AMENDMENT TO LOAN AGREEMENT
Exhibit 10.2
AMENDMENT TO LOAN AGREEMENT
This Amendment to Loan Agreement (the “Amendment”) is executed on this 4th day of May, 2011, between FIFTH THIRD BANK, an Ohio banking corporation, having a mailing address of 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (the “Bank”) and ODYSSEY MARINE EXPLORATION, INC., a Nevada corporation, authorized to do business in Florida, having its principal place of business at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (the “Borrower”), and amends and modifies that certain Loan Agreement dated July 11, 2008 (the “Loan Agreement”) as follows:
1. Terms. All of the capitalized terms in this Amendment shall have the meanings as defined in the Loan Agreement.
2. Appraisal and Maintenance of Loan To Value. Pursuant to the provisions of Section 22 of the Mortgage the Borrower shall order, through the Bank, an appraisal on the commercial real estate located at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx. After receipt, review, and acceptance of the newly ordered appraisal report by the Bank, the Borrower shall be required, if the loan balance is above an 80% Loan To Value (the “LTV”), to pay down the Loan due to mature on July 11, 2013, to an 80% LTV. The curtailments will be required at $100,000.00 per month until the Loan meets the 80% LTV. The first payment would be due within 30 days of the appraisal date and would recur every 30 days thereafter.
3. Warranties. Borrower hereby affirms and warrants that all of the warranties made in the Loan Documents, and any other documents or instruments recited herein or executed with respect thereto directly or indirectly, are true and correct as of the date hereof and that Borrower is not in default of any of the foregoing nor aware of any default with respect thereto, and that Borrower has no defenses or rights of offset with respect to any indebtedness to the Bank. Borrower hereby releases the Bank from any cause of action against it existing as of the date of execution hereof. The rights and defenses being waived and released hereunder include without limitation any claim or defense based on the Bank having charged or collected interest at a rate greater than that allowed to be contracted for by applicable law as changed from time to time, provided, however, in no event shall such waiver and release be deemed to change or modify the terms of the Loan Documents which provide that sums paid or received in excess of the maximum rate of interest allowed to be contracted for by applicable law, as changed from time to time, reduce the principal sum due, said provision to be in full force and effect.
4. Consent and Waiver. Borrower hereby consents to the foregoing and agree that the execution of this Amendment shall in no manner or way whatsoever impair or otherwise adversely affect Borrower’s liability to the Bank under the Loan Documents or any other instrument set forth in the Recitals or herein, all as modified by this Amendment.
5. Cross Document Default. Any default under the terms and conditions of this Amendment or of any instrument set forth herein or contemplated by this Amendment shall be and is a default under every other instrument set forth herein or contemplated by this Amendment.
6. Ratification. Except as modified by this Amendment, Borrower hereby ratifies and confirms the continued validity and viability of all terms, conditions and obligations set forth in the Loan Documents and all other instruments executed in connection with this Amendment, all as modified by this Amendment.
7. Severability. Whenever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision hereof shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity only, without invalidating the remainder of such provision or of the remaining provisions of this Amendment.
8. Florida Contract. This Amendment shall be deemed a Florida contract and shall be construed according to the laws of the State of Florida, regardless of whether this Amendment is executed by certain of the parties hereto in other states.
9. Time. Time is of the essence of this Amendment.
10. Binding Effect and Modification. This Amendment shall bind the successors and assigns to the parties hereto and constitutes the entire understanding of the parties, which may not be modified except in writing, executed by all parties hereto in the same form as this Amendment.
11. Waiver of Jury Trial. The parties to this Amendment hereby irrevocably waive their respective rights to trial by jury in any and all actions arising out of the terms of this Amendment.
12. Conflict. As to any conflict between the terms of the Loan Agreement and the terms of this Amendment, the terms of this Amendment shall supersede and control over such other terms.
13. Execution in Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument, and in making proof of this Amendment it shall not be necessary to produce or account for more than one such counterpart.
14. Other Terms. Except as specifically modified and amended by the terms set forth in this Amendment, all of the other terms, covenants, obligations and conditions of the Loan Agreement shall remain in full force and effect.
Entered into as of the day and year first above written.
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| WITNESSES: | “BORROWER” | |||||
| ODYSSEY MARINE EXPLORATION, INC., | ||||||
| a Nevada corporation | ||||||
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By: | /s/ Xxxxxxx Xxxxxx | ||||
| Signature of Witness | Xxxxxxx Xxxxxx, | |||||
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as its Chief Financial Officer | |||||
| Print or type name of Witness | ||||||
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(CORPORATE SEAL) | |||||
| Signature of Witness | ||||||
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| Print or type name of Witness | ||||||
| “BANK” | ||||||
| FIFTH THIRD BANK, | ||||||
| an Ohio banking corporation | ||||||
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By: | /s/ Xxxxx X. Xxxxxxx Xx. | ||||
| Signature of Witness | Xxxxx X. Xxxxxxx, Xx., | |||||
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as its Senior Vice President | |||||
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| Signature of Witness | (CORPORATE SEAL) | |||||
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| Print or type name of Witness | ||||||
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of May, 2011, by Xxxxxxx Xxxxxx, as Chief Financial Officer of ODYSSEY MARINE EXPLORATION, INC., a Nevada corporation, on behalf of the corporation.
| Personally known |
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| Florida Driver’s License | Notary Public | |||||||
| Other Identification Produced | ||||||||
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Print or type name of Notary | |||||||
| (SEAL) | ||||||||
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STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of May, 2011, by Xxxxx X. Xxxxxxx, Xx., as Senior Vice President of FIFTH THIRD BANK, an Ohio banking corporation, on behalf of the Bank.
| Personally known |
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| Florida Driver’s License | Notary Public | |||||||
| Other Identification Produced | ||||||||
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Print or type name of Notary | |||||||
| (SEAL) | ||||||||
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