EXHIBIT 10.17
-------------
Loan #9531605184-00006
LOAN MODIFICATION AGREEMENT
THIS LOAN MODIFICATION AGREEMENT ("Agreement") is made and effective as
of August 4, 2008, by and between SUTRON CORPORATION, a Virginia corporation
("Borrower") and BRANCH BANKING AND TRUST COMPANY, a North Carolina banking
corporation formerly known as (and successor to) Branch Banking and Trust
Company of Virginia ("Lender").
R E C I T A L S
WHEREAS, on July 29, 2004, Lender made a commercial line of credit loan
in the amount of One Million Six Hundred Twenty-five Thousand and no/100 Dollars
($1,625,000.00)(as subsequently modified, the "Loan") to the Borrower, evidenced
by, inter alia, (i) the Borrower's Commercial Promissory Note of same date in
the amount of the Loan (as subsequently modified, the "Note"), (ii) that certain
first lien Security Agreement of same date executed by the Borrower for the
benefit of the Lender (as subsequently modified, the "Security Agreement"), and
(iii) that Loan Agreement of same date executed by the Borrower and the Lender
(as subsequently modified, the "Loan Agreement")(the Note, Security Agreement,
Loan Agreement, and all other documents evidencing or securing the Loan, as
subsequently modified, are sometimes collectively referred to herein as "Loan
Documents"); and
WHEREAS, by Guaranty Agreement dated July 29, 2004 (the "Guaranty"),
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and Xxxx X. XxXxxxxx
(collectively, the "Guarantors") jointly and severally guaranteed repayment of
the Loan and performance of all of Borrower's obligations under the Loan
Documents; and
WHEREAS, by Loan Modification Agreement and Release of Guarantors dated
as of August 5, 2005, the Lender and the Borrower agreed, inter alia, to (i)
increase the principal amount of the Loan to Two Million and no/100 Dollars
($2,000,000.00), (ii) extend the maturity date of the Loan, and (iii) release
the Guarantors from their obligations under the Guaranty; and
WHEREAS, by Loan Modification Agreement dated as of August 5, 2006, the
Lender and the Borrower agreed, inter alia, to (i) increase the principal amount
of the Loan to Two Million Five Hundred Thousand and no/100 Dollars
($2,500,000.00) and (ii) extend the maturity date of the Loan; and
WHEREAS, by Loan Modification Agreement dated as of June 26, 2007, the
Lender and the Borrower agreed, inter alia, to (increase the principal amount of
the Loan to Three Million and no/100 Dollars ($3,000,000.00) and (ii) extend the
maturity date of the Loan; and
WHEREAS, the Borrower has requested that Lender further extend the
maturity date of the Loan; and
WHEREAS, the Lender has agreed to grant Borrower's request, subject to
Borrower's execution and delivery of, and performance of the terms and
conditions set forth in, this Agreement.
NOW THEREFORE, for and in consideration of the above recitals and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Recitals. The above recitals are incorporated herein and made a part
hereof.
2. Loan Statement. Borrower and Lender hereby confirm that as of the
date hereof, (i) there is no accrued and unpaid interest under the Loan, and
(ii) there is no outstanding principal balance under the Loan.
3. Note Payments/Maturity Date. Commencing August 5, 2008 and
continuing on the fifth (5th) day of each and every calendar month during the
term of the Loan, payments of interest only shall continue to be due and
payable. The Loan maturity date is hereby extended to August 5, 2009.
4. Modification of Loan Documents.
A. The Note, Security Agreement, Loan Agreement and remaining
Loan Documents are hereby modified to reflect and
incorporate the terms and provisions of the Loan maturity
date extension as described in paragraph 3 above.
B. The terms "Note", "Security Agreement", "Loan Agreement",
and all other defined documents as referenced in the Loan
Documents, shall be deemed to mean such documents, as
modified by this Agreement. In addition, this Agreement
shall be deemed to be a Loan Document.
5. Modification Costs. Borrower further agrees to pay to Lender at the
time of the execution of this Agreement, a Loan extension fee in the amount of
$1,500.00.
6. Ratification and Renewal. The Borrower hereby ratifies and renews
its covenants and agreements to pay the Loan in accordance with the terms and
provisions of the Note, as modified by this Agreement; and the Borrower
otherwise hereby ratifies and renews its covenants and agreements to perform,
comply with and be bound by all other terms and provisions of the Note and the
Loan Documents, all as modified by this Agreement. The Borrower also hereby
confirms that the Security Agreement continues to secure repayment of the Note,
as modified by this Agreement. Further, the Borrower covenants and warrants that
each and every provision of the Note and the Loan Documents, as modified by this
Agreement, are in full force and effect and
2
are the lawful and binding obligations of Borrower, enforceable in accordance
with their respective terms.
7. Waiver. The Borrower acknowledges Lender as the owner and holder of
the Note, and the secured party under the Security Agreement, and covenants and
agrees that there are no defenses, set-offs, or counter-claims against Lender,
with respect to the Note and the Loan Documents, as modified by the terms of
this Agreement, or otherwise, or with respect to the Loan or with respect to the
collection or enforcement of any of the same. The parties to this Agreement do
not intend this Agreement to be construed as a novation of the Note.
8. Further Assurances. The parties agree to execute and deliver any and
all instruments and documents reasonably necessary or required from time to time
to effect the terms and intent of this Agreement.
9. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto with respect to the modification of the Loan, and no other
agreement, statement or promise made by any party hereto, or any employee,
officer, agent or attorney of any party hereto, shall be valid or binding.
10. Binding Effect. Each and every of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors, personal representatives and
assigns.
11. Governing Law. This Agreement shall be governed by, construed
under, and interpreted and enforced in accordance with the laws of the
Commonwealth of Virginia, but without regard for Virginia's laws or rules
regarding conflict or choice of laws.
12. Severability. If any term, covenant or condition of this Agreement,
or the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to other persons or circumstances, shall not be
affected hereby, and each term, covenant or condition of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
13. Headings. The captions and headings herein are for convenience of
reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
14. Modification. The terms of this Agreement may not be changed,
waived, discharged or terminated orally, but only by an instrument in writing,
signed by the party against which enforcement of the change, waiver, discharge
or termination is asserted.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together will
constitute one instrument.
3
IN WITNESS WHEREOF, the parties have executed this Loan Modification
Agreement as of the date and year first written above.
BORROWER:
SUTRON CORPORATION, a Virginia corporation
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
Treasurer
COMMONWEALTH OF VIRGINIA )
)
COUNTY OF LOUDOUN ) to-wit:
The foregoing was subscribed and sworn to before me on this 7th day of
August, 2008, by Xxxxxx X. Xxxxxx, as treasurer of Sutron Corporation, a
Virginia corporation, on behalf of the corporation.
/s/ Kira X. X. Xxxxxx
-------------------------
Notary Public
My Commission Expires: November 30, 2009
[signature of Lender on following page]
4
LENDER:
BRANCH BANKING AND TRUST COMPANY,
a North Carolina banking corporation
By: /s/ Xxx x. Xxxx
----------------------------
Xxx X. Xxxx
Assistant Vice President
COMMONWEALTH OF VIRGINIA )
)
COUNTY OF FAIRFAX ) to-wit:
The foregoing instrument was acknowledged before me this 7th day of
August, 2008, by Xxx X. Xxxx, as assistant vice president of Branch Banking and
Trust Company, a North Carolina banking corporation, on behalf of the
corporation.
/s/ Kira X. X. Xxxxxx
----------------------------
Notary Public
My Commission Expires: November 30, 2009
5
