NOTE AND LOAN MODIFICATION AGREEMENT
EXHIBIT
10.19
Loan
#9531605184-00006
NOTE AND LOAN MODIFICATION
AGREEMENT
THIS NOTE AND LOAN MODIFICATION
AGREEMENT (“Agreement”) is made and effective as of September 2, 2009, by and
between SUTRON CORPORATION, a Xxxxxxx 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”).
RECITALS
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 the same amount of the Loan (as
subsequently modified, the “Note”), (ii) that certain first lien Security
Agreement of the same date executed by the Borrower for the benefit of the
Lender (as subsequently modified, the “Security Agreement”), and (iii) that Loan
Agreement and Schedule DD thereto, each of the same date executed by the
Borrower and the Lender (as subsequently modified, collectively, 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 Loan Modification Agreement
and Release of Guarantors dated as of August 5, 2005, the Lender and Borrower
agreed to inter
alia, to (i)
increase the principle 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, as defined therein, from their obligations under the Guaranty,
as defined therein; 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 (i) increase
the principal amount of the Loan to Three Million and no/100 Dollars
($3,000,000.00), (ii) extend the maturity date of the Loan, and (iii) amend
Schedule DD to the Loan Agreement; and
WHEREAS, by Loan Modification Agreement
dated as of August 4, 2008, the Lender and Borrower agreed, inter alia, to extend the
maturity date of the Loan; and
WHEREAS, the Borrower has requested
that Lender (i) further extend the maturity date of the Loan; and (ii) make
certain other modifications to the Loan terms; and
WHEREAS,
the Lender has agreed to grant Borrower’s request, subject 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:
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1.
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Recitals. The
above recitals are incorporated herein and made a part
hereof.
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2.
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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. The maximum principle
amount of the note is
$3,000,000.00
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3.
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Interest Rate.
Interest shall continue to accrue under the Note on the outstanding
balance at a floating rate equal to Lender’s Prime Rate (as defined in the
Note), as in effect from time to time; provided, however, that
such interest rate will not decrease below fixed minimum rate of
3.50%.
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4.
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Note Payments/Maturity
Date. Commencing September 5, 2009 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,
2010.
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5.
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Schedule GC to Loan
Agreement. Schedule DD to the Loan Agreement is hereby deleted in
it’s entirety and replaced with that certain Amended and Restated Schedule
“GC” to BB&T Loan Agreement dated of even date herewith and attached
hereto as Exhibit
A.
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6.
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Modification of Loan
Documents.
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A.
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The
Note, Security Agreement, Loan Agreement and remaining Loan Documents are
hereby modified to reflect and incorporate the terms and provisions of the
Loan modifications as described in paragraphs 3 thorough 5
above.
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B.
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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.
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7.
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Modification
Costs. Borrower further agrees to pay the Lender at the time of the
execution of this Agreement, a Loan extension fee in the amount of
$1,500.000.
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8.
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Ratification and
Renewal. The Borrower hereby ratifies and renews it’s 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 Loan Documents, as
modified by this Agreement, are in full force and effect and are the
lawful and binding obligations of Borrower, enforceable in accordance with
their respective terms.
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9.
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Waiver. The
Borrower acknowledges Lender as the owner and holder of the Note, and the
secured party under 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.
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10.
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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.
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2
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11.
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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.
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12.
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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.
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13.
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14.
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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.
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15.
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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.
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16.
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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.
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17.
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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.
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SIGNATURES
ON FOLLOWING PAGES
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IN
WITNESS WHEREOF, the parties have executed this Note and Loan Modification
Agreement as of the date and year first written above.
| BORROWER: | |||
| SUTRON CORPORATION, a Virginia corporation | |||
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By:
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/s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx | |||
| Treasurer | |||
| COMMONWEALTH OF VIRGINIA | ) | |||
| ) to-wit: | ||||
| COUNTY OF LOUDON | ) |
The
foregoing was subscribed and sworn to before me on
this 2nd day of September, 2009, by
Xxxxxx X. Xxxxxx, as Treasurer of SUTRON CORPORATION, a Virginia corporation, on
behalf of the corporation.
Notary
Public /s/ Xxxxxxx X. Xxxxx
My
Commission Expires: Jan 31, 2011
Notary
Registration No.: 127916
[signature
of Lender of following page]
| LENDER: | |||
| BRANCH BANKING AND TRUST COMPANY, a | |||
| North Carolina banking corporation | |||
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By:
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/s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx | |||
| Senior Vice President | |||
| COMMONWEALTH OF VIRGINIA | ) | |||
| ) to-wit: | ||||
| COUNTY OF FAIRFAX | ) |
The foregoing instrument was
acknowledged before this 2nd day of September,
2009, by Xxxxxxx X. Xxxxx, as Senior Vice President of BRANCH BANKING AND TRUST
COMPANY, a North Carolina banking corporation, on behalf of the
corporation.
Notary
Public /s/ Xxxxxxx House
My
Comission Expires: April 30, 2010
Notary
Registration No.: 7046994
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