EXHIBIT 10.2
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$3,000,000.00 Maximum Tampa, Florida
March 29, 2006
FOR VALUE RECEIVED the undersigned, ODYSSEY MARINE EXPLORATION, INC., a
Nevada corporation ("Maker"), promises to pay to the order of MERCANTILE BANK
and its successors or assigns, together with any other holder hereof
("Holder"), at 2307 West Kennedy Boulevard, Tampa, FL 33609, or such other
place as Holder may from time to time designate in writing, the aggregate
unpaid principal amount of all advances made by Holder to Maker, which amount
in no event shall exceed the sum of THREE MILLION AND 00/100 DOLLARS
($3,000,000.00), plus accrued interest, to be paid in lawful money of the
United States of America, as follows:
1) This Note shall bear interest at the rate equal to the "LIBOR 30
Day Index Rate" plus two hundred sixty-five basis points (2.65%) (the "LIBOR
Spread") per annum on the outstanding principal balance, but in no event
shall the interest rate be greater than the Maximum Rate (as defined below).
"LIBOR 30-Day Index Rate" means the rate of interest per annum equal to the
London Interbank Offered Rate ("LIBOR") for thirty (30) day U.S. dollar
deposits as published in the "Money Rates" column of the local edition of The
Wall Street Journal. If such 30-Day Index Rate is no longer available,
Lender shall choose a new 30-Day Index Rate based on comparable information,
and such selection by Lender of a comparable rate shall be dispositive of the
issue as to the appropriate rate. If more than one rate is quoted, Lender
shall use the arithmetic average of such rates. This rate will be effective
on and from the date of disbursement of the Loan proceeds of this Note
through the last day of the current month based on the most recent
information available on the date of this Note. On the first day of the next
month, the interest rate shall be readjusted to the current LIBOR 30-Day
Index Rate plus the LIBOR Spread based on the most recent rate information
available on the date that the interest rate is adjusted and such rate shall
be effective for the next thirty (30) day period. The rate shall be adjusted
every thirty (30) days thereafter at the current LIBOR 30-Day Index Rate plus
the LIBOR Spread based on the most recent rate information available on the
date that the interest rate is adjusted. If The Wall Street Journal is no
longer published or if The Wall Street Journal no longer publishes such rate,
then Lender shall select another publication that publishes such rate and
this new publication shall be substituted for The Wall Street Journal.
2) Advances and payments:
(a) All or part of the principal amount evidenced by this Note may
be borrowed (and to the extent any principal amount advanced is repaid by
Maker, such sum may be borrowed again) prior to the Maturity Date (as defined
below), but only in accordance with the terms of the Revolving Credit
Agreement (as defined below) and only if Maker is not in default hereunder or
under any Loan Documents (as defined below). At no time, however, shall the
principal balance hereunder exceed THREE MILLION AND 00/100 DOLLARS
($3,000,000.00).
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(b) Payments of accrued interest only shall be due and payable
commencing on May 1, 2006, and continuing on the same day of every month.
(c) Maker shall have no obligation to repay the outstanding
principal balance prior to the Maturity Date, except for mandatory payments
of amounts owing hereunder in accordance with the terms of the Revolving
Credit Agreement or unless acceleration is made by Holder pursuant to the
provisions of this Note.
The remaining outstanding principal indebtedness, together with all
accrued and unpaid interest thereon, shall be due and payable on April 21,
2008 (the "Maturity Date"), unless acceleration is made by Holder pursuant to
the provisions hereof.
Interest on this Note shall be computed on the basis of a 365 day or 366
day year as the case may be for the actual number of days outstanding.
Except as set forth in Section 1(d) of the Revolving Credit Agreement,
any payment or prepayment hereunder shall be applied first to unpaid costs of
collection and late charges, if any, then to accrued and unpaid interest and
the balance, if any, to installments of principal, in the inverse order of
their maturity.
After maturity or acceleration, this Note shall bear interest at the
Default Interest Rate (as defined below) until paid in full.
The actual amount due and owing from time to time hereunder shall be
evidenced by Holder's records of receipts and disbursements, which records
(absent manifest error) shall be conclusive evidence of such amount.
This Note is executed pursuant to the terms and conditions of that
certain Amended and Restated Revolving Credit Agreement of even date herewith
between Maker, as Borrower, and Holder, as Lender (the "Revolving Credit
Agreement"), and is secured by, inter alia, an Amended and Restated Security
Agreement of even date herewith. The foregoing and all other agreements,
instruments and documents delivered in connection therewith and herewith are
collectively referred to as the "Loan Documents."
This Note has been executed and delivered in, and is to be governed by
and construed under the laws of, the State of Florida, as amended, except as
modified by the laws and regulations of the United States of America.
Maker shall have no obligation to pay interest or payments in the nature
of interest in excess of the maximum rate of interest allowed to be
contracted for by law, as changed from time to time, applicable to this Note
(the "Maximum Rate"). Any interest in excess of the Maximum Rate paid by
Maker ("excess sum") shall be credited as a payment of principal, or, if
Maker so requests in writing, returned to Maker, or, if the indebtedness and
other obligations evidenced by this Note have been paid in full, returned to
Maker together with interest at the same rate as was paid by Maker during
such period. Any excess sum credited to principal shall be credited as of
the date paid to Holder. The Maximum Rate varies from time to time and from
time to time there may be no specific maximum rate. Holder may, without such
action constituting a breach of any obligations to Maker, seek judicial
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determination of the applicable rate of interest, and its obligation to pay
or credit any proposed excess sum to Maker.
The "Default Interest Rate" and, in the event no specific maximum rate
is applicable, the Maximum Rate shall be twenty five percent (25%) per annum
if the face amount of this Note is greater than $500,000.00; otherwise, it
shall be eighteen percent (18%) per annum.
Holder shall have the right to declare the total unpaid balance hereof
to be immediately due and payable in advance of the Maturity Date upon the
failure of Maker to pay when due any payment of principal or interest or
other amount due hereunder; or upon the occurrence of an event of default
pursuant to any other Loan Documents now or hereafter evidencing, securing
payment of this Note or if Maker shall become insolvent or declare a
voluntary or involuntary petition of bankruptcy. Exercise of this right
shall be without notice to Maker or to any other person liable for payment
hereof, notice of such exercise being hereby expressly waived.
Without in any way altering the generality of this Note, upon the
occurrence of any event of default or upon an occurrence that, with the
giving of notice, or passage of time, or both, will constitute such an event
of default hereunder or under any other Loan Documents now or hereafter
evidencing, securing or guarantying payment of this Note, Holder shall have
no further obligation under this Note or any Loan Document to disburse
additional funds to Maker.
Any payment hereunder not paid when due (at maturity, upon acceleration
or otherwise) shall bear interest at the Default Interest Rate from the due
date until paid.
Provided Holder has not accelerated this Note, Maker shall pay Holder a
late charge of five percent (5%) of any required payment which is not
received by Holder when said payment is due. The parties agree that said
charge is a fair and reasonable charge for the late payment and shall not be
deemed a penalty.
Time is of the essence hereunder. In the event that this Note is
collected by law or through attorneys at law, or under advice therefrom,
Maker agrees to pay all reasonable costs of collection, including reasonable
attorneys' fees, whether or not suit is brought, and whether incurred in
connection with collection, trial, appeal, bankruptcy or other creditors'
proceedings or otherwise.
Acceptance of partial payments or payments marked "payment in full" or
"in satisfaction" or words to similar effect shall not affect the duty of
Maker to pay all obligations due hereunder, and shall not affect the right of
Holder to pursue all remedies available to it under any Loan Documents.
The remedies of Holder shall be cumulative and concurrent, and may be
pursued singularly, successively or together, at the sole discretion of
Holder, and may be exercised as often as occasion therefor shall arise. No
action or omission of Holder, including specifically any failure to exercise
or forbearance in the exercise of any remedy, shall be deemed to be a waiver
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or release of the same, such waiver or release to be effected only through a
written document executed by Holder and then only to the extent specifically
recited therein. A waiver or release with reference to any one event shall
not be construed as continuing or as constituting a course of dealing, nor
shall it be construed as a bar to, or as a waiver or release of, any
subsequent remedy as to a subsequent event.
Maker hereby consents and submits to the jurisdiction of the courts of
the State of Florida, and, notwithstanding its place of residence or
organization or the place of execution of this Note, any litigation relating
hereto, whether arising in contract or tort, by statute or otherwise, shall
be brought in (and, if brought elsewhere, shall be transferred to) a State
court of competent jurisdiction in Hillsborough County, Florida.
Any notice to be given or to be served upon any party hereto in
connection with this Note, whether required or otherwise, may be given in any
manner permitted under the Loan Documents.
Whenever the context so requires, the neuter gender includes the
feminine and/or masculine, as the case may be, and the singular number
includes the plural, and the plural number includes the singular.
Maker hereby expressly waives any valuation and appraisal, presentment,
demand for payment, notice of dishonor, protest, notice of nonpayment or
protest, all other forms of notice whatsoever, and diligence in collection.
MAKER, BY EXECUTING THIS NOTE OR ANY OTHER DOCUMENT CREATING SUCH
LIABILITY, WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY ACTION, WHETHER
ARISING IN CONTRACT OR TORT, BY STATUTE OR OTHERWISE, IN ANY WAY RELATED TO
THIS NOTE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER'S EXTENDING
CREDIT TO MAKER AND NO WAIVER OR LIMITATION OF HOLDER'S RIGHTS UNDER THIS
PARAGRAPH SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON
HOLDER'S BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained
for by Holder as part of the loan evidenced hereby and that, but for Maker's
agreement, Holder would not have extended the loan for the term and with the
interest rate provided herein.
This Note amends and restates in its entirety that certain Revolving
Credit Note dated April 21, 2005 executed by Maker in favor of Holder.
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IN WITNESS WHEREOF, Maker has executed this Note on the day and year
first above written.
ODYSSEY MARINE EXPLORATION, INC.,
a Nevada corporation
By: /s/ Michael Holmes
Name: Michael Holmes
Its: Chief Financial Officer
"MAKER"
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