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Exhibit
10.1
LOAN
AGREEMENT
THIS LOAN AGREEMENT
(this “Agreement”) is made as of this 11
th
day of July, 2008 (the
“Closing Date”), by and among ODYSSEY MARINE
EXPLORATION, INC. , a Nevada corporation, whose address is 5215
West Laurel Street, Tampa, Florida 33607 (the
“Borrower”), and FIFTH THIRD BANK , a Michigan
banking corporation, whose address is: 201 East Kennedy Boulevard,
Tampa, Florida 33602 (the “Lender”).
WITNESSETH
:
WHEREAS , Borrower has
requested that Lender make a loan on the date hereof secured by
commercial property located at 5215 West Laurel Street, Tampa,
Florida (the “Property”) in the original principal
amount of TWO MILLION FIVE HUNDRED EIGHTY THOUSAND AND NO/100
DOLLARS ($2,580,000.00) (the “Loan”);
WHEREAS , Lender has
agreed to extend the requested financing to Borrower on the terms
and conditions set forth herein and in all other documents,
agreements or instruments that Borrower and any other parties have
executed and delivered, or may hereafter execute and deliver, to
evidence and secure the Loan, or any part thereof, in form and
substance satisfactory to Lender, as amended, restated, renewed,
supplemented or otherwise modified from time to time.
NOW THEREFORE , for
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
THE LOAN
Section 1.1
Disbursement . Upon Borrower’s satisfaction of all
conditions precedent to disbursement set forth in this Agreement,
Lender agrees to fund the Loan on the Closing Date to pay items
approved by Lender as set forth in Lender’s loan closing and
disbursement statement. The Loan shall be fully funded on the
Closing Date and, unless otherwise agreed between Lender and
Borrower in writing, no provision is being made for disbursements
of the Loan after the Closing Date. The Loan evidenced by this
Agreement is a non-revolving loan. Funds repaid may not be
re-borrowed.
Section 1.2 Use of
Proceeds . The proceeds of the Loan shall be used for
commercial purposes and for payment of certain Lender-approved
closing costs and other expenses incurred by Borrower in connection
with the closing of the Loan.
Section 1.3 Note and
Mortgage Security . The obligation of Borrower to repay the
Loan and the Obligations shall be evidenced by a promissory note
issued by Borrower in favor of Lender in connection with the Loan
(as amended, restated, renewed, supplemented or otherwise modified
from time to time, the “Note”) and be
secured by, among other things, a
Mortgage and Security Agreement (as amended, restated, renewed,
supplemented or otherwise modified from time to time, the
“Mortgage”). As used herein, “Obligations”
shall mean all present and future loans, advances, liabilities,
obligations, covenants, duties, and debts owing by Borrower to
Lender under this Agreement, the Note and the other Loan Documents
(as defined below), whether arising from an extension of credit,
acceptance, loan, guaranty, or otherwise, whether direct or
indirect, absolute or contingent, due or to become due, primary or
secondary, as principal or guarantor, and including, without
limitation, all interest, charges, expenses, fees, attorneys’
fees, filing fees and any other sums chargeable to Borrower
hereunder, under another Loan Document, or under any other
agreement or instrument with Lender.
Section 1.4
Assignments . As additional security for the Loan, Borrower
shall execute and deliver to Lender, an Assignment of Rents,
Leases, Contracts, Accounts and Deposits and an Assignment and
Security Agreement of Deposit Account (collectively the
“Assignments”).
ARTICLE II
CLOSING
CONDITIONS
Section 2.1 Loan
Documents . Prior to the closing of the Loan and disbursement
of the Loan, Borrower shall have executed and delivered to Lender,
or caused to be executed and delivered to the Lender all original
documents, instruments, reports and other items set forth on
Lender’s “closing checklist” including, without
limitation, duly executed originals of each of this Agreement, the
Note, the Mortgage, the Assignments, and all other agreements,
documents and other instruments required by Lender in connection
herewith (collectively, as amended, restated, renewed, supplemented
or otherwise modified from time to time, the “Loan
Documents” and each a “Loan
Document”).
Section 2.2 Payment
of Fees and Costs . Borrower shall have paid all fees and costs
set forth on Lender’s loan closing and disbursement
statement, which shall include, without limitation, a loan fee in
the amount of $19,350.00, attorney’s fees and third-party
fees incurred by Lender in connection with the making of the Loan.
All such fees shall be deemed to be fully earned and non-refundable
when paid.
Section 2.3 Due
Diligence . Lender shall have completed its review and due
diligence in connection with the making of the Loan.
Section 2.4
Representations and Warranties . Borrower’s
representations and warranties shall be true and correct in all
respects.
Section 2.5 Material
Adverse Change . No material adverse change shall have occurred
in the business or financial conditions of Borrower or the Property
since review of such parties’ last submitted financial
statements.
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ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF BORROWER
Borrower hereby makes the
following representations and warranties to Lender:
Section 3.1
Organization . Borrower is a corporation duly formed,
validly existing and in good standing under the laws of the State
of Nevada, and is duly qualified and authorized to do business in
the State of Florida, and has the power and authority to carry on
its business as now being and hereafter proposed to be conducted,
and each other state where it is required to be qualified or
authorized to do business.
Section 3.2 Power and
Authority . Borrower has the legal right, power and authority
to execute, deliver and perform the Loan Documents to which it is a
party in accordance with their terms, and each Loan Document is, or
when executed and delivered will be, a legal, valid and binding
obligation of Borrower.
Section 3.3
Conflicts . The execution, delivery and performance of each
of the Loan Documents to which Borrower is a party do not and will
not, require any approval or consent of any governmental authority
or violate any applicable law relating to Borrower or any of its
affiliates, conflict with, result in a breach of or constitute a
default under any contract, mortgage, deed, lease, indenture,
agreement or other instrument to which Borrower is a party or by
which the Property is bound, or result in or require the creation
or imposition of any lien upon or with respect to the Property,
other than those encumbrances that are satisfactory to Lender and
reflected on Lender’s mortgagee title insurance policy (the
“Permitted Encumbrances”).
Section 3.4 Validity
of Loan Documents . The Loan Documents are in all respects
legal, valid, and binding obligations of Borrower, enforceable in
accordance with their terms, and grant to Lender a valid and
enforceable first priority lien and security interest in the
Property and the personal property located thereon.
Section 3.5 Violation
of Governmental Law, Ordinances or Regulations . Borrower has
no knowledge of any violations or notices of violations of any
federal or state law or county ordinance or order or requirement of
the county in which the Property is located or any county
department or other governmental authority having jurisdiction
affecting the Property, which violations in any way relate to or
affect the Property.
Section 3.6 Use of
Proceeds . All proceeds of the Loan shall be used for
commercial purposes as set forth herein, and for no other
purpose.
Section 3.7 Financial
Statements and Information Provided to Lender . All financial
statements and other information furnished to Lender by Borrower
are true, correct and complete and do not fail to state any
material fact.
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Section 3.8
Solvency . After giving effect to the Loan,
(a) Borrower’s assets, at a fair valuation, are in
excess of the total amount of its debts (including contingent
liabilities), and (b) the present fair saleable value of
Borrower’s assets is greater than its probable liability on
its existing debts as such debts become absolute and matured, and
(c) Borrower is then able and expects to be able to pay its
debts (including contingent debts and other commitments) as they
mature, and (d) Borrower has sufficient capital sufficient to
carry on its business as conducted and as proposed to be
conducted.
Section 3.9 Loan
Subordinations . Any related party notes payable by Borrower to
any other related parties, now existing or hereafter made are and
shall be subordinated to the lien of the Loan granted herein.
Borrower confirms that all related party debts are fully disclosed
on the financial statements provided to the Lender and in the event
the Lender so requires, such related parties shall enter into
subordination agreements to evidence the requirements of this
Section.
Section 3.10
Defaults . No default or Event of Default will occur as a
result of execution of any of the Loan Documents, or the making of
the Loan.
ARTICLE IV
AFFIRMATIVE
COVENANTS
Borrower hereby covenants and
agrees with Lender as follows:
Section 4.1
Performance . Borrower shall duly and punctually perform,
observe and comply with all of the terms, provisions, conditions,
covenants and agreements on Borrower’s part to be performed,
observed and complied with hereunder and under the Loan Documents.
Borrower will promptly give notice in writing to Lender (a) of
the occurrence of any material litigation or proceedings affecting
Borrower, whether or not Borrower’s liability, if any, is
covered by insurance, and (b) of any dispute between Borrower
and any governmental authority or regulatory body or any other
party that may materially interfere with Borrower’s business
operations or use of the Property as intended.
Section 4.2
Leases . Borrower shall comply with the terms of all leases
in effect from time to time for the Property.
Section 4.3 Permitted
Encumbrances . Borrower shall comply with the terms of any
documents comprising Permitted Encumbrances upon the Property,
including the timely payment of all assessments implemented
pursuant to such Permitted Encumbrances.
Section 4.4
Expenses . Borrower shall pay all costs of the Loan
contemplated hereunder and all expenses of Lender with respect
thereto, including but not limited to attorneys’ fees
(including reasonable attorneys’ fees incurred by Lender
subsequent to the closing of the Loan in connection with the
disbursement, administration, collection, restructure, amendment,
or transfer of the Loan requested by Borrower),
recording
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expenses, surveys, title insurance
premiums, intangible taxes, documentary stamps, surtax and other
revenue fees, escrow fees, recording costs, architect or
engineer’s costs and inspection fees, expenses of foreclosure
(including reasonable attorneys’ fees) and similar
items.
Section 4.5
Preservation of Existence; Maintenance of Property; Compliance
with Laws . Borrower shall preserve its existence as an ongoing
limited liability company, operating in the same manner as in
effect on the Closing Date, shall maintain the Property in a
first-class manner, and shall comply with all applicable laws of
governmental authorities having jurisdiction over the
Property.
Section 4.6 Financial
Statements . Borrower shall deliver to Lender annually, within
120 days of each fiscal year year-end, audited financial statements
reported by a certified public accounting firm reasonably
acceptable to Lender (with Lender hereby acknowledging that
Ferlita, Walsh & Gonzalez, P.A. is reasonably acceptable),
reflecting its operations during such fiscal year, including,
without limitation, a consolidated balance sheet, and consolidated
statement of operations, stockholders equity and cash flows, with
all footnotes, appropriate supporting schedules and prepared in
conformity with generally accepted accounting principles, applied
on a basis consistent with that of the preceding year and taking
into account all contingent liabilities, and, upon filing with the
SEC, a copy of its Quarterly Report on Form 10-Q within 60 days of
each quarter end. Lender acknowledges that Borrower may satisfy its
obligations pursuant to this Section 4.6 by electronically
filing such financial statements and Quarterly Reports on Form 10-Q
with the SEC through the SEC’s EDGAR system (or any
comparable successor filing system implemented by the
SEC).
Section 4.7
Non-Foreign Status . Borrower shall insure that at all times
during which the Loan or any part thereof remains unpaid, all
applicable provisions of section 1445 of the Internal Revenue Code,
as amended, and the provisions of the regulations promulgated
thereunder, are complied with by Borrower.
Section 4.8 Books and
Records . Borrower shall keep and properly maintain accurate
books, records and accounts reflecting all items of income and
expense of Borrower in connection with the Property and otherwise;
and, upon the request of Lender, to make such books, records, and
accounts immediately available to Lender for inspection or
independent audit.
Section 4.9 Operating
Accounts . During the term of the Loan, Borrower shall maintain
its operating accounts with Lender.
Section 4.10 Interest
Reserve Account . At closing, Borrower shall have deposited
into or otherwise credited to an interest bearing account with
Lender the sum of $500,000.00 for the payment of principal and
interest on the Loan for the first one year period (the
“Interest Reserve Account”). On each one year
anniversary of the Loan thereafter, Borrower shall deposit into or
otherwise credit to the Interest Reserve Account an amount
sufficient to ensure there is $500,000.00 in the Interest
Reserve
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Account for debt service payments for
the succeeding year of the Loan. Borrower hereby pledges and
assigns the Interest Reserve A
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