC.,
a Florida corporation
By:
/s/ Xxxxxx X. Xxxxxxxx, President
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 SHALL 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 AGENCY OF THE ISSUER, OR AN ESCROW AGENT OR WITHIN THREE DAYS
AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO SUCH
PURCHASER, WHICHEVER OCCURS LATER.
