EXHIBIT 10.16
Prepared By:
Xxxxx X. Xxxxxxxx, Esq.
Page, Scrantom, Sprouse,
Xxxxxx & Ford, P.C.
P. O. Xxx 0000
Xxxxxxxx, Xxxxxxx 00000
.
FIRST MODIFICATION AGREEMENT
FORT LAUDERDALE, BROWARD COUNTY
THIS FIRST MODIFICATION AGREEMENT made and entered into as of the 23rd
day of January, 2004, by and between BANKATLANTIC BANCORP, INC., a Florida
corporation (hereinafter referred to as "Borrower") and COLUMBUS BANK AND TRUST
COMPANY, a Georgia banking corporation, whose address is 0000 Xxxxxxxx,
Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Bank").
W I T N E S S E T H T H A T:
WHEREAS, Borrower and Bank entered into a loan agreement dated September 17,
2001 (the "Loan Agreement") and related loan documents identified therein under
(the "Loan Documents") under the terms of which Bank established a line of
credit on a revolving basis for Borrower under which Borrower was permitted to
borrow up to $55,000,000.00 through a date certain in 2002 and up to
$30,000,000.00 thereafter (the "Loan"), said Loan being evidenced by a note from
Borrower to Bank dated September 17, 2001, in the maximum principal amount of
$55,000,000.00 (the "Note"); and
WHEREAS, the Note has a maturity date of September 1, 2004 and Borrower
has requested that the maturity date of the Note be extended from September 1,
2004 to March 1, 2005; and
WHEREAS, Bank has agreed to modify the Note to extend the maturity date
of the Note from September 1, 2004 to March 1, 2005 subject to the terms and
conditions contained in this First Modification Agreement; and
WHEREAS, Borrower agrees that the modification of the Loan pursuant to
the terms hereof will be of direct and substantial benefit to Borrower; and
NOW, THEREFORE, for and in consideration of the foregoing benefits and
the sum of Ten ($10.00) Dollars in hand paid by Borrower to Bank, the receipt
and sufficiency of which is hereby acknowledged, Borrower and Bank do hereby
agree that:
1. Preamble. The above and foregoing preamble is acknowledged by the
parties to be true and correct and incorporated herein by reference.
2. Modification of Existing Note. From and after the date hereof the
Note is hereby amended and modified as follows:
(i) The reference in Paragraph (c) of the Note to
September 1, 2004 is hereby changed to March 1, 2005.
3. Modification of Existing Loan Agreement. From and after the date
hereof the Loan Agreement is hereby modified and amended as follows:
(i) The reference in Section 2.02 of the Loan Agreement
to September 1, 2004 is hereby changed to March 1,
2005.
4. Modification of Loan Documents. All other documents evidencing,
securing or otherwise relating to the Loan, including, without limitation, the
Stock Pledge and Security Agreement between Borrower and Bank dated September
17, 2001 (collectively, the "Other Loan Documents"), are hereby modified and
amended to the extent necessary to reflect the aforesaid amendment and
modification to the Note and Loan Agreement and to reflect and incorporate the
change in the maturity date of the Note from September 1, 2004 to March 1, 2005.
The Other Loan Documents, as applicable, shall, without limitation, secure the
indebtedness and obligations evidenced by the Note as amended and modified
hereby.
5. Ratification. Except as expressly set forth herein, all terms,
covenants and provisions of the Note and Loan Agreement and all terms, covenants
and provisions of the Other Loan Documents shall remain in full force and
effect, and Borrower does hereby expressly ratify and confirm the Note, Loan
Agreement and Other Loan Documents and the continuing priority of any of the
Other Loan Documents which secures payment of the Note without the loss of
priority or perfection. It is the intent of the parties hereto that this First
Modification Agreement shall not constitute a novation.
6. Waiver of Claims. Borrower does hereby waive any claim or defense
which it now has by virtue of this First Modification Agreement or any
instrument set forth hereunder, and further agrees not to raise any such claims
or defenses in any civil proceeding or otherwise.
7. Successors and Assigns. This agreement shall be binding upon and
shall inure to the benefit of the parties hereto, their legal representatives,
successors, successors-in-title and assigns.
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IN WITNESS WHEREOF, the parties have caused this agreement to be
appropriately executed under seal, effective as of the day and year first above
written.
BORROWER:
BANKATLANTIC BANCORP, INC., a Florida corporation
By: _______________________________
Its:___________________________
(CORPORATE SEAL)
Signed, sealed and delivered
in the presence of:
_________________________
Witness
_________________________
Notary Public
My Commission Expires:
(NOTARIAL SEAL)
BANK:
COLUMBUS BANK AND TRUST COMPANY, a
Georgia banking corporation
By: ______________________________________
Its:__________________________________
(CORPORATE SEAL)
Signed, sealed and delivered
in the presence of:
_________________________
Witness
_________________________
Notary Public
My Commission Expires:
(NOTARIAL SEAL)
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