UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (or Date of Earliest Event Reported): December 29, 2009
THE GOLDFIELD CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 1-7525 | 88-0031580 | ||
|
(State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(IRS Employer Identification No.) |
|
1684 West Hibiscus Blvd. Melbourne, FL |
32901 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (321) 724-1700
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
Southeast Power Loan Agreement
On December 29, 2009, Southeast Power Corporation (“Southeast Power”), a wholly owned subsidiary of The Goldfield Corporation (the “Company”), and Branch Banking & Trust Company (“BB&T”) executed a $3,825,000 Promissory Note and related ancillary agreements to provide financing for additional equipment purchases and to refinance existing debt outstanding under a Loan Agreement among Southeast Power, the Company and BB&T dated July 13, 2006 (the “Southeast Power Loan Agreement”). The Southeast Power Loan Agreement was concurrently amended to apply to the new Promissory Note and to limit advances on the purchase of new equipment to 80% of the purchase price. The Company and Pineapple House of Brevard, Inc. (“PHBI”), a wholly owned subsidiary of the Company, agreed to guarantee Southeast Power’s obligations under any and all notes, draft, debts, obligations or liabilities or agreements evidencing any such indebtedness, obligation or liability including all renewals, extensions and modifications thereof.
Under the Southeast Power Loan Agreement, as amended, BB&T agreed to make a loan available to Southeast Power up to a maximum principal amount of $3.825 million, subject to the terms and conditions set forth therein. The proceeds of the Loan will be used by Southeast Power to refinance existing term debt thereunder and to fund the purchase of additional equipment to be owned by Southeast Power. The Company has drawn down all of the available funds under the Southeast Power Loan Agreement.
The Promissory Note will mature, and all amounts due to BB&T under the Southeast Power Loan Agreement and the related Promissory Note, will be due and payable in full on December 29, 2014. Southeast Power must make monthly payments of interest to BB&T in arrears on the principal balance outstanding until March 2010, and thereafter, Southeast Power must pay monthly installments of principal, in addition to interest on the principal balance outstanding, until maturity. Advances under the Southeast Power Loan Agreement will bear interest at a rate per annum equal to One Month LIBOR (as defined in the Addendum to Promissory Note) plus 2.50%, which will be adjusted monthly. The initial interest rate for advances is 2.7312%.
The obligations of Southeast Power pursuant to the Southeast Power Loan Agreement and the Promissory Note are secured by the grant of a continuing security interest in the equipment financed or paid for with proceeds from the Note, including all accessions thereto, all manufacturer’s warranties therefor, and all parts and tools therefor, as more specifically described in the Security Agreement between Southeast Power and BB&T dated December 29, 2009, and all proceeds (cash and non-cash) and products thereof in any form.
The Southeast Power Loan Agreement, as amended, and the related Promissory Note include covenants and agreements that are customary for loan agreements and promissory notes of this type, including provisions which accelerate the repayment of outstanding amounts in the event of a material default under the Promissory Note, which include, among others: a failure to pay interest or principal when due or fully perform any other obligation or covenant; a finding that any financial statement or other representation made to BB&T is materially incorrect or incomplete; a failure to provide adequate security in respect of Southeast Power’s obligations
under the Promissory Note, as determined by BB&T; the initiation of any proceeding under bankruptcy or insolvency laws by or against, or the attachment or seizure of any of the assets of, Southeast Power, the Company or PHBI; and a good faith determination by BB&T that the prospect of payment or other performance under the Promissory Note is impaired. In addition, at BB&T’s option, BB&T may treat any default in payment or performance by Southeast Power, the Company or any of their subsidiaries or affiliates under any other loans, contracts or agreements with BB&T or its affiliates as a default under the Southeast Power Loan Agreement.
Renewal and Modification of Working Capital Loan Agreement
On December 29, 2009, the Company and BB&T entered into a Note Modification Agreement to effect the renewal and modification of a $3.0 million Loan Agreement (the “Working Capital Loan”) entered into by the parties on March 14, 2006, renewed on August 26, 2006, September 27, 2007, and again on November 25, 2008, which was due and payable in full on January 28, 2010, as extended by BB&T on November 27, 2009. Pursuant to the loan renewal and modification the Working Capital Loan will mature and all amounts due thereunder will be due and payable in full on December 28, 2010, unless extended by BB&T at its discretion. The Working Capital Loan provides the Company with a line of credit to be used for working capital, capital expenditures and general corporate purposes.
Pursuant to the loan renewal and modification described above (the “Loan Renewal”), until the Working Capital Loan matures, the Company must make monthly payments of interest to BB&T in arrears at interest rates determined and upon the terms and conditions as set forth in the Loan Renewal. Advances under the Loan Renewal will bear interest at a rate per annum equal to One Month LIBOR (as defined in the Loan Renewal), which will be adjusted monthly plus 1.80%. The interest rate will not decrease below a minimum rate of 3.50%. All of the other terms of the Working Capital Loan and related ancillary agreements remain unchanged and are described in the Company’s previously filed Current Reports on Form 8-K filed on September 1, 2005, March 20, 2006, October 2, 2006, September 28, 2007 and November 25, 2008.
The foregoing description of the Loan Renewal does not purport to summarize all of the provisions of this document and is qualified in its entirety by reference to the Note Modification Agreement and Addendum to Promissory Note filed as Exhibit 10-6 to this Current Report on Form 8-K, and to the description of the Working Capital Loan in the Company’s Current Reports on Form 8-K filed on September 1, 2005, March 20, 2006, October 2, 2006, September 28, 2007 and November 25, 2008 and the related exhibits thereto, and each of the foregoing is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
As described above in Item 1.01 under the heading “Southeast Power Loan Agreement,” Southeast Power and BB&T executed a Promissory Note and other ancillary agreements to provide financing for additional equipment purchases and to refinance existing term debt. The Loan documents filed as Exhibit 10-1, Exhibit 10-2, Exhibit 10-3, Exhibit 10-4 and Exhibit 10-5 to this Current Report on Form 8-K, the description of the Southeast Power Loan Agreement in the Company’s Current Report on 8-K filed on July 18, 2006, and the related exhibits thereto, are incorporated herein by reference.
As described above in Item 1.01 under the heading “Renewal and Modification of Working Capital Loan Agreement,” the Company and BB&T entered into a renewal and modification of the Working Capital Loan. The Note Modification Agreement and Addendum to Promissory Note Working Capital Loan filed as Exhibit 10-6 to this Current Report on Form 8-K, the description of the Working Capital Loan in the Company’s Current Reports on Form 8-K filed on September 1, 2005, March 20, 2006, October 2, 2006, September 28, 2007 and
Item 9.01. Financial Statements and Exhibits.
|
Exhibit |
Description of Exhibit |
|
| 10-1 | Promissory Note of Southeast Power Corporation relating to Loans of up to $3.825 million | |
| 10-2 | Addendum to July 13, 2006 Loan Agreement | |
| 10-3 | BB&T Security Agreement, dated December 29, 2009, between Southeast Power Corporation and Branch Banking and Trust Company and Attachment “A” to the BB&T Security Agreement dated December 29, 2009 | |
| 10-4 | Guaranty Agreement, dated December 29, 2009, between The Goldfield Corporation and Branch Banking and Trust Company | |
| 10-5 | Guaranty Agreement, dated December 29, 2009, between Pineapple House of Brevard, Inc. and Branch Banking and Trust Company | |
| 10-6 | Note Modification Agreement of Revolving Line of Credit Promissory Note of The Goldfield Corporation relating to Loans of up to $3.0 million and Addendum to Promissory Note | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: January 5, 2010
| T HE G OLDFIELD C ORPORATION | ||
|
By: |
/ S / S TEPHEN R. W HERRY |
|
| Stephen R. Wherry | ||
|
Senior Vice President, Chief Financial Officer (Principal Financial and Accounting Officer), Treasurer and Assistant Secretary |
||
EXHIBIT INDEX
|
Exhibit No. |
Description |
|
| 10-1 | Promissory Note of Southeast Power Corporation relating to Loans of up to $3.825 million | |
| 10-2 | Addendum to July 13, 2006 Loan Agreement | |
| 10-3 | BB&T Security Agreement, dated December 29, 2009, between Southeast Power Corporation and Branch Banking and Trust Company and Attachment “A” to the BB&T Security Agreement dated December 29, 2009 | |
| 10-4 | Guaranty Agreement, dated December 29, 2009, between The Goldfield Corporation and Branch Banking and Trust Company | |
| 10-5 | Guaranty Agreement, dated December 29, 2009, between Pineapple House of Brevard, Inc. and Branch Banking and Trust Company | |
| 10-6 | Note Modification Agreement of Revolving Line of Credit Promissory Note of The Goldfield Corporation relating to Loans of up to $3.0 million and Addendum to Promissory Note | |
Exhibit 10-1
PROMISSORY NOTE
Borrower: Southeast Power Corporation
Account Number: 9660933120
Address: 1684 W Hibiscus Blvd. Melbourne, Fl 32901
Note Number: 00003
Date: December 29, 2009
THE UNDERSIGNED REPRESENTS THAT THE LOAN EVIDENCED HEREBY IS BEING OBTAINED FOR BUSINESS/COMMERCIAL OR AGRICULTURAL PURPOSES. For value received, the undersigned, jointly and severally, if more than one, promises to pay to BRANCH BANKING AND TRUST COMPANY , a North Carolina banking corporation (the “Bank”), or order, at any of Bank’s offices in the above referenced city (or such other place or places as may be hereafter designated by Bank), the sum of THREE MILLION EIGHT HUNDRED TWENTY FIVE THOUSAND 00/100 Dollars ($3,825,000.00), in immediately available coin or currency of the United States of America.
| ¨ | Borrower shall pay a prepayment penalty as set forth in the Addendum attached hereto. |
Interest shall accrue from the date hereof on the unpaid principal balance outstanding from time to time at the:
| ¨ | Fixed Rate of % per annum. |
| ¨ | Variable rate of the Bank’s Prime Rate plus % per annum to be adjusted % as the Bank’s Prime Rate changes. If checked here ¨ , the interest rate will not exceed a(n) ¨ fixed ¨ average maximum rate of % or a ¨ floating maximum rate of the greater of % or the Bank’s Prime Rate; and the interest rate will not decrease below a fixed minimum rate of %. If an average maximum rate is specified, a determination of any required reimbursement of interest by Bank will be made: ¨ when Note is repaid in full by Borrower ¨ annually beginning on . |
| ¨ | Fixed rate of % per annum through which automatically converts on to a variable rate equal to the Bank’s Prime Rate plus % per annum which shall be adjusted as such Prime Rate changes. |
| x | The Adjusted LIBOR rate, as defined in the attached Addendum to the Promissory Note. |
Principal and Interest are payable as follows:
| ¨ | Principal (plus any accrued interest not otherwise scheduled herein) is due in full maturity on. |
| ¨ | Principal Plus accrued interest is due in full at maturity on . |
| ¨ | Payable in consecutive monthly installments of ¨ Principal ¨ Principal and interest commencing on and continued on the same day of each calendar period thereafter, in equal payments of $ , with one final payment of all remaining principal and accrued interest due on . |
| ¨ | Choice Line Payment Option: 2% of outstanding balance is payable monthly commencing on and continuing on the same day of each month thereafter, with on final payment of all remaining principal and accrued interest due on . |
| ¨ | Accrued interest is payable commencing on and continuing on the same day of each calendar period thereafter, with one final payment of all remaining interest due on . |
| ¨ | Bank reserves the right in its sole discretion to adjust the fixed payment due hereunder on and continuing on the same date of each calendar period thereafter, in order to maintain an amortization period of no more than months from the date of the initial principal payment due hereunder. Borrower understands the payment may increase if interest rates increase. |
| ¨ | Prior to an event of default, Borrower may borrow, repay, and reborrow hereunder pursuant to the terms of the Loan Agreement, hereinafter defined. |
| x | See Attachment to BB&T Note Dated 12/29/2009 in the amount of $3,825,000.00 for repayment schedule. |
| ¨ | Borrower hereby authorizes Bank to automatically draft from its demand deposit or savings account(s) with Bank or other bank, any payment(s) due under this Note on the date(s) due. Borrower shall provide appropriate account number(s) for account(s) at Bank or other bank. |
The undersigned shall pay to Bank a late fee in the amount of five percent (5%) of any installment past due for ten (10) or more days. When any installment payment is past due for ten (10) or more days, subsequent payments shall first be applied to the past due balance. In addition, the undersigned shall pay to Bank a returned payment fee if the undersigned or any other obligor hereon makes any payment at any time by check or other instrument, or by any electronic means, which is returned to Bank because of nonpayment due to nonsufficient funds.
All interest shall be computed and charged for the actual number of days elapsed on the basis of a year consisting of three hundred sixty (360) days. In the event periodic accruals of interest shall exceed any periodic fixed payment amount described above, the fixed payment amount shall be immediately increased, or additional supplemental interest payments required on the same periodic basis as specified above (increased fixed payments or supplemental payments to be determined in the Bank’s sole discretion), in such amounts and at such times as shall be necessary to pay all accruals of interest for the period and all accruals of unpaid interest from previous periods. Such adjustments to the fixed payment amount or supplemental payments shall remain in effect for so long as the interest accruals shall exceed the original fixed payment amount and shall be further adjusted upward or downward to reflect changes in the variable interest rate; provided that unless elected otherwise above, the fixed payment amount shall not be reduced below the original
fixed payment amount. However, Bank shall have the right, in its sole discretion, to lower the fixed payment amount below the original payment amount.
This note (“NOTE”) is given by the undersigned in connection with the following agreements (if any) between the undersigned and the Bank:
Mortgage(s) granted in favor of Bank as mortgagee:
| ¨ | dated in the maximum principal amount of $ granted by . |
| ¨ | Florida documentary stamp tax in the amount of $ have been affixed to the Mortgage securing this Promissory Note. |
| ¨ | Florida documentary stamp tax required by law in the amount of $ has been or will be paid directly to the Florida Department of Revenue. Certificate of Registration No. 56-1074313-19-001. |
|
¨ |
This loan is a renewal and increase of | Account # / Note # / . | ||
| Account # / Note # / . |
| x | Florida Documentary Stamp Tax is not required. |
Security Agreement(s) granting a security interest to Bank:
| ¨ | dated , given by . |
| ¨ | Securities Account Pledge and Security Agreement dated , executed by |
.
|
¨ |
Control Agreement(s) dated , covering | ¨ Deposit Account(s) | ¨ Investment Property | |||
| ¨ Letter of Credit Rights | ¨ Electronic Chattel Paper |
| ¨ | Assignment of Certificate of Deposit, Security Agreement, and Power of Attorney (for Certificated Certificates of Deposit) dated , executed by . |
| ¨ | Pledge and Security Agreement for Publicly Traded Certificated Securities dated , executed by . |
| ¨ | Assignment of Life Insurance Policy as Collateral dated , executed by . |
| x | Loan Agreement dated JULY 13 2006 , executed by Borrower and ¨ Guarantor(s). |
Addendum to Loan Agreement dated 12/29/2009
| ¨ | . |
.
The above - described documents executed in connection with this Note are hereinafter collectively referred to as the “Agreement”.
No delay or omission on the part of the holder in exercising any right hereunder shall operate as a waiver of such right or of any other right of such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or waiver of the same or of any other right on any future occasion. Every one of the undersigned and every endorser or guarantor of this note regardless of the time, order or place of signing waives presentment, demand, protest and notices of every kind and assents to any one or more extensions or postponements of the time of payment or any other indulgences, to any substitutions, exchanges or releases of collateral if at any time there be available to the holder of collateral for this note, and to the additions or releases of any other parties or persons primarily or secondarily liable.
The failure to pay any part of the principal or interest when due on this Note or to fully perform any covenant, obligation or warranty on this or on any other liability to the Bank by any one or more of the undersigned, by any affiliate of the undersigned (as defined in 11 USC Section (101) (2)), or by any guarantor or surety of this Note (said affiliate, guarantor, or surety are herein called Obligor); or if any financial statement or other representation made to the Bank by any of the undersigned or any Obligor shall be found to be materially incorrect or incomplete; or if any of the undersigned shall fail to furnish information to the Bank sufficient to verify the identity of the undersigned as required under the USA Patriot Act; or in the event of a default under any of the Agreements or any other obligation of any of the undersigned or any Obligor; or in the event the Bank demands that the undersigned secure or provide additional security for its obligations under this Note and security deemed adequate and sufficient by the Bank is not given when demanded; or in the event one or more of the undersigned or any Obligor shall die, terminate its existence, allow the appointment of a receiver for any part of its property, make an assignment for the benefit of creditors, or where a proceeding under bankruptcy or insolvency laws is initiated by or against any of the undersigned or any Obligor; or in the event the Bank should otherwise deem itself, its security interest, or any collateral unsafe or insecure; or should the Bank in good faith believe that the prospect of payment or other performance is impaired; or if there is an attachment, execution, or other judicial seizure of all or any portion of the Borrower’s or any Obligor’s assets, including an action or proceeding to seize any funds on deposit with the Bank, and such seizure is not discharged within 20 days; or if final judgment for the payment of money shall be rendered against the Borrower or any Obligor which is not covered by insurance or debt cancellation and shall remain undischarged for a period of 30 days unless such judgment or execution thereon is effectively stayed; or the termination of any guaranty agreement given in connection with this Note, then any one of the same shall be a material default hereunder and this Note and other debts due the Bank by any one or more of undersigned shall immediately become due and payable at the option of the Bank without notice or demand of any kind, which are hereby waived. From and after any event of default hereunder, interest shall accrue on the sum of the principal balance and accrued interest then outstanding at the variable rate equal to the Bank’s Prime Rate plus 5% per annum (“Default Rate”) until such principal and interest have been paid in full, provided that such rate shall not exceed at any time the highest rate of interest permitted by the laws of the State of Florida; and further provided that such rate shall also apply after judgement. In addition, upon default, the Bank may pursue its full legal remedies at law or equity, and the balance due hereunder may be charged against any obligation of the Bank to any party including any Obligor. Bank shall not be obligated to accept any check, money order,
or other payment instrument marked “payment in full” on any disputed amount due hereunder, and Bank expressly reserves the right to reject all such payment instruments. Borrower agrees that tender of its check or other payment instrument so marked will not satisfy or discharge its obligation under this Note, disputed or otherwise, even if such check or payment instrument is inadvertently processed by Bank unless in fact such payment is in fact sufficient to pay the amount due hereunder.
WAIVER OF TRIAL BY JURY. UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS OR CLAIMS ARISING OUT OF THIS NOTE OR ANY LOAN DOCUMENT EXECUTED IN CONNECTION HEREWITH OR OUT OF THE CONDUCT OF THE RELATIONSHIP BETWEEN THE UNDERSIGNED AND BANK. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOAN EVIDENCED BY THIS NOTE. FURTHER, THE UNDERSIGNED HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT SEEK TO ENFORCE THIS WAIVER OR RIGHT TO JURY TRIAL PROVISION IN THE EVENT OF LITIGATION, NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION.
Unless otherwise required under a Loan Agreement, if applicable, and as long as any indebtedness evidenced by this Note remains outstanding or as long as Bank remains obligated to make advances, the undersigned shall furnish annually an updated financial statement in a form satisfactory to Bank, which, when delivered shall be the property of the Bank.
The term “Prime Rate,” if used herein, means the rate of interest per annum announced by the Bank from time to time and adopted as its Prime Rate. The Prime Rate is one of several rate indexes employed by the Bank when extending credit, and not necessarily the lowest rate. Any change in the interest rate resulting from a change in the Bank’s Prime Rate shall become effective as of the opening of business on the effective date of the change. If this Note is placed with an attorney for collection, the undersigned agrees to pay, in addition to principal, interest and late fees, if any, all costs of collection, including but not limited to reasonable attorneys’ fees. All obligations of the undersigned and of any Obligor shall bind his heirs, executors, administrators, successors, and/or assigns. Use of the masculine pronoun herein shall include the feminine and the neuter, and also the plural. If more than one party shall execute this Note, the term “undersigned” as used herein shall mean all the parties signing this Note and each of them, and all such parties shall be jointly and severally obligated hereunder. Wherever possible, each provision of this Note shall be interpreted in such a manner to be effective and valid under applicable law, but if any provision of this Note shall be prohibited by or invalid under such law, such provision shall be ineffective but only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note. All of the undersigned hereby waive all exemptions and homestead laws as may be permitted by Florida law. The proceeds of the loan evidenced by this Note may be paid to any one or more of the undersigned.
From time to time the maturity date of this Note may be extended, or this Note may be renewed in whole or in part, or a new note of different form may be substituted for this Note, or the rate of interest may be modified, or changes may be made in consideration of loan extensions, and the holder hereof, from time to time may waive or surrender, either in whole or in part any rights, guaranties, secured interest, or liens, given for the benefit of the holder in connection with the payment and the securing the payment of this Note; but no such occurrence shall in any manner affect, limit, modify, or otherwise impair any rights, guaranties or security of the holder not specifically waived, released, or surrendered in writing, nor shall the undersigned, or any obligor, either primarily or contingently, be released by reason of the occurrence of any such event. The holder hereof, from time to time, shall have the unlimited right to release any person who might be liable hereon, and such release shall not affect or discharge the liability of any other person who is or might be liable hereon. No waivers and modifications shall be Valid unless in writing and signed by the Bank. The Bank may, at its option, charge any fees for the modification, renewal, extension, or amendment of any of the terms of the Note permitted by the laws of the state of Florida. In case of a conflict between the terms of this Note and the Loan Agreement or Commitment Letter issued in connection herewith, the priority of controlling terms shall be first this Note, then the Loan Agreement, and then the Commitment Letter. This Note shall be governed by and construed in accordance with the laws of Florida.
(SIGNATURES ON FOLLOWING PAGE)
PROMISSORY NOTE SIGNATURE PAGE
Borrower: Southeast Power Corporation
Account Number: 9660933120
Note Amount: $3,825,000.00
Note Number: 00003
Date: December 29, 2009
Notice of Right to Copy of Appraisal: If a 1-4 family residential dwelling is pledged as collateral for this Agreement, you, the undersigned, have a right to copy of the real estate appraisal report used in connection with your application for credit. You must forward your request to the Bank no later than 90 days after the date of this Agreement. In your request letter, please provide your name, mailing address, appraised property address, the date of this Agreement, and the account and note numbers shown on the front of this Agreement.
IN WITNESS WHEREOF, THE UNDERSIGNED, on the day and year first written above, has caused this instrument to be executed under seal.
| Witness: | Borrower: | |||||
| Southeast Power Corporation | ||||||
| (Name of Corporation) | ||||||
|
/s/ Barry Forbes |
By: |
/s/ Stephen R Wherry |
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| Print Name: Barry Forbes | Stephen R Wherry, Its Treasurer | |||||
|
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| Print Name: | ||||||
ATTACHMENT TO BB&T NOTE
| Account Number: 9660933120 | ||||
| Note Number: 00003 |
This Attachment to BB&T Promissory Note date December 29, 2009 in the amount of $3,825,000.00 between Branch Banking And Trust Company, as Bank, and Southeast Power Corporation as Borrower, and is hereby incorporated into and made a part of such Promissory Note as though fully set forth therein.
I. Repayment terms of this attachment to promissory note are as follows:
Interest Paid in 60 Monthly payments starting on 01/29/2010.
Principal paid in 9 Monthly payments of $55,000.00 starting on 04/29/2010
Principal paid in 12 Monthly payments of $60,000.00 starting on 01/29/2011
Principal paid in 36 Monthly payments of $72,500.00 starting on 01/29/2012
II. Mortgage(s) granted in favor of Bank as beneficiary:
| ¨ | dated in the maximum principal amount of $ |
granted by .
| ¨ | dated in the maximum principal amount of $ |
granted by .
| ¨ | dated in the maximum principal amount of $ |
granted by .
III. Security Agreement(s) conveying a security interest in favor of Bank:
| ¨ | dated given by |
.
| ¨ | dated given by |
.
| ¨ | dated given by |
.
IV. Additional Agreements, Assignments, Pledges or other security instruments:
| ¨ |
| ¨ |
| ¨ |
| ¨ |
IN WITNESS WHEREOF, the undersigned, on the day and year first written above, has caused this Note to be executed under seal.
| Witness: | Borrower: | |||||
| Southeast Power Corporation | ||||||
|
/s/ Barry Forbes |
By: |
/s/ Stephen R Wherry |
||||
| Print Name: Barry Forbes | Stephen R Wherry, Its Treasurer | |||||
|
|
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| Print Name: | ||||||
ADDENDUM TO PROMISSORY NOTE
THIS ADDENDUM TO PROMISSORY NOTE (“Addendum”) is hereby made a part of the Promissory Note dated December 29, 2009 from Southeast Power Corporation (“Borrower”) payable to the order of Branch Banking and Trust Company (“Bank”) in the principal amount of $ 3,825,000.00 (including all renewals, extensions, modifications and substitutions therefore, the “Note”).
| I. | DEFINITIONS |
| 1.1 | Adjusted LIBOR Rate means a rate of interest per annum equal to the sum obtained (rounded upwards, if necessary, to the next higher 1/100th of 1.0%) by adding (i) the One Month LIBOR plus (ii) 2.500 % per annum, which shall be adjusted monthly on the first day of each LIBOR Interest Period. The Adjusted LIBOR Rate shall be adjusted for any change in the LIBOR Reserve Percentage so that Bank shall receive the same yield. |
| 1.2 | One Month LIBOR means the average rate (rounded upwards, if necessary, to the next higher 1/100th of 1.0%) quoted on Bloomberg Screen BBAM1 or Page 3750 (or such replacement page) of the Telerate Service on the determination date for deposits in U.S. Dollars offered in the London interbank market for one month, or if the above method for determining the One Month LIBOR shall not be available, the rate quoted in The Wall Street Journal, or a rate determined by a substitute method of determination agreed on by Borrower and Bank; provided, if such agreement is not reached within a reasonable period of time (in Bank’s sole judgment), a rate reasonably determined by Bank in its sole discretion as a rate being paid, as of the determination date, by first class banking organizations (as determined by Bank) in the London interbank market for U.S. Dollar deposits. |
| 1.3 | LIBOR Advance means the advances made by Bank to Borrower evidenced by this Note upon which the Adjusted LIBOR Rate of interest shall apply. |
| 1.4 | LIBOR Interest Period means a period of one calendar month as may be elected by the Borrower applicable to any LIBOR Advance which shall begin on first day of any month notwithstanding the maturity date of this Note; provided, however, that a LIBOR Interest Period may be less than one calendar month in and only in the calendar month in which the Note originates or matures. |
| 1.5 | LIBOR Reserve Percentage means the maximum aggregate rate at which reserves (including, without limitation, any marginal supplemental or emergency reserves) are required to be maintained under Regulation D by member banks of the Federal Reserve System with respect to dollar funding in the London interbank market. Without limiting the effect of the foregoing, the LIBOR Reserve Percentage shall reflect any other reserves required to be maintained by such member banks by reason of any applicable regulatory change against (i) any category of liability which includes deposits by reference to which the Adjusted LIBOR Rate is to be determined or (ii) any category of extensions of credit or other assets related to LIBOR. |
| 1.6 | Standard Rate means, for any day, a rate per annum (rounded upwards, if necessary, to the next higher 1/100th of 1.0%) equal to the Bank’s announced Prime Rate minus 0% per annum, and each change in the Standard Rate shall be effective on the date any change in the Prime Rate is publicly announced as being effective. |
| II. | LOAN BEARING ADJUSTED LIBOR RATE |
| 2.1 | Application of Adjusted LIBOR Rate . The Adjusted LIBOR Rate shall apply to the entire principal balance outstanding of a LIBOR Advance for any LIBOR Interest Period. |
| 2.2 | Adjusted LIBOR Based Rate Protections . |
| (a) | Inability to Determine Rate . In the event that Bank shall have determined, which determination shall be final, conclusive and binding, that by reason of circumstances occurring after the date of this Note affecting the London interbank market, adequate and fair means do not exist for ascertaining the One Month LIBOR on the basis provided for in this Note, Bank shall give notice (by telephone confirmed in writing or by telecopy) to Borrower of such determination, whereupon (i) no LIBOR Advance shall be made until Bank notifies Borrower that the circumstances giving rise to such notice no longer exist, and (ii) any request by Borrower for a LIBOR Advance shall be deemed to be a request for an advance at the Standard Rate. |
| (b) | Illegality; Impracticability . In the event that Bank shall determine, which determination shall be final, conclusive and binding, that the making, maintaining or continuance of any portion of a LIBOR Advance (i) has become unlawful as a result of compliance by Bank with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any of the same not having the force of law even though the failure to comply therewith would not be unlawful) or (ii) has become impracticable, or would cause Bank material hardship, as a result of contingencies occurring after the date of this Note materially and adversely affect the London interbank market or Bank’s ability to make LIBOR Advances generally, then, and in any such event, Bank shall give notice (by telephone confirmed in writing or by telecopy) to Borrower of such determination. Thereafter, (x) the obligation of Bank to make any LIBOR Advances or to convert any portion of the loan to a LIBOR Advance shall be suspended until such notice shall be withdrawn by Bank, and (y) any request by Borrower for a LIBOR Advance shall be deemed to be a request for an advance at the Standard Rate. |
| Witness: | Borrower: | |||||
| Southeast Power Corporation | ||||||
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/s/ Barry Forbes |
By: |
/s/ Stephen R Wherry |
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| Print Name: Barry Forbes | Stephen R Wherry, Its Treasurer | |||||
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| Print Name: | ||||||
Exhibit 10-2
Addendum to Loan Agreement
Dated
July 13, 2006
The Agreement dated July 13, 2006 (Loan Agreement) between Branch Banking and Trust Company (Bank), Southeast Power Corporation (Borrower) and The Goldfield Corporation (Guarantor) is to also apply to a new Loan evidenced by a credit promissory note dated December 29, 2009, in the original principal amount of $3,825,000 and renewals and modifications of said note as made from time to time and all Loan Documents associated with said note.
All other terms are to remain the same as stated in the original Loan Agreement with the exception of the advance rate on the purchases of new equipment with the proceeds of the note for advances made on or after December 29, 2009 are to be limited to 80% of purchase price rather than the 100% noted in the original Loan Agreement terms.
| Southeast Power Corporation | ||||
| By: |
/s/ Stephen R Wherry |
Date: 12/29/2009 | ||
| Stephen R Wherry, Its Treasurer | ||||
| The Goldfield Corporation | ||||
| By: |
/s/ Stephen R Wherry |
Date: 12/29/2009 | ||
| Stephen R Wherry, Its Senior Vice President | ||||
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/s/ Barry Forbes |
Date: 12/29/2009 | |||
| Branch Banking and Trust Company | ||||
| By | Barry Forbes, Its Senior Vice President | |||
Exhibit 10-3
City: MELBOURNE , FL
BB&T SECURITY AGREEMENT
| This Security Agreement (“Security Agreement”), is made |
December 29, 2009 |
, between | ||
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SOUTHEAST POWER CORPORATION |
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(“Debtor”), and Branch Banking and Trust Company, a North Carolina banking corporation (“Secured Party”).
This Security Agreement is entered into in connection with (check applicable items):
| ¨ | (i) | a Loan Agreement (“Loan Agreement”) dated on or before the date of this Security Agreement under which the Secured Party has agreed to make a loan(s) and/or establish a line(s) of credit; | ||||||
| x | (ii) | a promissory note dated |
12/29/2009 |
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| ACCOUNT# / NOTE# | ||
| 9660933120 0003 | ||
| Page 1 of 6 | ||
| 1476FL (0810) | ||
| ¨ | (ix) | Farm Products, including all crops grown, growing or to be grown, livestock (born and unborn), supplies used or produced in a farming operation, and products of crops and livestock; | ||
| ¨ | (ix-a) | The Farm Products specifically described as follows: | ||
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| ¨ | (x) | As-Extracted Collateral from the following location(s) (list legal description including county and state): | ||
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| ¨ | (xi) | The Letter-of-Credit Rights under the following letter(s) of credit (list issuer, number and amount): | ||
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| ¨ | (xii) | Documents of Title, including all warehouse receipts and bills of lading specifically described as follows: | ||
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| ¨ | (xiii) | Commercial Tort Claim(s) more specifically described as follows: | ||
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| ¨ | (xiv) | Money, including currency and/or rare coins delivered to and in possession of the Secured Party specifically described as follows: | ||
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| ¨ | (xv) | Software specifically described as follows: | ||
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| ¨ | (xvi) | Manufactured Home(s): | ||
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| ¨ | (xvii) | Vehicles, including recreational vehicles and watercraft described below: |
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| 1476FL (0810) | Page 2 of 6 |
| 1476FL (0810) | Page 3 of 6 |
| 5.4 | Business or Agricultural Purpose. None of the Obligations is a Consumer Transaction, as defined in the UCC and none of the Collateral has been or will be purchased or held primarily for personal, family or household purposes. | |||||
| VI. | DEBTORS COVENANTS. | |||||
| Until the Obligations are paid in full, Debtor agrees that it will: | ||||||
| 6.1 | preserve its legal existence and not, in one transaction or a series of related transactions, merge into or consolidate with any other entity, or sell all or substantially all of its assets; | |||||
| 6.2 | not change the Debt or State of its registered organization; | |||||
| 6.3 | not change its registered name without providing Secured Party with 30 days prior written notice; and | |||||
| 6.4 | not change the state of its Place of Business or, if Debtor is an individual, change his state of residence without providing Secured Party with 30 days prior written notice. | |||||
| VII. | EVENTS OF DEFAULT. | |||||
| The occurrence of any of the following shall, at the option of Secured Party, be an Event of Default: | ||||||
| 7.1 | Any default or Event of Default by Borrower or Debtor under the Note, Loan Agreement, Hedge Agreement or any of the other loan documents, and any Guaranty or any of the other Obligations; | |||||
| 7.2 | Debtor’s failure to comply with any of the provisions of, or the incorrectness of any representation or warranty contained in, this Security Agreement, the Note, the Loan Agreement, or in any other document relating to the Obligations; | |||||
| 7.3 | Transfer or disposition of any of the Collateral, except as expressly permitted by this Security Agreement; | |||||
| 7.4 | Attachment, execution or levy on any of the Collateral; | |||||
| 7.5 | Debtor voluntarily or involuntarily becoming subject to any proceeding under (a) the Bankruptcy Code or (b) any similar remedy under state statutory or common law; | |||||
| 7.6 | Debtor shall fail to comply with, or become subject to any administrative or judicial proceeding under any federal, state or local (a) hazardous waste or environmental law, (b) asset forfeiture or similar law which can result in the forfeiture of property, or (c) other law, where noncompliance may have any significant effect on the Collateral; or | |||||
| 7.7 | Secured Party shall receive at any time following the closing a UCC filing report indicating that Secured Party’s security interest is not prior to all other security interests or other interests reflected in the report. | |||||
| VIII. | DEFAULT COSTS. | |||||
| 8.1 | Should an Event of Default occur, Debtor will pay to Secured Party all costs incurred by the Secured Party for the purpose of enforcing its rights hereunder, including: | |||||
| (i) | costs of foreclosure; | |||||
| (ii) | costs of obtaining money damages; and | |||||
| (iii) | a reasonable fee for the service of attorneys employed by Secured Party for any purpose related to this Security Agreement or the Obligations, including without limitation consultation, drafting documents, sending notices or instituting, prosecuting or defending litigation or arbitration. | |||||
| IX. | REMEDIES UPON DEFAULT. | |||||
| 9.1 | General. Upon any Event of Default, Secured Party may pursue any remedy available at law (including those available under the provisions of the UCC), or in equity to collect, enforce or satisfy any Obligations then owing, whether by acceleration or otherwise. | |||||
| 9.2 | Concurrent Remedies. Upon any Event of Default, Secured Party shall have the right to pursue any of the following remedies separately, successively or concurrently: | |||||
| (i) | File suit and obtain judgment and, in conjunction with any action, Secured Party may seek any ancillary remedies provided by law or at equity, including levy of attachment and garnishment. | |||||
| (ii) | Take possession of any Collateral if not already in its possession without demand and without legal process. Upon Secured Party’s demand, Debtor will assemble and make the Collateral available to Secured Party as it directs. Debtor grants to Secured Party the right, for this purpose, to enter into or on any premises where Collateral may be located. | |||||
| (iii) | Without taking possession, sell, lease or otherwise dispose of the Collateral at public or private sale in accordance with the UCC. | |||||
| X. | FORECLOSURE PROCEDURES. | |||||
| 10.1 | No Waiver. No delay or omission by Secured Party to exercise any right or remedy accruing upon any Event of Default shall (a) impair any right or remedy, (b) waive any default or operate as an acquiescence to the Event of Default, or (c) affect any subsequent default of the same or of a different nature. | |||||
| 10.2 | Notices. Secured Party shall give Debtor such notice of any private or public sale as may be required by the UCC. | |||||
| 10.3 | Condition of Collateral. Secured Party has no obligation to repair, clean-up or otherwise prepare the Collateral for sale. | |||||
| 10.4 | No Obligation to Pursue Others. Secured Party has no obligation to attempt to satisfy the Obligations by collecting them from any other person liable for them and Secured Party may release, modify or waive any collateral provided by any other person to secure any of the Obligations, all without affecting Secured Party’s rights against Debtor. Debtor waives any right it may have to require Secured Party to pursue any third person for any of the Obligations. | |||||
| 10.5 | Compliance With Other Laws. Secured Party may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral. | |||||
| 10.6 | Warranties. Secured Party may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title or the like. This procedure will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral. | |||||
| 10.7 | Sales on Credit. If Secured Party sells any of the Collateral upon credit, Debtor will be credited only with payments actually made by the purchaser, received by Secured Party and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Secured Party may resell the Collateral and Debtor shall be credited with the proceeds of the sale as and when received, less expenses. | |||||
| 10.8 | Purchases by Secured Party. In the event Secured Party purchases any of the Collateral being sold, Secured Party may pay for the Collateral by crediting some or all of the Obligations of the Debtor. | |||||
| 1476FL (0810) | Page 4 of 6 |
SIGNATURES ON THE FOLLOWING PAGE
| 1476FL (0810) | Page 5 of 6 |
The parties have signed this Security Agreement under seal as of the day and year first above written.
If Debtor is a Corporation:
If Debtor is a Partnership, Limited Liability Company, Limited Liability Partnership or
Limited Liability Limited Partnership:
| WITNESS: |
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| NAME OF PARTNERSHIP, LLC, LLP OR LLLP | ||||||||
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If Debtor is an Individual:
| WITNESS: |
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TYPE NAME OF DEBTOR | |||||
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(SEAL) | ||||
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| 1476FL (0810) | Page 6 of 6 |
/s/ SRW
Attachment “A”
To the BB&T Security Agreement dated December 29, 2009
All equipment which currently secures the remaining balance of the original $3,500,000 promissory note dated July 13, 2006 along with equipment purchased with the proceeds of new advances from the $3,825,000 note dated December 29, 2009 including equipment purchased prior to December 29, 2009 for which the Borrower will be reimbursed with the proceeds of the Loan.
Exhibit 10-4
GUARANTY AGREEMENT
As an inducement to Branch Banking and Trust Company (“Bank”) to extend credit to and to otherwise deal with Southeast Power Corporation (“Borrower”), and in consideration thereof, the undersigned (and each of the undersigned jointly and severally if more than one) hereby absolutely and unconditionally guarantees to Bank and its successors and assigns the due and punctual payment of any and all notes, drafts, debts, obligations and liabilities, primary or secondary (whether by way of endorsement or otherwise), of Borrower, at any time, now or hereafter, incurred with or held by Bank, together with interest, as and when the same become due and payable, whether by acceleration or otherwise, in accordance with the terms of any such notes, drafts, debts, obligations or liabilities or agreements evidencing any such indebtedness, obligation or liability including all renewals, extensions and modifications thereof. The obligation of the undersigned is a guarantee of payment and not of collection.
The undersigned is Bank’s debtor for all indebtedness, obligations and liabilities for which this Guaranty is made, and Bank shall also at all times have a lien on and security interest in all stocks, bonds and other securities of the undersigned at any time in Bank’s possession and the same shall at Bank’s option be held, administered and disposed of as collateral to any such indebtedness, obligation or liability of the Borrower, and Bank shall also at all times have the right of set-off against any deposit account of the undersigned with Bank in the same manner and to the same extent that the right of set-off may exist against the Borrower.
It is understood that any such notes, drafts, debts, obligations and liabilities may be accepted or created by or with Bank at any time and from time to time without notice to the undersigned, and the undersigned hereby expressly waives presentment, demand, protest, and notice of dishonor of any such notes, drafts, debts, obligations and liabilities or other evidences of any such indebtedness, obligation or liability.
Bank may receive and accept from time to time any securities or other property as collateral for any such notes, drafts, debts, obligations and liabilities, and may surrender, compromise, exchange and release absolutely the same or any part thereof at any time without notice to the undersigned and without in any manner affecting the obligation and liability of the undersigned hereby created. The undersigned agrees that Bank shall have no obligation to protect, perfect, secure or insure any security interests, liens or encumbrances now or hereafter held for the indebtedness, obligations and liabilities for which this Guaranty is made.
This obligation and liability on the part of the undersigned shall be a primary, and not a secondary, obligation and liability, payable immediately upon demand without recourse first having been had by Bank against the Borrower or any other guarantor, person, firm or corporation, and without first resorting to any property held by Bank as collateral security. The undersigned hereby agrees to indemnify the Bank for all costs of collection, including but not limited to the costs of repossession, foreclosure, reasonable attorneys’ fees, and court costs incurred by the Bank in the event that the Bank should first be required by the undersigned to resort to any property held by the Bank or in which the Bank has a security interest or to obtain execution or other satisfaction of a judgment against the Borrower on account of Borrower’s obligation and liability for its indebtedness guaranteed hereby; and the undersigned further agrees that the undersigned is responsible for any obligation or debt, or portion thereof, of the Borrower to the Bank which has been paid by the Borrower to the Bank and which the Bank is subsequently required to return to the Borrower or a trustee for the Borrower in any bankruptcy or insolvency proceeding; and the undersigned further agrees that none of the undersigned shall have any right of subrogation, reimbursement or indemnity whatsoever, nor any right of recourse to security for the debts and obligations of the Borrower to Bank unless and until all of the debts and obligations of the Borrower to Bank have been paid in full. The undersigned hereby waives, to the extent avoidable under any provision of the Bankruptcy Code, any right arising upon payment by the undersigned of any obligation under this Guaranty to assert a claim against the bankruptcy estate of the Borrower.
| 1457VA (0003) | Page 1 of 3 |
Check applicable box:
| x | This Guaranty is unlimited and applies to all indebtedness of Borrower, whether now existing or hereafter arising. |
| ¨ | This Guaranty applies to all indebtedness of Borrower evidenced by its promissory note/line number dated (including all extensions, renewals, and modifications thereof) in the principal amount of $ . |
| ¨ | This Guaranty is limited to an amount of $ plus accrued interest, late fees, costs of collection (including attorneys fees) and all other obligations and indebtedness which may accrue or be incurred with respect to the Borrower’s indebtedness and obligations to Bank. |
To secure the payment of all obligations of the undersigned hereunder, the undersigned hereby grants a security interest and lien in the following goods and property owned by the undersigned:
(“Collateral”).
The undersigned hereby agrees to execute and deliver to Bank any security agreement, deed of trust, mortgage, UCC financing statement, or other document required by the Bank in order to protect its security interest or lien in the Collateral. This document shall constitute a security agreement under the Uniform Commercial Code of Florida (“Code”), and in addition to having all other legal rights and remedies, the Bank shall have all rights and remedies of a secured party under the Code.
This agreement shall inure to the benefit of Bank, its successors and assigns, and the owners and holders of any of the indebtedness, obligations and liabilities hereby guaranteed, and shall remain in force until a written notice revoking it has been received by Bank; but such revocation shall not release the undersigned from liability to Bank, its successors and assigns, or the owners and holders of any of the indebtedness, obligations and liabilities hereby guaranteed, for any indebtedness, obligation or liability of the Borrower which is hereby guaranteed and then in existence or from any renewals, extensions or modifications thereof in whole or in part, whether such renewals, extensions or modifications are made before or after such revocation, with or without notice to the undersigned. The undersigned waives presentment, demand, protest and notices of every kind and assents to any one or more extensions, modifications, renewals or postponements of the time or amount of payment or any other indulgences given to Borrower. The undersigned shall be responsible for and shall reimburse the Bank for all costs and expenses (including reasonable attorneys’ fees) incurred by the Bank in connection with the enforcement of this Guaranty or the protection or preservation of any right or claim of the Bank in connection herewith, including without limitation costs and expenses incurred by the Bank in connection with its attempts to collect the indebtedness, obligations, and liabilities guaranteed hereby.
If the Borrower is a corporation, this instrument covers all indebtedness, obligations and liabilities to Bank purporting to be made or undertaken on behalf of such corporation by any such officer or agent of said corporation without regard to the actual authority of such officer or agent. The term “corporation” shall include associations of all kinds and all purported corporations, whether correctly and legally chartered and organized.
The undersigned covenants, warrants, and represents to the Bank that: (i) this Guaranty is enforceable against the undersigned in accordance with its terms; (ii) the execution and delivery of this Guaranty does not violate or constitute a breach of any agreement to which the undersigned is a party; (iii) that there is no litigation, claim, action or proceeding pending or, to the best knowledge of the undersigned, threatened against the undersigned which would materially adversely affect the financial condition of the undersigned or his ability to fulfill his obligations hereunder; (iv) that the undersigned has knowledge of the Borrower’s financial condition and affairs; and (v) unless otherwise required in a Loan Agreement, if applicable, as long as any Obligations remain outstanding or as long as Bank remains obligated to make advances, the undersigned shall furnish annually an updated financial statement in a form satisfactory to Bank, which, when delivered shall be the property of Bank.
This Guaranty is made in and shall be construed in accordance with the laws and judicial decisions of the State of Florida. The undersigned agree that any dispute arising out of this Guaranty shall be adjudicated in either the state or federal courts of Florida and in no other forum. For that purpose, the undersigned hereby submits to the jurisdiction of the state and/or federal courts of Florida. The undersigned waives any defense that venue is not proper for any action brought in any federal or state court in the State of Florida.
| ACCOUNT #/NOTE # | Initials: /s/ SRW |
| 1457MD (0408) | Page 2 of 3 |
WAIVER OF TRIAL BY JURY . UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS OR CLAIMS ARISING OUT OF THIS GUARANTY OR ANY LOAN DOCUMENT EXECUTED IN CONNECTION HEREWITH OR OUT OF THE CONDUCT OF THE RELATIONSHIP BETWEEN THE UNDERSIGNED AND BANK. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOAN EVIDENCED BY THE NOTE EXECUTED IN CONNECTION HEREWITH. FURTHER, THE UNDERSIGNED HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION IN THE EVENT OF LITIGATION. NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION.
Witness the signature and seal of each of the undersigned.
| GUARANTOR: | ||
| The Goldfield Corporation | ||
| By: |
/s/ Stephen R Wherry |
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| Stephen R. Wherry, Its Senior Vice-President | ||
| STATE OF FLORIDA | ||
| COUNTY OF BREVARD | ||
The foregoing instrument was acknowledged before me this 29 th day of December, 2009, by Stephen R. Wherry as Senior Vice-President for The Goldfield Corporation.
|
/s/ Debra J Pavlakos |
| Signature of Notary Public |
| Name of Notary Public |
Personally Known OR Produced Identification X
Type of Identification Produced Florida Driver License
NOTARY STAMP
| ACCOUNT #/NOTE # | Initials: /s/ SRW |
| 1457MD (0408) | Page 3 of 3 |
Exhibit 10-5
GUARANTY AGREEMENT
As an inducement to Branch Banking and Trust Company (“Bank”) to extend credit to and to otherwise deal with Southeast Power Corporation (“Borrower”), and in consideration thereof, the undersigned (and each of the undersigned jointly and severally if more than one) hereby absolutely and unconditionally guarantees to Bank and its successors and assigns the due and punctual payment of any and all notes, drafts, debts, obligations and liabilities, primary or secondary (whether by way of endorsement or otherwise), of Borrower, at any time, now or hereafter, incurred with or held by Bank, together with interest, as and when the same become due and payable, whether by acceleration or otherwise, in accordance with the terms of any such notes, drafts, debts, obligations or liabilities or agreements evidencing any such indebtedness, obligation or liability including all renewals, extensions and modifications thereof. The obligation of the undersigned is a guarantee of payment and not of collection.
The undersigned is Bank’s debtor for all indebtedness, obligations and liabilities for which this Guaranty is made, and Bank shall also at all times have a lien on and security interest in all stocks, bonds and other securities of the undersigned at any time in Bank’s possession and the same shall at Bank’s option be held, administered and disposed of as collateral to any such indebtedness, obligation or liability of the Borrower, and Bank shall also at all times have the right of set-off against any deposit account of the undersigned with Bank in the same manner and to the same extent that the right of set-off may exist against the Borrower.
It is understood that any such notes, drafts, debts, obligations and liabilities may be accepted or created by or with Bank at any time and from time to time without notice to the undersigned, and the undersigned hereby expressly waives presentment, demand, protest, and notice of dishonor of any such notes, drafts, debts, obligations and liabilities or other evidences of any such indebtedness, obligation or liability.
Bank may receive and accept from time to time any securities or other property as collateral for any such notes, drafts, debts, obligations and liabilities, and may surrender, compromise, exchange and release absolutely the same or any part thereof at any time without notice to the undersigned and without in any manner affecting the obligation and liability of the undersigned hereby created. The undersigned agrees that Bank shall have no obligation to protect, perfect, secure or insure any security interests, liens or encumbrances now or hereafter held for the indebtedness, obligations and liabilities for which this Guaranty is made.
This obligation and liability on the part of the undersigned shall be a primary, and not a secondary, obligation and liability, payable immediately upon demand without recourse first having been had by Bank against the Borrower or any other guarantor, person, firm or corporation, and without first resorting to any property held by Bank as collateral security. The undersigned hereby agrees to indemnify the Bank for all costs of collection, including but not limited to the costs of repossession, foreclosure, reasonable attorneys’ fees, and court costs incurred by the Bank in the event that the Bank should first be required by the undersigned to resort to any property held by the Bank or in which the Bank has a security interest or to obtain execution or other satisfaction of a judgment against the Borrower on account of Borrower’s obligation and liability for its indebtedness guaranteed hereby; and the undersigned further agrees that the undersigned is responsible for any obligation or debt, or portion thereof, of the Borrower to the Bank which has been paid by the Borrower to the Bank and which the Bank is subsequently required to return to the Borrower or a trustee for the Borrower in any bankruptcy or insolvency proceeding; and the undersigned further agrees that none of the undersigned shall have any right of subrogation, reimbursement or indemnity whatsoever, nor any right of recourse to security for the debts and obligations of the Borrower to Bank unless and until all of the debts and obligations of the Borrower to Bank have been paid in full. The undersigned hereby waives, to the extent avoidable under any provision of the Bankruptcy Code, any right arising upon payment by the undersigned of any obligation under this Guaranty to assert a claim against the bankruptcy estate of the Borrower.
| 1457VA (0003) | Page 1 of 3 |
Check applicable box:
| x | This Guaranty is unlimited and applies to all indebtedness of Borrower, whether now existing or hereafter arising. |
| ¨ | This Guaranty applies to all indebtedness of Borrower evidenced by its promissory note/line number dated (including all extensions, renewals, and modifications thereof) in the principal amount of $ . |
| ¨ | This Guaranty is limited to an amount of $ plus accrued interest, late fees, costs of collection (including attorneys fees) and all other obligations and indebtedness which may accrue or be incurred with respect to the Borrower’s indebtedness and obligations to Bank. |
To secure the payment of all obligations of the undersigned hereunder, the undersigned hereby grants a security interest and lien in the following goods and property owned by the undersigned:
(“Collateral”).
The undersigned hereby agrees to execute and deliver to Bank any security agreement, deed of trust, mortgage, UCC financing statement, or other document required by the Bank in order to protect its security interest or lien in the Collateral. This document shall constitute a security agreement under the Uniform Commercial Code of Florida (“Code”), and in addition to having all other legal rights and remedies, the Bank shall have all rights and remedies of a secured party under the Code.
This agreement shall inure to the benefit of Bank, its successors and assigns, and the owners and holders of any of the indebtedness, obligations and liabilities hereby guaranteed, and shall remain in force until a written notice revoking it has been received by Bank; but such revocation shall not release the undersigned from liability to Bank, its successors and assigns, or the owners and holders of any of the indebtedness, obligations and liabilities hereby guaranteed, for any indebtedness, obligation or liability of the Borrower which is hereby guaranteed and then in existence or from any renewals, extensions or modifications thereof in whole or in part, whether such renewals, extensions or modifications are made before or after such revocation, with or without notice to the undersigned. The undersigned waives presentment, demand, protest and notices of every kind and assents to any one or more extensions, modifications, renewals or postponements of the time or amount of payment or any other indulgences given to Borrower. The undersigned shall be responsible for and shall reimburse the Bank for all costs and expenses (including reasonable attorneys’ fees) incurred by the Bank in connection with the enforcement of this Guaranty or the protection or preservation of any right or claim of the Bank in connection herewith, including without limitation costs and expenses incurred by the Bank in connection with its attempts to collect the indebtedness, obligations, and liabilities guaranteed hereby.
If the Borrower is a corporation, this instrument covers all indebtedness, obligations and liabilities to Bank purporting to be made or undertaken on behalf of such corporation by any such officer or agent of said corporation without regard to the actual authority of such officer or agent. The term “corporation” shall include associations of all kinds and all purported corporations, whether correctly and legally chartered and organized.
The undersigned covenants, warrants, and represents to the Bank that: (i) this Guaranty is enforceable against the undersigned in accordance with its terms; (ii) the execution and delivery of this Guaranty does not violate or constitute a breach of any agreement to which the undersigned is a party; (iii) that there is no litigation, claim, action or proceeding pending or, to the best knowledge of the undersigned, threatened against the undersigned which would materially adversely affect the financial condition of the undersigned or his ability to fulfill his obligations hereunder; (iv) that the undersigned has knowledge of the Borrower’s financial condition and affairs; and (v) unless otherwise required in a Loan Agreement, if applicable, as long as any Obligations remain outstanding or as long as Bank remains obligated to make advances, the undersigned shall furnish annually an updated financial statement in a form satisfactory to Bank, which, when delivered shall be the property of Bank.
This Guaranty is made in and shall be construed in accordance with the laws and judicial decisions of the State of Florida. The undersigned agree that any dispute arising out of this Guaranty shall be adjudicated in either the state or federal courts of Florida and in no other forum. For that purpose, the undersigned hereby submits to the jurisdiction of the state and/or federal courts of Florida. The undersigned waives any defense that venue is not proper for any action brought in any federal or state court in the State of Florida.
| ACCOUNT #/NOTE # | Initials: /s/ SRW |
| 1457MD (0408) | Page 2 of 3 |
WAIVER OF TRIAL BY JURY . UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS OR CLAIMS ARISING OUT OF THIS GUARANTY OR ANY LOAN DOCUMENT EXECUTED IN CONNECTION HEREWITH OR OUT OF THE CONDUCT OF THE RELATIONSHIP BETWEEN THE UNDERSIGNED AND BANK. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOAN EVIDENCED BY THE NOTE EXECUTED IN CONNECTION HEREWITH. FURTHER, THE UNDERSIGNED HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION IN THE EVENT OF LITIGATION. NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION.
Witness the signature and seal of each of the undersigned.
| GUARANTOR: | ||
| Pineapple House of Brevard, Inc. | ||
| By: |
/s/ Stephen R. Wherry |
|
| Stephen R. Wherry | ||
| STATE OF FLORIDA | ||
| COUNTY OF BREVARD | ||
The foregoing instrument was acknowledged before me this 29th day of December, 2009, by Stephen R. Wherry as Vice President for Pineapple House of Brevard, Inc.
|
/s/ Debra J Pavlakos |
| Signature of Notary Public |
| Name of Notary Public |
Personally Known OR Produced Identification X
Type of Identification Produced Florida Driver License
NOTARY STAMP
| ACCOUNT #/NOTE # | Initials: /s/ SRW |
| 1457MD (0408) | Page 3 of 3 |
Exhibit 10-6
NOTE MODIFICATION AGREEMENT
Customer Number 9660933082
Note Number 00002
Original Amount of Note $3,000,000.00 Original date 08/26/2005 Modification Amount $3,000,000.00 Modification Date 12/29/2009
This Note Modification Agreement (hereinafter Agreement) is made and entered into this 29 th day of December, 2009, by and between The Goldfield Corporation, maker(s), co-maker(s), endorser(s), or other obligor(s) on the Promissory Note (as defined below), hereinafter also referred to jointly and severally as Borrower(s); Branch Banking and Trust Company, a North Carolina banking corporation, hereinafter referred to as Bank.
Witnesseth: Whereas, Borrower(s) has previously executed a Promissory Note payable to Bank, which Promissory Note includes the original Promissory Note and all renewals, extensions and modifications thereof, collectively “Promissory Note”, said Promissory Note being more particularly identified by description of the original note above; and Borrower(s) and Bank agree that said Promissory Note be modified only to the limited extent as is hereinafter set forth; that all other terms, conditions, and covenants of said Promissory Note remain in full force and effect, and that all other obligations and covenants of Borrower(s), except as herein modified, shall remain in full force and effect, and binding between Borrower(s) and Bank; and Whereas Debtor(s)/Mortgagor(s), if different from Borrower(s), has agreed to the terms of this modification; NOW THEREFORE, in mutual consideration of the premises, the sum of Ten Dollars ($10) and other good and valuable consideration, each to the other parties paid , the parties hereto agree that said Promissory Note is amended as hereinafter described:
| ¨ | Borrower shall pay a prepayment penalty as set forth in the Addendum attached hereto. |
INTEREST RATE, PRINCIPAL AND INTEREST PAYMENT TERM MODIFICATIONS (To the extent no change is made, existing terms continue. Sections not completed are deleted.)
| ¨ | Interest shall accrue from the date hereof on the unpaid principal balance outstanding from time to time at the : |
| ¨ | Fixed Rate of % per annum. |
| ¨ | Variable rate of the Bank’s Prime Rate plus % per annum to be adjusted % as the Bank’s Prime Rate changes. |
| • |
As of the Modification Date, any fixed, floating, or average maximum rate and fixed minimum rate in effect by virtue of the |
| ¨ | Promissory Note(s) are hereby deleted. If checked here, the interest rate will not exceed a(n) fixed average maximum rate of % or a ]floating maximum rate of the greater of % or the Bank’s Prime Rate; and the interest rate will not decrease below a fixed minimum rate of %. If an average maximum rate is specified, a determination of any required reimbursement of interest by Bank will be made: when the Note is repaid in full by Borrower annually beginning on . |
| x | The Adjusted LIBOR rate, as defined in the attached Addendum to Promissory Note. |
| ¨ | Principal and Interest are payable as follows: |
| ¨ | Principal (plus any accrued interest not otherwise scheduled herein) is due in full maturity on . |
| x | Principal Plus accrued interest is due in full at maturity on 12/28/2010. |
| ¨ | Payable in consecutive installments of Principal Principal and interest commencing on |
| ¨ | and continuing on the same day of each month thereafter, with one final payment of all remaining principal and accrued interest due on . |
| x | Accrued interest is payable Monthly, commencing on January 28, 2010 and continuing on the same day of each calendar period thereafter, with one final payment of all remaining interest due on December 28, 2010. |
| ¨ | Bank reserves the right in its sole discretion to adjust the fixed payment due hereunder on and continuing on the same date of each calendar period thereafter, in order to maintain an amortization period of no more than months from the date of this Note. Borrower understands the payment may increase if interest rates increase. |
| ¨ | At the Borrower’s request, the Bank has agreed to readvance the principal amount of $ . The oustanding principal balance under the Promissory Note prior to the readvance is $ , making the total outstanding principal balance now due under the Promissory Note and this Agreement to be $ (“Modification Amount”). |
| ¨ |
.
| ¨ | Borrower hereby authorizes Bank to automatically draft from its demand deposit or savings account(s) with Bank or other bank, any payment(s) due under this Note on the date(s) due. Borrower shall provide appropriate account number(s) for account(s) at Bank or other bank. |
| ¨ | $ principal payment(s) due on |
| ¨ | $ interest payment(s) due on |
is (are) hereby deferred. Payments will resume on according to the schedule contained herein or to the existing schedule (if no other changes are made herein).
| ¨ | No documentary stamp tax is required to be paid on this Agreement as such tax was previously paid on the Promissory Note which this Agreement modifies and extends and which is not increased by this Agreement or on the Mortgage, if any, securing the Promissory Note. |
| ¨ | Florida documentary stamp tax in the amount of $ has been previously paid directly to the Florida Department of Revenue on the Promissory Note modified by this Agreement. Such Note has become secured by collateral described in this Agreement and additional documentary stamp tax in the amount of $ has been or will be paid directly to the Florida Department of Revenue has been or will be paid directly to the Clerk of Court for County, Florida, in connection with the recording of the mortgage securing such Note, as modified by this Agreement. |
| x | Florida Documentary Stamp Tax is not required. |
The Borrower(s) promises to pay Bank, or order, a late fee in the amount of five percent (5%) of any installment past due for ten (10) or more days. Where any installment payment is past due for ten (10) or more days, subsequent payments shall first be applied to the past due balance. In addition, the undersigned shall pay to Bank a returned payment fee if the undersigned or any other obligor hereon makes any payment at any time by check or other instrument, or by any electronic means, which is returned to Bank because of nonpayment due to nonsufficient funds.
| ¨ | COLLATERAL: The Promissory Note, as modified, and the performance of the terms of any agreement or instrument relating to, evidencing, or securing the Promissory Note, as modified, shall be additionally secured by collateral hereinafter described, a new security instrument shall be executed by Borrower(s), and/or Debtor(s) /Grantor(s), and all other steps necessary to perfect or record the Bank’s lien with priority acceptable to Bank shall be taken. |
Deed(s) of Trust / Mortgage(s) granted in favor of Bank as beneficiary / mortgagee:
| ¨ | dated in the maximum principal amount of $ granted by . |
| ¨ | dated in the maximum principal amount of $ granted by . |
Security Agreement(s) granting a security interest to Bank:
| ¨ | dated given by granted by . |
| ¨ | Securities Account Pledge and Security Agreement dated , executed by |
| ¨ | . |
| ¨ | Control Agreement(s) dated , covering Deposit Account(s) Investment Property |
| ¨ | Letter of Credit Rights Electronic Chattel Paper |
| ¨ | Assignment of Certificate of Deposit, Security Agreement, and Power of Attorney (for Certificated Certificates of Deposit) dated , executed by . |
| ¨ | Loan Agreement dated , executed by Borrower and Gurantor(s). |
| ¨ | . |
| ¨ | The Collateral hereinafter described shall be and hereby is deleted as security interest for payment of the aforesaid Promissory Note: |
.
Other: .
If the Promissory Note being modified by this Agreement is signed by more than one person or entity, the modified Promissory Note shall be the joint and several obligation of all signers and the property and liability of each and all of them. It is expressly understood and agreed that this Agreement is a modification only and not a novation. The original obligation of the Borrower(s) as evidenced by the Promissory Note above described is not extinguished hereby. It is also understood and agreed that except for the modification(s) contained herein said Promissory Note, and any other Loan Documents or Agreements evidencing, securing or relating to the Promissory Note and all singular terms and conditions thereof, shall be and remain in full force and effect, This Agreement shall not release or affect the liability of any co-makers, obligors, endorsers or guarantors of said Promissory Note. Borrower and Debtor(s)/Mortgagor(s), if any, jointly and severally consent to the terms of this Agreement, waive any objection thereto, affirm any and all obligations to Bank and certify that there are no defenses or offsets against said obligations or the Bank, including without limitation the Promissory Note. Bank expressly reserves all rights as to any party with right of recourse on the aforesaid Promissory Note.
In the event periodic accruals of interest shall exceed any periodic fixed payment amount described above, the fixed payment amount shall be immediately increased or supplemental interest payments required on the same periodic basis as specified above (increased fixed payments or supplemental payments to be determined in the Bank’s sole discretion), in such amounts and at such times as shall be necessary to pay all accruals of interest for the period and all accruals of unpaid interest from previous periods. Such adjustments to the fixed payment amount or supplemental payments shall remain in effect for so long as any interest accruals shall exceed the original fixed payment amount and shall be further adjusted upward or downward to reflect changes in any variable interest rate based on an index such as the Bank’s Prime Rate; provided that unless elected otherwise above, the fixed payment amount shall not be reduced below the original fixed payment amount. However, Bank shall have the right, in its sole discretion, to lower the fixed payment amount below the original payment amount. Notwithstanding any other provision contained in this agreement, in no event shall the provisions of this paragraph be applicable to any Promissory Note which requires disclosures pursuant to the Consumer Protection Act (Trust-in-Lending Act), 15§ 1601, et seq., as implemented by Regulation Z. Borrower agrees that the only interest charge is the interest actually stated in this Note, and that any loan or origination fee shall be deemed charges rather than interest, which charges are fully earned and non-refundable. It is further agreed that any late charges are not a charge for the use of money but are imposed to compensate Bank for some of the administrative services, costs and losses associated with any delinquency or default under this Note, and said charges shall be fully earned and non-refundable when accrued. All other charges imposed by Bank upon Borrower in connection with this Note and the loan including, without limitation, any commitment fees, loan fees, facility fees, origination fees, discount points, default and late charges, prepayment fees, statutory attorneys’ fees and reimbursements for costs and expenses paid by Bank to third parties or for damages incurred by Bank are and shall be deemed to be charges made to compensate Bank for underwriting and administrative services and costs, other services, and costs or losses incurred and to be incurred by Bank in connection with this Note and the loan and shall under no circumstances be deemed to be charges for the use of money. All such charges shall be fully earned and non-refundable when due. The Bank may, at its option, charge any fees for the modification, renewal, extension, or amendment of any of the terms of the Promissory Note(s) permitted by Florida law.
In the words “Prime Rate”, “Bank Prime Rate”, “BB&T Prime Rate”, “Bank’s Prime Rate” or “BB&T’s Prime Rate” are used in this Agreement, they shall refer to the rate announced by the Bank from time to time as its Prime Rate. The Bank makes loans both above and below the Prime Rate and uses indexes other than the Prime Rate. Prime Rate is/the name given a rate index used by the Bank and does not in itself constitute a representation of any preferred rate or treatment.
Unless otherwise provided herein, it is expressly understood and agreed by and between Borrower(s), Debtor (s) /Mortgagor(s) and Bank that any and all collateral (including but not limited to real property, personal property, fixtures, inventory, accounts, instruments, general intangibles, documents, chattel paper, and equipment) given as security to insure faithful performance by Borrower(s) and any other third party of any and all obligations to Bank, however created, whether now existing or hereafter arising, shall remain as security for the Promissory Note as modified hereby.
It is understood and agreed that if Bank has released collateral herein, it shall not be required or obligated to take any further steps to release said collateral from any lien or security interest unless Bank determines, in its sole discretion, that it may do so without consequence to its secured position and relative priority in other collateral; and unless Borrower(s) bears the reasonable cost of such action. No delay or omission on the part of the Bank in exercising any right hereunder shall operate as a waiver of such right or of any other right of the Bank, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or waiver of the same, or of any other right on any further occasion. Each of the parties signing this Agreement regardless of the time, order or place of signing waives presentment, demand, protest, and notices of every kind, and assents to any one or more extensions or postponements of the time of payment or any other indulgences, to any substitutions, exchanges or releases of collateral if at any time there is available to the Bank collateral for the Promissory Note, as amended, and to the additions or releases of any other parties or persons primarily or secondarily liable. Whenever possible the provisions of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement prohibited by or invalid under such law, such provisions shall be ineffective to the extent of any such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. All rights and obligations arising hereunder shall be governed by and construed in accordance with the laws of the same state which governs the interpretation and enforcement of the Promissory Note.
From and after any event of default under this Agreement, the Promissory Note, or any related mortgage, security agreement or loan agreement, interest shall accrue on the sum of the principal balance and accrued interest then outstanding at the variable rate equal to the Bank’s Prime Rate plus 5% per annurn (“Default Rate”), provided that such rate shall not exceed at any time the highest rate of interest permitted by the laws of the State of Florida; and further that such rate shall apply after judgement. In the event of any default, the then remaining unpaid principal amount and accrued but unpaid interest then outstanding shall bear interest at the Default Rate until such principal and interest have been paid in full. Bank shall not be obligated to accept any check, money order, or other payment instrument marked “payment in full” on any disputed amount due hereunder, and
Bank expressly reserves the right to reject all such payment instruments. Borrower agrees that tender of its check or other payment instrument so marked will not satisfy or discharge its obligation under this Note, disputed or otherwise, even if such check or payment instrument is inadvertently processed by Bank unless in fact such payment is in fact sufficient to pay the amount due hereunder.
WAIVER OF TRIAL BY JURY. UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS OR CLAIMS ARISING OUT OF THIS AGREEMENT, THE PROMISSORY NOTE OR ANY LOAN DOCUMENT EXECUTED IN CONNECTION HEREWITH OR OUT OF THE CONDUCT OF THE RELATIONSHIP BETWEEN THE UNDERSIGNED AND BANK. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOAN EVIDENCED BY THE PROMISSORY NOTE AND THIS AGREEMENT. FURTHER, THE UNDERSIGNED HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT SEEK TO ENFORCE THIS WAIVER OR RIGHT TO JURY TRIAL PROVISION IN THE EVENT OF LITIGATION. NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS PROVISION,
Unless otherwise required under a Loan Agreement, if applicable, and as long as any indebtedness evidenced by this Promissory Note, as modified by this Agreement remains outstanding or as long as Bank remains obligated to make advances, the undersigned shall furnish annually an updated financial statement in a form satisfactory to Bank, which, when delivered shall be the property of the Bank. Further, the undersigned agree to provide any and all documentation requested by the Bank in order to verify the identity of the undersigned in accordance with the USA Patriot Act.
(SIGNATURES ON FOLLOWING PAGE)
NOTE MODIFICATION SIGNATURE PAGE
Borrower: The Goldfield Corporation
Account Number: 9660933082
Modification Amount: $3,000,000.00
Note Number: 00002
Modification Date: 12/29/2009
Notice of Right to Copy of Appraisal: If a 1-4 family residential dwelling is pledged as collateral for this Agreement, you, the undersigned, have a right to copy of the real estate appraisal report used in connection with your application For credit. You must forward your request to the Bank no later than 90 days after the date of this Agreement. In your request letter, please provide your name, mailing address, appraised property address, the date of this Agreement, and the account and note numbers shown on the front of this Agreement.
IN WITNESS WHEREOF, THE UNDERSIGNED, on the day and year first written above, has caused this instrument to be executed under seal.
|
WITNESS: |
The Goldfield Corporation | |||||||
|
By: |
/s/ Barry Forbes |
By: |
/s/ Stephen R. Wherry |
|||||
| Barry Forbes, SVP | Stephen R. Wherry, Its Senior Vice-President | |||||||
ADDENDUM TO PROMISSORY NOTE
THIS ADDENDUM TO PROMISSORY NOTE (“Addendum”) is hereby made a part of the Note Modification Agreement dated December 29, 2009 from The Goldfield Corporation (“Borrower”) payable to the order of Branch Banking and Trust Company (“Bank”) in the principal amount of $ 3,000,000.00 (including all renewals, extensions, modifications and substitutions therefore, the “Note”).
| I. | DEFINITIONS |
| 1.1 | Adjusted LIBOR Rate means a rate of interest per annum equal to the sum obtained (rounded upwards, if necessary, to the next higher 1/100th of 1.0%) by adding (i) the One Month LIBOR plus (ii) 1.80 % per annum, which shall be adjusted monthly on the first day of each LIBOR Interest Period. The Adjusted LIBOR Rate shall be adjusted for any change in the LIBOR Reserve Percentage so that Bank shall receive the same yield. The interest rate shall not decrease below a minimum rate of 3.50%. |
| 1.2 | One Month LIBOR means the average rate (rounded upwards, if necessary, to the next higher 1/100th of 1.0%) quoted on Bloomberg Screen BBAM1 or Page 3750 (or such replacement page) of the Telerate Service on the determination date for deposits in U.S. Dollars offered in the London interbank market for one month, or if the above method for determining the One Month LIBOR shall not be available, the rate quoted in The Wall Street Journal, or a rate determined by a substitute method of determination agreed on by Borrower and Bank; provided, if such agreement is not reached within a reasonable period of time (in Bank’s sole judgment), a rate reasonably determined by Bank in its sole discretion as a rate being paid, as of the determination date, by first class banking organizations (as determined by Bank) in the London interbank market for U.S. Dollar deposits. |
| 1.3 | LIBOR Advance means the advances made by Bank to Borrower evidenced by this Note upon which the Adjusted LIBOR Rate of interest shall apply. |
| 1.4 | LIBOR Interest Period means a period of one calendar month as may be elected by the Borrower applicable to any LIBOR Advance which shall begin on first day of any month notwithstanding the maturity date of this Note; provided, however, that a LIBOR Interest Period may be less than one calendar month in and only in the calendar month in which the Note originates or matures. |
| 1.5 | LIBOR Reserve Percentage means the maximum aggregate rate at which reserves (including, without limitation, any marginal supplemental or emergency reserves) are required to be maintained under Regulation D by member banks of the Federal Reserve System with respect to dollar funding in the London interbank market. Without limiting the effect of the foregoing, the LIBOR Reserve Percentage shall reflect any other reserves required to be maintained by such member banks by reason of any applicable regulatory change against (i) any category of liability which includes deposits by reference to which the Adjusted LIBOR Rate is to be determined or (ii) any category of extensions of credit or other assets related to LIBOR. |
| 1.6 | Standard Rate means, for any day, a rate per annum (rounded upwards, if necessary, to the next higher 1/100th of 1.0%) equal to the Bank’s announced Prime Rate minus 0% per annum, and each change in the Standard Rate shall be effective on the date any change in the Prime Rate is publicly announced as being effective. |
| II. | LOAN BEARING ADJUSTED LIBOR RATE |
| 2.1 | Application of Adjusted LIBOR Rate . The Adjusted LIBOR Rate shall apply to the entire principal balance outstanding of a LIBOR Advance for any LIBOR Interest Period. |
| 2.2 | Adjusted LIBOR Based Rate Protections . |
| (a) | Inability to Determine Rate . In the event that Bank shall have determined, which determination shall be final, conclusive and binding, that by reason of circumstances occurring after the date of this Note affecting the London interbank market, adequate and fair means do not exist for ascertaining the One Month LIBOR on the basis provided for in this Note, Bank shall give notice (by telephone confirmed in writing or by telecopy) to Borrower of such determination, whereupon (i) no LIBOR Advance shall be made until Bank notifies Borrower that the circumstances giving rise to such notice no longer exist, and (ii) any request by Borrower for a LIBOR Advance shall be deemed to be a request for an advance at the Standard Rate. |
| (b) | Illegality; Impracticability . In the event that Bank shall determine, which determination shall be final, conclusive and binding, that the making, maintaining or continuance of any portion of a LIBOR Advance (i) has become unlawful as a result of compliance by Bank with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any of the same not having the force of law even though the failure to comply therewith would not be unlawful) or (ii) has become impracticable, or would cause Bank material hardship, as a result of contingencies occurring after the date of this Note materially and adversely affect the London interbank market or Bank’s ability to make LIBOR Advances generally, then, and in any such event, Bank shall give notice (by telephone confirmed in writing or by telecopy) to Borrower of such determination. Thereafter, (x) the obligation of Bank to make any LIBOR Advances or to convert any portion of the loan to a LIBOR Advance shall be suspended until such notice shall be withdrawn by Bank, and (y) any request by Borrower for a LIBOR Advance shall be deemed to be a request for an advance at the Standard Rate. |
| Witness: | Borrower: | |||||||
| The Goldfield Corporation | ||||||||
|
/s/ Barry Forbes |
By: |
/s/ Stephen R Wherry |
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| Print Name: Barry Forbes | Stephen R Wherry, Its Senior Vice President | |||||||
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| Print Name: | ||||||||