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 (Date of Earliest Event Reported): July 15, 2005
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THE GOLDFIELD CORPORATION |
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(Exact Name of Registrant as Specified in its Charter) |
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Delaware |
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(State or Other Jurisdiction of Incorporation) |
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1-7525 |
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88-0031580 |
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
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1684 W. Hibiscus Boulevard, Melbourne, Florida |
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32901 |
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(Address of Principal Executive Offices) |
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(Zip Code) |
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(321) 724-1700 |
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(Registrant’s Telephone Number, Including Area Code) |
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Not Applicable |
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(Former Name or Former Address, if Changed Since Last Report) |
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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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Item 1.01 – Entry Into a Material Definitive Agreement.
Executive Compensation Matters
On March 14, 2006, the Board of Directors of The Goldfield Corporation (“Goldfield” or the “Company”) approved the actions of the Compensation Committee of the Board of Directors set forth below with regard to the compensation of John H. Sottile, Chairman, President and Chief Executive Officer of Goldfield, Robert L. Jones, President of Southeast Power Corporation, Goldfield’s electrical construction subsidiary (“Southeast Power”), and Stephen R. Wherry, Vice President, Treasurer and Chief Financial Officer of Goldfield, the executive officers who were named in the Summary Compensation Table of Goldfield’s 2005 Proxy Statement and who are expected to be named in the Summary Compensation Table of Goldfield’s 2006 Proxy Statement.
Annual Incentive Compensation Earned in 2005. The Compensation Committee recommended to the Board of Directors, and the Board of Directors approved, an annual cash bonus award in the amount of $209,212.28 for Mr. Sottile, $207,323.33 for Mr. Jones and $52,500.00 for Mr. Wherry, in each case earned during 2005 and paid in 2006, pursuant to The Goldfield Corporation Performance-Based Bonus Plan. The bonus awards approved for Mr. Sottile and Mr. Wherry were earned based upon the Compensation Committee’s assessment of the level of performance of each of these officers with respect to the performance measures established in and for 2005. The bonus award approved for Mr. Jones was also earned based upon the Compensation Committee’s assessment of the level his performance with respect to the performance measures established for him in and for 2005, and includes an additional bonus amount of $35,000 which was recommended by the Compensation Committee on a discretionary basis, based on the performance of Mr. Jones in 2005. The Board of Directors also approved bonuses aggregating $511,411.77 for payment to certain other officers of the Company’s subsidiaries, including a bonus of $370,287.30 to be paid to an officer of the Company’s real estate subsidiary, which were recommended by the Compensation Committee.
Annual Incentive Compensation to be Earned in 2006. The Compensation Committee recommended to the Board of Directors, and the Board of Directors approved, bonus opportunities for Mr. Sottile, Mr. Jones and Mr. Wherry for 2006, in accordance with the provisions of Goldfield’s Performance-Based Bonus Plan, which are consistent with those in effect for 2005. Mr. Sottile will have the opportunity to earn a bonus award up to a maximum of 50% of his base salary, and his bonus will be dependent upon the increase in Goldfield’s share price in 2006, the increase in Goldfield’s net income in 2006 and his overall executive performance in 2006, a non-quantitative factor incorporating an evaluation by the Compensation Committee of Mr. Sottile’s leadership, strategic planning, relationship management and human
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resources management. Mr. Jones will have the opportunity to earn a bonus award, which will be calculated as a percentage of the pre-tax earnings of Southeast Power, subject to adjustment for certain specified items, and will not be dependent upon any other factors. Mr. Wherry will have the opportunity to earn a bonus award up to a maximum of 30% of his base salary, and his bonus will be dependent upon the increase in Goldfield’s net income in 2006 and his overall executive performance in 2006, a non-quantitative factor incorporating an evaluation by the Compensation Committee of Mr. Wherry’s contributions with respect to financial management, Goldfield’s reporting and internal controls and other compliance initiatives.
2006 Base Salary Increases. The Compensation Committee recommended to the Board of Directors, and the Board of Directors approved, an increase in the base salary of Mr. Wherry from $175,000 to $185,500, effective January 1, 2006. In addition, in accordance with the terms of his employment contract, effective January 1, 2006, Mr. Sottile’s base salary was increased by an amount equal to the percentage increase over the preceding twelve months in the Consumer Price Index for all urban consumers, which resulted in a revised base salary of $432,716.51. Previously, on July 15, 2005, the Compensation Committee recommended to the Board of Directors, and the Board of Directors approved, an increase in the base salary of Mr. Jones from $105,000 to $120,000, effective July 18, 2005. No further action was taken with respect to his base salary on March 14, 2006.
Goldfield will provide additional compensation information regarding the compensation paid to each of the named executives for the 2005 fiscal year in Goldfield’s proxy statement for the 2006 Annual Meeting of Shareholders, which is expected to be filed with the Securities and Exchange Commission in April 2006.
Director Compensation
Increase in Director Compensation. On December 13, 2005, the Board of Directors approved the following changes to the compensation of the non-employee directors, effective January 1, 2006. The chairman of the Audit Committee and of the Compensation Committee will receive an annual cash retainer payment of $3,500, payable in monthly installments. Non-employee directors will receive $500 for attendance at a committee meeting by telephone. All committee members will receive $500 for attendance at a committee meeting in person and $250 for attendance at a committee meeting by telephone.
Amendment of Loan Agreement
On March 14, 2006, Goldfield, the Company’s wholly owned subsidiaries, Southeast Power, Bayswater Development Corporation (“Bayswater”), Pineapple House of Brevard, Inc. (“Pineapple House”) and Oak Park of Brevard, Inc. (“Oak Park”), and Branch Banking and Trust Company (the “Bank”), entered into an amendment to a Loan Agreement entered into by the parties on August 26, 2005, which provided the Company with a line of credit to be used for working capital, capital expenditures and general corporate purposes (the “Working Capital Loan”), and related ancillary agreements, including guarantees of the Working Capital Loan by the Company’s subsidiaries named above (the “Ancillary Loan Documents”). Pursuant to the amendment, the maximum principal amount of the Working Capital Loan was increased from $1.0 million to $3.0 million, and new Ancillary Loan Documents were entered into to reflect the increased principal amount. All of the other terms of the Working Capital Loan and the Ancillary Loan Documents remain unchanged and are described in the Company’s previously filed Current Report on Form 8-K dated August 26, 2005.
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The foregoing description of the Amendment to Working Capital Loan and the Ancillary Loan Documents does not purport to summarize all of the provisions of these documents and is qualified in its entirety by reference to the Amendment to the Working Capital Loan filed as Exhibit 10-1 and the Ancillary Loan Documents filed as Exhibit 10-2 and Exhibit 10-3 to this Current Report on Form 8-K, and to the Company’s Current Report on Form 8-K dated August 26, 2005 and the exhibits thereto, and each of the foregoing is incorporated herein by reference.
Guarantee of Equipment and Vehicle Leases
On March 14, 2006, the Company entered into an Unconditional Guarantee (the “Guarantee”) pursuant to which the Company has unconditionally guaranteed the obligations of Southeast Power under a series of vehicle and equipment leases which Southeast Power has entered into or may enter into with Branch Banking and Trust Leasing Corporation (the “Lessor”). The maximum liability of the Company to the Lessor under the Guarantee is $1.5 million, which corresponds to the maximum value of leased property which Southeast Power may lease from the Lessor under this arrangement at any time. In general, the leases entered into by Southeast Power will require it to make monthly lease payments, maintain the leased property in good condition and repair and provide insurance thereon, among other customary covenants and agreements. Furthermore, a default by Southeast Power under any of its other obligations to the Lessor, including the guarantee provided in connection with the Working Capital Loan described above, will result in a default under each lease. Southeast Power’s monthly payment obligations under the leases will vary depending upon the vehicles or equipment that are under lease at any given time. Concurrent with the Company’s delivery of the Guarantee, Southeast Power entered into a lease for two vehicles with an aggregate value of approximately $100,000.
The foregoing description of the Guarantee and the lease agreements do not purport to summarize all of the provisions of such documents and is qualified in its entirety by reference to the Guarantee filed as Exhibit 10-4 and the Form of Lease filed as Exhibit 10-5 to this Current Report on Form 8-K, which are 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 “Amendment of Loan Agreement,” the Company and its wholly owned subsidiaries named above and the Bank entered into an amendment to the Working Capital Loan and the Ancillary Loan Documents, in order to increase the maximum principal amount of the Working Capital Loan. The amendment to the Working Capital Loan filed as Exhibit 10-1 and the Ancillary Loan Documents filed as Exhibit 10-2 and Exhibit 10-3 to this Current Report on Form 8-K, and the Company’s Current Report on Form 8-K dated August 26, 2005 and the exhibits thereto, are incorporated herein by reference.
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As described above in Item 1.01 under the heading “Guarantee of Vehicle and Equipment Leases,” Goldfield has agreed to guarantee Southeast Power’s obligation under a series of vehicle and equipment leases. The Guarantee is filed as Exhibit 10-4 and the Form of Lease is filed as Exhibit 10-5 to this Current Report on Form 8-K, and each is incorporated herein by reference.
Item 9.01 - Financial Statements and Exhibits.
(d) Exhibits.
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Description |
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Exhibit 10-1 |
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Amendment to Loan Agreement, dated March 14, 2006, among The Goldfield Corporation, Southeast Power Corporation, Bayswater Development Corporation, Pineapple House of Brevard, Inc. and Oak Park of Brevard, Inc. and Branch Banking and Trust Company Relating to Loans of up to $3.0 million |
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Exhibit 10-2 |
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Renewal Revolving Line of Credit Promissory Note of The Goldfield Corporation relating to Loans of up to $3.0 million |
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Exhibit 10-3 |
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Form of Guaranty |
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Exhibit 10-4 |
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Unconditional Guaranty of The Goldfield Corporation, dated March 14, 2006, relating to Leases of up to $1.5 million. |
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Exhibit 10-5 |
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Form of Lease Agreement |
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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 hereunto duly authorized.
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THE GOLDFIELD CORPORATION |
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By: |
/s/ Stephen R. Wherry |
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Name: |
Stephen R. Wherry |
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Dated: March 20, 2006 |
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Vice President, Chief Financial Officer
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Description |
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Exhibit 10-1 |
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Exhibit 10-2 |
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Exhibit 10-3 |
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Exhibit 10-4 |
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Exhibit 10-5 |
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EXHIBIT 10-1
AMENDMENT TO LOAN AGREEMENT
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Branch Banking and Trust Company |
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1300 South Babcock Street |
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Melbourne, Florida 32901 |
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(Hereinafter referred to as the “Bank”) |
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The Goldfield Corporation, |
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A Delaware corporation |
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1684 West Hibiscus Blvd. |
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Melbourne, Florida 32901 |
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(Hereinafter referred to as the “Borrower”) |
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Southeast Power Corporation, |
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Bayswater Development Corporation, |
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a Florida corporation |
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a Florida corporation |
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1684 West Hibiscus Blvd. |
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1684 West Hibiscus Blvd. |
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Melbourne, Florida 32901 |
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Melbourne, Florida 32901 |
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Pineapple House of Brevard, Inc., |
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Oak Park of Brevard, Inc., |
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a Florida corporation |
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a Florida corporation |
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1684 West Hibiscus Blvd. |
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1684 West Hibiscus Blvd. |
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Melbourne, Florida 32901 |
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Melbourne, Florida 32901 |
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(Individually and collectively “Guarantor”) |
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This Amendment to Loan Agreement (“Agreement”) is entered into March 14, 2006 by and between Bank, Borrower, and Guarantor.
RECITALS
A. Borrower and Bank entered into a loan (herein “ Loan One ”) evidenced by that certain Revolving Line of Credit Promissory Note executed by Borrower in favor of the Bank dated August 26, 2005, in the original principal amount of $1,000,000.00 (herein “ Note One ”).
B. Borrower and Bank also agreed to and entered into that certain Loan Agreement dated August 26, 2005 (the “ Loan Agreement ”) (to which this Amendment is appended) setting forth the covenants, agreements, representations and warranties as the terms upon which the Bank is willing to extend credit to Borrower.
C. Borrower has requested an increase to the principal amount of Loan One so that Loan One shall be in the aggregate principal amount of $3,000,000.00. Accordingly, Borrower and Guarantor have requested Bank to amend the provision in Note One (and in any other Loan Document) limiting the amount which may be borrowed and re-borrowed from time to time, from the principal amount of $1,000,000.00 to the principal amount of $3,000,000.00.
NOW, THEREFORE, in consideration of the premises and the mutual agreements, covenants and conditions herein, Borrower and Bank agree as follows:
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The above Recitals are hereby incorporated by reference. |
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The Bank hereby amends the provision in Note One that limits the principal amount the amount of $1,000,000.00 that may be borrowed and re-borrowed from time to time, from the principal sum of $1,000,000.00 to the principal sum of $3,000,000.00. |
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The terms of Note One are hereby renewed and modified in their entirety as evidenced by that certain Renewal Revolving Line of Credit Promissory Note (herein “ Renewal Promissory Note ”) in the principal amount of $3,000,000.00, dated March 14, 2006, which has a maturity date of August 26, 2006. Note One as renewed and modified in its entirety by the Renewal Promissory Note is herein collectively referred to as the “ Promissory Note ” or “ Note ”. All references in the Loan Agreement dated August 26, 2005 to the term “Note” shall now refer to Note One, as renewed and modified in its entirety by the Renewal Promissory Note. |
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That said Note, Loan Agreement (as amended), and other Loan Documents are in full force and effect with respect to each and every term and provision and nothing herein contained shall in any manner impair the liability of the Borrower thereunder. |
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That the Guarantor hereby joins in the execution hereof for the purpose of agreeing to be bound by the terms and conditions hereof. |
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That all of the other stipulations, terms, provisions, covenants and agreements as contained in the aforesaid Note, Loan Agreement (as amended), and other Loan Documents shall remain in full force and effect except as herein provided to the contrary or modified in conjunction herewith. |
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This agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto. |
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“BORROWER” |
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THE GOLDFIELD CORPORATION, |
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a Delaware corporation |
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By: |
/s/ Stephen R. Wherry |
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STEPHEN R. WHERRY |
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Treasurer |
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“GUARANTOR” |
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SOUTHEAST POWER CORPORATION, |
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a Florida corporation |
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By: |
/s/ Stephen R. Wherry |
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STEPHEN R. WHERRY |
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Treasurer |
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PINEAPPLE HOUSE OF BREVARD, INC., |
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a Florida corporation |
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By: |
/s/ Stephen R. Wherry |
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STEPHEN R. WHERRY |
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Treasurer |
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BAYSWATER DEVELOPMENT CORPORATION, |
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a Florida corporation |
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By: |
/s/ Stephen R. Wherry |
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STEPHEN R. WHERRY |
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Treasurer |
Page 2
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OAK PARK OF BREVARD, INC., |
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a Florida corporation |
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By: |
/s/ Stephen R. Wherry |
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STEPHEN R. WHERRY |
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Treasurer |
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“BANK” |
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BRANCH BANKING AND TRUST COMPANY |
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By: |
/s/ Barry Forbes |
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BARRY FORBES |
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Senior Vice President |
Page 3
EXHIBIT 10-2
RENEWAL REVOLVING LINE OF CREDIT
PROMISSORY NOTE
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$3,000,000.00 |
March 14, 2006 |
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Orlando, Florida |
FOR VALUE RECEIVED, the undersigned, THE GOLDFIELD CORPORATION, a Delaware corporation (“ Maker ”) promises to pay to the order of BRANCH BANKING AND TRUST COMPANY (hereinafter called the “ Bank ” or, together with any other holder of this Note, the “ Holder ”) or order, at its place of business at 1300 South Babcock Street, Melbourne, Florida 32901, or at such other place as the Holder of this Note may designate in writing, the principal sum of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00), together with interest thereon at the Interest Rate, in lawful money of the United States, which shall be legal tender in payment of all debts and dues, public and private, at the time of said payment, said principal and interest to be payable as set forth below.
1. INTEREST RATE . The Interest Rate shall equal the adjusted LIBOR Rate, as defined below:
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a. Adjusted LIBOR Rate means a rate of interest per annum equal to the sum obtained (rounded upwards, if necessary, to the next higher 1/100 th of 1.0%) by adding (i) the One Month LIBOR plus (ii) one and eight one-tenths percent ( 1.800% ) per annum, which shall be adjusted monthly on the first day of each month for each LIBOR Interest Period. If the first day of any month falls on a date when the Bank is closed, the Adjusted LIBOR Rate shall be determined as of the last preceding business day. 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 exceed a fixed maximum rate of 99.000% and will not decrease below a minimum rate of 0.00% . |
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b. One Month LIBOR means the average rate (rounded upwards, if necessary, to the next higher 1/100 th of 1.0%) quoted on Bloomberg Screen MMR2 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 LIBOR shall not be available, the rate quoted in The Wall Street Journal , 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 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. |
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c. LIBOR Advance means the term loan advances made by Bank to Borrower evidenced by this Note upon which the adjusted LIBOR Rate of interest shall apply. |
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d. 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. |
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e. 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. |
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f. Standard Rate means, for any day, a rate per annum (rounded upwards, if necessary to the next higher 1/100 th of 1.0%) equal to the Bank’s announced Prime Rate, 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. |
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g. Application of Adjusted LIBOR Rate. The adjusted LIBOR Rate shall apply to the entire principal balance outstanding of a term loan for any LIBOR Interest Period. |
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h. Adjusted LIBOR Based Rate Protections . |
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(i) 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 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 (a) no LIBOR Advance shall be made until Bank notifies Borrowers that the circumstances giving rise to such notice no longer exist, and (b) any request by Borrowers for a LIBOR Advance shall be deemed to be a request for an advance at the Standard Rate. |
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(ii) 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 (a) 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 (b) 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. |
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i. Interest Calculation . 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. |
2. MATURITY DATE . August 26, 2006.
3. PAYMENTS . Interest at the Interest Rate on the principal balance of the indebtedness outstanding from time to time shall be payable beginning on March 26, 2006, and shall be payable on the 26 th day of each successive month thereafter until the Maturity Date at which time all unpaid principal and interest shall be payable in full.
4. RIGHT TO SETOFF . Holder is given a lien upon and a security interest in all property of the undersigned now or at any time hereafter in the possession of Holder in any capacity whatsoever, including but not limited to any balance or share of any deposit, certificate of deposit, trust or agency account, as security for the payment of this Note and the Holder is hereby authorized to apply, on or after maturity (whether by a acceleration or otherwise) to the payment of this debt any such funds or property in possession of the Holder belonging to each Obligor, in such order of application as Holder may from time to time elect, without advance notice.
5. DEFAULT RATE . This Note and all sums due hereunder shall bear interest from the date when due (without any prior notice from Holder to Maker or any Obligor), whether by lapse of time or on acceleration, and also after any judgment which may be entered against any Obligor and in favor of Holder, at the Default Rate (as hereinafter defined) until paid. The Default Rate shall be a rate of interest equal to the Bank’s Prime Rate plus 5% per annum.
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6. INTEREST LIMITATION . Anything in this Note or any other agreements or arrangements with the undersigned in connection with the loan evidenced by this Note to the contrary notwithstanding, in no event shall the amount of interest due hereunder, together with all amounts reserved, charged, or taken by Holder as compensation for fees, services, or expenses incidental to the making, negotiation or collection of the loan evidenced hereby, which are deemed to be interest under applicable law, exceed the maximum rate of interest on the unpaid principal balance hereof allowed from time to time by applicable law. If any sum is collected in excess of the applicable maximum rate of interest, the excess sum collected shall be applied to reduce the principal debt or be refunded to Maker, at Holder’s option.
7. CONSENT AND WAIVER . Each Obligor (which term shall mean and include each Borrower, Maker, Guarantor, and all others who may become liable for all or any part of the obligations evidenced and secured hereby), does hereby, jointly and severally: (a) consent to any forbearance or extension of the time or manner of payment hereof and to the release of all or any part of any security held by the Holder to secure payment of this Note and to the subordination of the lien of the mortgage and any other instrument of security securing this Note as to all or any part of the property encumbered thereby, all without notice to or consent of that party; (b) agree that no course of dealing or delay or omission or forbearance on the part of the Holder in exercising or enforcing any of its rights or remedies hereunder or under any instrument securing this Note shall impair or be prejudicial to any of the Holder’s rights and remedies hereunder or to the enforcement hereof and that the Holder may extend, modify or postpone the time and manner of payment and performance of this Note and any instrument securing this Note, may grant forbearances and may release, wholly or partially, any security held by the Holder as security for this Note and release, partially or wholly, any person or party primarily or secondarily liable with respect to this Note, all without notice to or consent by any party primarily or secondarily liable hereunder and without thereby releasing, discharging or diminishing its rights and remedies against any other party primarily or secondarily liable hereunder; (c) waive notice of acceptance of this Note, notice of the occurrence of any default hereunder or under any instrument securing this Note and presentment, demand, protest, notice of dishonor and notice of protest and notices of any and all action at any time taken or omitted by the Holder in connection with this Note or any instrument securing this Note and waives all requirements necessary to hold that party to the liability of that party; (d) waive any “venue privilege” and/or “diversity of citizenship privilege” which they have now or have in the future, and do hereby specifically agree, notwithstanding the provision of any state or federal law to the contrary, that the venue for the enforcement, construction or interpretation of this Note shall be the County Court, Circuit Court or Federal Court selected by the Holder hereof and they do hereby specifically waive the right to sue or be sued in the court of any other county in the State of Florida, any court in any other state or country or in any federal court, or in any state or federal administrative tribunal.
8. ATTORNEYS’ FEES . All parties liable for the payment of this Note agree to pay the Holder in addition to the principal, premium and interest due and payable hereon, reasonable paralegal fees, attorneys’ fees and costs, whether or not an action be brought, for the services of counsel employed after maturity or default to collect this Note or any principal or interest due hereunder, or to protect the security, if any, or enforce the performance of any other agreement contained in this Note or in any instrument of security executed in connection with the loan evidenced hereby, including, but not limited to costs, paralegal fees and attorneys’ fees and costs on any trial, or appellate proceedings, or in any proceedings under the United States Bankruptcy Code or in any post judgment proceedings.
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9. EVENTS OF DEFAULT . 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 11USC 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 judgment. 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.
10. ACCELERATION . If a default or Event of Default shall occur hereunder and such default shall continue for ten (10) days then at the option of the Holder, the entire principal sum then remaining unpaid together with any premiums and accrued interest shall immediately become due and payable without notice or demand, and said principal and premiums shall bear interest from such date at the highest legal rate permitted by law, from time to time, to be charged by Holder, it being agreed that interest not paid when due shall, at the option of the Holder, draw interest at the rate provided for in this paragraph. Failure to exercise the above options shall not constitute a waiver of the right to exercise the same in the event of any subsequent default. If this Note is payable upon demand, then no terms or provisions contained in this paragraph shall be deemed or interpreted to alter or abrogate the demand nature of this Note or the rights of Holder under a demand instrument.
11. OTHER REMEDIES . If a default or an Event of Default shall occur Holder shall have in addition to its remedies under this Note, Loan Agreement, and/or any other instrument securing or executed in conjunction with the loan evidenced hereby and applicable law all the remedies of a secured party under the Uniform Commercial Code of the State of Florida and, without limiting the generality of the foregoing, Holder shall have the right, at its option, and without notice or demand, to declare the entire amount of this Note remaining unpaid, and all other liabilities selected by Holder, immediately due and payable, less any unearned interest or other charges and any rebates required by law (it being the intention hereof that under no circumstances shall Holder be entitled to receive at any time any charges not allowed or permitted by law or any interest in excess of the maximum allowed by law); to set off against this Note all money owed by Holder in any capacity to the undersigned or any guarantor hereof, whether or not due; and Holder shall be deemed to have exercised such right of setoff and to have made a charge against any such money immediately upon the occurrence of such default even though such charge is made or entered in the books of Holder subsequent thereto. Upon disposition of any collateral after the occurrence of any default, undersigned shall be and remain liable for any deficiency; and Holder shall account to undersigned for any surplus, but Holder shall have the right to apply all or any part of such surplus (or to hold the same as a reserve) against any and all other liabilities of undersigned to Holder.
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12. FLORIDA LAW . This Note is executed under seal and constitutes a contract under the laws of the State of Florida, and shall be enforceable in a Court of competent jurisdiction in that State, regardless of in which State this Note is being executed.
13. HEADINGS . The headings of the paragraphs contained in this Note are for convenience of reference only and do not form a part hereof and in no way modify, interpret or construe the meaning of the parties hereto.
14. DOCUMENTARY STAMPS . Documentary stamps in the amount required by Florida Law have been purchased and affixed to this Note.
15. LATE CHARGE . The undersigned promises to pay to the Holder of this Note a “late charge” not to exceed an amount equal to five per cent (5%) of any principal or interest which is not paid within ten (10) days from the due date thereof to cover the extra expense involved in handling delinquent payments. Collection or acceptance by Holder of such late charge shall not constitute a waiver of any remedies of Holder provided herein. 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.
16. MISCELLANEOUS .
(a) The term “Maker”, as used herein, in every instance shall include the Maker’s heirs, executors, administrators, successors, legal representatives and assigns, and shall denote the singular and/or plural, the masculine and/or feminine, and natural and/or artificial persons whenever and wherever the context so requires or admits.
(b) This Note may not be changed orally, but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.
All payments made on the indebtedness evidenced by this Note shall be applied first to repayment of monies paid or advanced by Holder on behalf of the Maker in accordance with the terms of the Mortgage securing this Note, and thereafter shall be applied to payment of accrued interest, and lastly to payment of principal.
In the event there is any conflict in the terms and conditions of this Note and the Loan Agreement and other Loan Documents executed by the Borrower or Guarantors, the terms and conditions of the Loan Agreement, including, but not limited to, the terms and conditions of the paragraph on Notice and Cure Period in the Loan Agreement will prevail.
The interest rate charged under this loan is authorized by Section 687.12, Florida Statutes and by Chapter 655, Florida Statutes and any applicable federal laws or regulations.
The principal balance hereof may be borrowed and re-borrowed from time to time during the term hereof in accordance with the terms of the Loan Agreement but may not exceed at any one time an outstanding principal balance of $3,000,000.00.
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PAYMENT IN FULL OF THIS NOTE SHALL NOT RESULT IN ITS TERMINATION AS LONG AS THE LOAN AGREEMENT IS IN EFFECT.
MAKER AND HOLDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE INCLUDING BUT NOT LIMITED TO ANY POST JUDGMENT ACTIONS AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE HOLDER MAKING THE LOAN OR EXTENSION OF CREDIT EVIDENCED BY THIS NOTE.
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/s/ SRW(Initials) |
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Address of Maker: |
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1684 West Hibiscus Blvd. |
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Melbourne, Florida 32901 |
THE GOLDFIELD CORPORATION, |
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a Delaware corporation |
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By: |
/s/ Stephen R. Wherry |
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STEPHEN R. WHERRY |
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Treasurer |
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TAXPAYER IDENTIFICATION NUMBER: |
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88-0031580 |
RECEIPT
Received the original of the attached Note on March 14, 2006.
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“BANK” |
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BRANCH BANKING AND TRUST COMPANY |
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By: |
/s/ Barry Forbes |
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BARRY FORBES |
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Senior Vice President |
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EXHIBIT 10-3
GUARANTY
IN CONSIDERATION of the sum of One Dollar ($1.00), cash in hand paid, and other valuable consideration, as well as for the purpose of seeking to induce BRANCH BANKING AND TRUST COMPANY, having a principal office at 1300 South Babcock Street, Melbourne, Florida 32901 (hereinafter termed the “Bank”), to extend credit to ______________, a __________corporation (hereinafter termed the “Principal”), the undersigned (hereinafter termed the “Guarantor”) does hereby absolutely and unconditionally guarantee to said Bank and to its endorsers, transferees, successors or assigns of either this guaranty or any of the obligations secured hereunder, the prompt payment and performance, according to their respective terms, of all liabilities (as hereinafter defined) of the Principal to the Bank.
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1. |
The term “Liability” or “Liabilities” as used herein shall include, without limitation, all of the obligations of the Guarantor hereunder, and all liabilities and obligations of Principal to Bank, and all payment and performance obligations of Principal under the Loan Documents. This guaranty is additional and supplemental to any and all other guaranties heretofore and hereafter executed by any Guarantor for benefit of Bank, whether or not relating to the Liabilities, and shall not supersede or be superseded by any other document or guaranty executed by any Guarantor or any other person or entity for any purpose. |
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2. |
The Guarantor waives notice of acceptance of this guaranty and notice of any Liability to which it may apply, and waives presentment, demand for payment, protest, notice of dishonor or nonpayment of any Liabilities and any suit or the taking of other action by Bank against and any other notice to any party liable thereon (including the Guarantor). |
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3. |
Bank may at any time and from time to time without notice to the Guarantor (except as required by law), without incurring responsibility to the Guarantor, without impairing, releasing or otherwise affecting the obligations of the Guarantor, in whole or in part, and without the endorsement or execution by the Guarantor of any additional consent, waiver or guaranty (a) change the manner, place or terms of payment, and change or extend the time of or renew or alter, any Liability or installment thereof, or any security therefor, and may lend additional monies or extend additional credit to Principal, with or without security, thereby creating new Liabilities, the payment of which shall be guaranteed hereunder, and the guaranty herein made shall apply to the Liabilities as so changed, extended, renewed, increased or otherwise altered; (b) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Liabilities and any offset thereagainst; (c) exercise or refrain from exercising any rights against Principal or others (including the Guarantor) or act or refrain from acting in any other manner; (d) settle or compromise any Liability or any security therefor and may subordinate the payment of all or any part thereof to the payment of any Liability (whether or not due) of Principal to creditors of Principal other than Bank and the Guarantor; and (e) apply any sums from any sources to any Liability without regard to any Liabilities remaining unpaid. |
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No invalidity, irregularity or unenforceability of all or any part of the Liabilities or of any security therefor shall affect, impair or be a defense to this guaranty, and this guaranty is a primary and absolute obligation of the Guarantor. |
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This guaranty is a continuing one, and all Liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon. The death or insanity of any Guarantor shall have the effect of a notice of termination only after the Bank has actually received written notice from such Guarantor’s legal representative; provided, however, that no notice of such death or insanity shall affect, in any manner, rights arising under this guaranty with respect to Liabilities that shall have been created, contracted, assumed or incurred prior to receipt by Bank of written notice of such death or insanity, or Liabilities that shall have been created, contracted for, assumed or incurred after receipt of such written notice pursuant to any agreement entered into by Bank prior to receipt of such notice, and the estate of such Guarantor shall then remain liable for any such Liabilities, and the sole effect of such notice of such death or insanity shall be to exclude (as to that Guarantor only) from this guaranty Liabilities thereafter arising that are unconnected with Liabilities theretofore arising or transactions theretofore entered into. The obligations of any other Guarantor shall remain unaffected by the death or insanity of any one or more Guarantors. |
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Notwithstanding anything to the contrary contained herein, this guaranty shall stand as and for the Guarantor’s guaranty of those certain credits granted by Bank to Principal evidenced by that certain renewal revolving line of credit promissory note of Principal to Bank dated of even date herewith in the original principal amount of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00), according to the terms thereof, and to all renewals, extensions, and modifications thereof, plus interest thereon, and any disbursements made for the payment of taxes, levies, or insurance on the mortgaged property, and for maintenance, repair, protection, and preservation of the mortgaged property, with interest on such disbursements. Bank, by its acceptance hereof, agrees that upon payment to Bank in full of the herein described indebtedness, this guaranty shall be of no further force and effect. |
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All notices provided to be given to Bank herein shall be sent by registered or certified mail, return receipt requested, to the address shown in the preamble to this agreement. |
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8. |
Any and all rights and claims of the Guarantor against Principal or any of its property shall be subordinate and subject in right of payment to the prior payment in full of all Liabilities. |
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Bank at all times, and from time to time, following any material adverse change in the financial condition of any one of the Guarantor shall have the right to require the Guarantor to deliver to Bank, as security for the Liabilities, collateral security, original or additional, satisfactory to Bank. |
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As security for the Liabilities, Bank is hereby given a lien upon, security title to and a security interest in all property of the Guarantor now or at any time hereafter in possession of Bank in any capacity whatsoever, and whether joint or by the entireties, including but not limited to any balance or share of any deposit, account, trust, agency or special account, or items of monies of the Guarantor now or hereafter in the possession or control of or otherwise with Bank, to include all dividends and distributions thereon or other rights in connection therewith, and Bank shall have such right to such property as authorized by law. Without limiting the generality of the foregoing, Bank shall have a prior perfected security interest to secure the Liabilities and may, at any time or from time to time at its option and without notice: (a) appropriate and apply towards the payment of any of the Liabilities the balance of any such account of the Guarantor, and (b) transfer into its own name or that of its nominee any such property in the possession or custody of Bank. |
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The Guarantor shall be in default hereunder upon: (a) non-payment of any Liability when due; (b) failure of Principal or the Guarantor to perform any agreement creating or otherwise affecting any Liability or any provision hereof, or to pay in full, when due, any other obligation of Principal or the Guarantor; (c) the dissolution, death or insanity, termination of existence, insolvency, or business failure of Principal or the Guarantor, appointment of a receiver of any part of the property of Principal or of any material part of the property of Guarantor, assignment for the benefit of creditors or the commencement of any proceedings in bankruptcy or insolvency by Principal or by the Guarantor or the failure to timely contest to or to dismiss within thirty (30) days of filing, any involuntary proceeding seeking the adjudication of Principal, or the Guarantor as bankrupt or insolvent; (d) the entry of a final, unappealable judgment having a material adverse effect against Principal or the Guarantor; (e) the taking of possession of any substantial part of the property of Principal or the Guarantor at the instance of any governmental authority; (f) the merger, consolidation or reorganization of Principal or the Guarantor; (g) the determination by Bank that a material adverse change has occurred in the financial condition of Principal or the Guarantor from the conditions set forth in the most recent financial statement of any such party heretofore furnished to Bank or from the condition of such party as heretofore most recently disclosed to Bank in any manner; or (h) falsity in any material respect of, or any material omission in any representation or statement made to Bank by or on behalf of Principal or the Guarantor in connection with any Liability or other obligation of such parties. |
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Upon the occurrence of any default hereunder, Bank shall have all of the remedies of a creditor and to the extent applicable, of a secured party, under all applicable law. Without limiting the generality of the foregoing, Bank may, at its option and without notice or demand: (a) declare any Liability accelerated and due and payable at once, and (b) take possession of any collateral security wherever located, and sell, resell, assign, transfer and deliver all or any part of said property of Principal or the Guarantor, at any public or private sale, for cash or on credit, and upon any such sale, Bank, unless prohibited by law the provisions of which cannot be waived, may purchase all or any part of said property to be sold, free from and discharged of all trusts, claims, right of redemption and equities of the Principal or Guarantor whatsoever; and (c) set off against any or all Liabilities or other obligations of the Guarantor all money owed by Bank in any capacity to the Guarantor whether or not due, and also set off against all other Liabilities of Principal or obligations of the Guarantor to Bank all money owed by Bank in any capacity to any Principal or the Guarantor, and Bank shall be deemed to have exercised such right of setoff and to have made a charge against any such money immediately upon the occurrence of such default although made or entered on the books subsequent thereto. Until all of the obligations of Principal to Bank have been paid and performed in full, Guarantor shall have no right of subrogation to Bank against Principal, and Guarantor hereby waives any rights to enforce any remedy which Bank may have against Principal and any rights to participate in any security for the note. |
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13. |
Guarantor shall pay all costs of collection and reasonable attorneys’ fees, including reasonable attorneys’ fees of any suit out of court, in trial, on appeal, in bankruptcy proceedings or otherwise, incurred or paid by Bank in enforcing the payment of any Liability or enforcing or preserving any right or interest of Bank hereunder, including the collection, sale or delivery of any collateral security from time to time pledged hereunder, and after deducting such fees, costs and expenses from the proceeds of sale or collection, Bank may apply any residue to pay any of the Liabilities and the Guarantor shall continue to be liable for any deficiency with interest, which shall remain a Liability. |
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If claim is ever made upon Bank for repayment or recovery of any amount or amounts received by Bank in payment or on account of any of the Liabilities and Bank repays all or part of said amount by reason of any judgment, decree or order of any court or administrative body having jurisdiction over Bank or any of its property or any settlement or compromise of any such claim effected by Bank with any such claimant (including Principal), then the Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the Guarantor, notwithstanding any revocation hereof or the cancellation of any note or other instrument evidencing any Liability, and the Guarantor shall be and remain liable to Bank hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by Bank. |
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Any acknowledgment, new promise, payment of principal or interest, or otherwise, whether by Principal or others (including the Guarantor), with respect to any of the Liabilities shall, if the statute of limitations in favor of the Guarantor against Bank shall have commenced to run, toll the running of such statute of limitations and, if the period of such statute of limitations shall have expired, prevent the operation of such statute of limitations. |
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Bank shall not be bound to take any steps necessary to preserve any rights in any of the property of the Guarantor against prior parties who may be liable in connection therewith, and the Guarantor hereby agrees to take any such steps. Bank may, nevertheless, at any time after and during the continuance of a default (a) take any action it may deem appropriate for the care or preservation of such property or of any rights of the Guarantor or Bank therein; (b) demand, sue for, collect or receive any money or property at any time due, payable or receivable on account of or in exchange for any property of the Guarantor; (c) compromise and settle with any person liable on such property, or (d) extend the time of payment or otherwise change the terms thereof as to any party liable thereon, all without notice to, without incurring responsibility to, and without affecting any of the obligations of the Guarantor. |
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No delay on the part of Bank in exercising any of its options, powers or rights, or partial or single exercise thereof, shall constitute a waiver thereof. No waiver of any of its rights hereunder, and no modification or amendment of this guaranty, shall be deemed to be made by Bank unless the same shall be in writing, duly signed on behalf of Bank, and each such waiver, if any, shall apply only with respect to the specific instance involved, and shall in no way impair the rights of Bank or the obligations of the Guarantor to Bank in any other respect at any other time. |
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Bank shall not be required to proceed first against Principal, or any other person, firm or corporation, whether primarily or secondarily liable, or against any collateral security held by it, before resorting to the Guarantor for payment, and the Guarantor shall not be entitled to assert as a defense to the enforceability of the guaranty set forth herein any defense of Principal with respect to any Liability. |
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Guarantor hereby subordinates any and all indebtedness of Principal now or hereafter owed to Guarantor to all indebtedness of Principal to Bank, and agrees with Bank that Guarantor shall not demand or accept any payment of principal or interest from Principal, shall not claim any offset or other reduction of Guarantor’s obligations hereunder because of any such indebtedness and shall not take any action to obtain any of the security described in and encumbered by the security instruments; provided, however, that, if Bank so requests, such indebtedness shall be collected, enforced and received by Guarantor as trustee for Bank and be paid over to Bank on account of the indebtedness of Principal to Bank, but without reducing or affecting in any manner the Liability of Guarantor under the other provisions of this Guaranty. |
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Each Guarantor warrants and represents to Bank that all financial statements heretofore delivered by said Guarantor to Bank are true and correct in all respects as of the date hereof. |
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Guarantor shall promptly, from time to time, furnish Bank with such financial reports and data as Bank may request. |
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Bank shall have no duty to pass on to Guarantor at any time its knowledge about the financial affairs or condition of Principal or of any other Guarantor of the Liabilities. Guarantor warrants that it has independent means to keep itself informed about these matters. |
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The Bank is hereby authorized to deliver a copy of any financial statements, tax returns or any other information relating to the business operations or financial condition of any Guarantor which may be furnished to it or come to its attention pursuant to the Loan Documents or otherwise, to any regulatory body or agency having jurisdiction over Bank or to any person which shall, or shall have the right or obligation to, succeed to all or any part of Bank’s interest (or any interest) in the Loan Documents. |
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This guaranty may not be changed orally or by implication, and no obligation of Guarantor can be released or waived by Bank or any officer or agent of Bank, except by a writing, signed by a duly authorized officer of Bank. This guaranty shall be irrevocable by Guarantor until all indebtedness guaranteed hereby has been completely repaid and all obligations and undertakings of Principal under, by reason of, or pursuant to the note and loan documents have been completely performed. |
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If from any circumstances whatsoever fulfillment of any provisions of this guaranty, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by any applicable usury statute or any other applicable law as of the date hereof, with regard to obligations of like character and amount, then ipso facto the obligation to be fulfilled shall be reduced to the limit of such validity, so that in no event shall any exaction be possible under this guaranty that is in excess of the limit of such validity as of the date hereof, but such obligation shall be fulfilled to the limit of such validity. The provisions of this paragraph shall control over every other provision of this guaranty. |
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The failure of any other person to sign this guaranty shall not release or affect the obligations or liability of the Guarantor. If more than one party executes this Guaranty, the obligations of the Guarantor hereunder shall be joint and several and the term “Guarantor” shall include each as well as all of them. This Guaranty may be executed in any number of counterparts, each of which shall be deemed an original instrument, but all such counterparts together shall constitute one and the same instrument. |
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The term “Guarantor” wherever used herein shall mean the Guarantor or any one or more of them. Anyone executing this guaranty shall be bound by the terms hereof without regard to execution by anyone else. This guaranty is binding upon the Guarantor, his, their, or its executors, administrators, successors or assigns, and shall inure to the benefit of Bank, its successors, endorsees or assigns. This Guaranty shall in no event be impaired by any change which may arise by reason of the death of Principal or Guarantor, if individuals, or by reason of the dissolution of Principal or Guarantor, if Principal or Guarantor is a corporation or partnership. |
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Notwithstanding anything to the contrary in this guaranty, the Guarantor hereby irrevocably waives all rights it may have at law or in equity (including, without limitation, any law subrogating the Guarantor to the rights of the Bank) to seek contribution, indemnification, or any other form of reimbursement from the Principal, or any other person now or hereafter primarily liable for any obligation of the Principal to the Bank, for any disbursement made by the Guarantor under or in connection with this guarantee or otherwise. |
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This agreement has been delivered in the State of Florida and shall be construed in accordance with the laws of Florida. Wherever possible, each provision 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 shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this agreement. To the extent permitted by applicable law, the Guarantor hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect. Guarantor, whether or not a Florida resident, hereby waives any plea or claim of lack of personal jurisdiction or improper venue in any action, suit or proceeding brought upon to enforce this Guaranty or the Liabilities. The Guarantor specifically authorizes any such action to be instituted and prosecuted in any Circuit Court in Florida, or United States District Court of Florida, at the election of Bank, where venue would lie and be proper against any Principal. |
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GUARANTOR AND BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK MAKING THE LOAN OR EXTENSION OF CREDIT EVIDENCED BY THIS AGREEMENT. |
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Dated this _______________________. |
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Signed, sealed and delivered |
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in the presence of: |
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“GUARANTOR” |
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a _______corporation |
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Treasurer |
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STATE OF FLORIDA
COUNTY OF ___________________
The foregoing instrument was executed and acknowledged before me this _____________ by _________________, as _____________ of_____________, a ________ corporation, on its behalf.
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Personally Known ____________ OR Produced Identification ____________________________________
Type of Identification Produced: _____________________________________________________________
6
EXHIBIT 10-4
UNCONDITIONAL GUARANTY (By Entity)
WHEREAS, the undersigned has requested BB&T Leasing Corporation (LESSOR) to lease equipment to:
SOUTHEAST POWER CORPORATION (LESSEE) and the LESSOR has leased and/or may in the future lease equipment by reason of such request and in reliance upon this guaranty. As used herein the term "equipment" shall include without limitation all forms and types of vehicles, airplanes, boats, machinery, fixtures and equipment.
NOW, THEREFORE, in consideration of such lease of equipment and/or the lease in the future of equipment in its discretion by LESSOR to LESSEE (whether to the same, greater or lesser extent than the limit of this guaranty), the undersigned (who, if two or more in number, shall be jointly and severally bound) hereby unconditionally guarantees to LESSOR and its successors and assigns the punctual payment when due, with such sales or use taxes as may accrue thereon, of all rental payments, debts and obligations (including legal fees and expenses) of the LESSEE, now existing or hereafter arising under, and the performance by the LESSEE of all the terms and conditions of, any Equipment, Vehicle or other Lease, whether heretofore or hereafter entered into between LESSOR and LESSEE.
The liability of the undersigned hereunder shall not exceed at any one time a total of $ 1,500,000.00.
The undersigned consents that the time or place of payment of any obligation of the LESSEE or of any terms or conditions of any Lease or of any security or collateral therefore may be changed or extended and may be renewed of accelerated, in whole or in part; that the LESSEE may be granted indulgences generally, that any provisions of any Lease may be modified or waived; that any party liable for the payment thereof (including but not limited to any co-guarantor) may be granted indulgences or released; that neither the death, bankruptcy nor disability of any one or more of the guarantors shall affect the continuing obligation of any other guarantor, and that no claim need be asserted against the personal representative, guardian, trustee in bankruptcy or receiver of any deceased, incompetent, bankrupt or insolvent guarantor, all without notice to or further assent by the undersigned, who shall remain bound thereon, notwithstanding any such change, extension, renewal, acceleration, modification, indulgence, waiver or release.
The undersigned expressly waives (a) notice of acceptance of this guaranty and of any transaction with LESSOR; (b) presentment and demand for payment of any of the obligations of LESSEE; (c) protest and notice of dishonor or of default to the undersigned or to any other party with respect to any of the obligations of the LESSEE or with respect to any security or collateral therefore; (d) all of the notices to which the undersigned might otherwise be entitled and (e) demand for payment under this guaranty.
This is a guaranty of payment and not of collection and also a guaranty of performance. The liability of the undersigned on this guaranty shall be absolute, continuing, direct and immediate and not conditional or contingent upon the pursuit of any remedies against LESSEE or any other person, nor against collateral, securities or liens available to LESSOR, its successors or assigns. The undersigned waives any right to require that an action be brought against LESSEE or any other person or to require that resort be had to any security or collateral. If the obligations of the LESSEE are partially paid through the election of the LESSOR or its successors or assigns, to pursue any of the remedies mentioned in this paragraph or if such obligations are otherwise partially paid, the undersigned shall remain liable for any balance of such obligations up to the limit hereinabove stated.
If the LESSEE is a corporation, this obligation covers all Leases, rental payments, debts and obligations to LESSOR purporting to be incurred or undertaken in behalf of such corporation by any officer or agent of said corporation without regard to the actual authority of such officer or agent.
So long as this guaranty is in effect, the undersigned shall provide LESSOR with continuing periodic financial statements at intervals of not less than every year commencing on the date hereof. Such financial statements will consist of a balance sheet and statement of earnings of guarantor, will be dated within thirty (30) days of the date submitted to Lessor and will be prepared in accordance with generally accepted accounting principles.
This guaranty shall be binding upon the undersigned, its successors and assigns unless and until (and then only with respect to future transactions or commitments) terminated by notice to that effect received by the LESSOR by certified or registered mail, addressed to the LESSOR at its then principal office. This obligation shall be construed in accordance with the laws of the State of North Carolina and when signed by more than one shall be the joint and several obligations of each.
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized representatives to execute this Guaranty under seal, this 14 th day of March, 2006.
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THE GOLDFIELD CORPORATION |
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/s/ Stephen R. Wherry |
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Treasurer |
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/s/Stephen R. Wherry |
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Assistant Secretary |
Sharing of Information Notification
Unless you object in writing, BB&T Leasing Corporation will share information about you and your account(s) with Branch Banking & Trust Company and subsidiaries and affiliates. If you object, your objection must be sent to BB&T Leasing Corporation, PO Box 31273 Charlotte, NC 28231. Please include your company name, and/or your individual name, the address(s) to which your invoices are sent, Federal Taxpayer ID. or Social Security number (for individuals) and telephone number. Please allow us a reasonable period of time to update our database after receiving your objection. Not withstanding any objection, information about you and your accounts will be disclosed to BB&T, subsidiaries, affiliates and outside parties only in accordance with applicable laws.
EXHIBIT 10-5
VEHICLE/EQUIPMENT LEASE
(FINANCE LEASE)
BB&T
Leasing Corporation
Post Office Box 31273
Charlotte, NC 28231
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SOUTHEAST POWER CORPORATION |
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1805 HAMMOCK ROAD |
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TITUSVILLE FLORIDA 32796 |
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If Schedule "A" is attached check here:________
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IN WITNESS WHEREOF , the parties hereby execute this lease as of the day and year written as the date of lease. By execution below, each person e xecuting this lease represents and warrants that he/she is authorized to bind the Debtor to this lease.
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BB&T LEASING CORPORATION |
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THIS VEHICLE/EQUIPMENT LEASE (herein "lease" or "agreement") is made in Charlotte, North Carolina, by and between BB&T LEASING CORPORATION (herein "Lessor") and the above named Lessee.
1. Lease of Vehicles/Equipment . This is a lease transaction covering automobiles and/or tractors (“vehicles”) or equipment (“equipment”). The vehicles or equipment covered by this lease are herein called the “asset” or “assets”. If the asset is a vehicle, the provisions hereof related to equipment shall not be applicable and if the asset is equipment, the provisions hereof related to vehicles shall not be applicable. Lessor hereby leases to Lessee and Lessee leases from Lessor the asset described above. A truck tractor, equipment trailer, truck trailer, truck chassis or truck body which has a separate permanent manufacturer's serial number and can be readily detached, replaced, purchased and sold as a separate unit may, at Lessee's option, be treated as a vehicle and, therefore, an asset covered hereby.
2. Lease Term . The lease term for each asset shall commence on the date set forth above and shall continue thereafter until the end of the month for which the last lease payment required is made or until final settlement is otherwise made pursuant to the terms hereof.
3. Lease Payments . Within the lease term, lease payments shall be made on or before the second day of each calendar month commencing the second day of the month immediately following delivery of the asset to Lessee. The first such payment shall include an interim charge for the period from the delivery date of the asset to the first lease payment date. Lessee authorizes Lessor to fill in the Lease Payment Commencement Date above with the date the first lease payment is due hereunder. Time is of the essence. Should Lessee fail to pay the lease payment on the date it became due, Lessor may collect from Lessee as an additional lease payment an amount equal to five percent (5%) of such monthly lease payment. Lessor may charge a return check charge for each check of Lessee which is returned unpaid for any reason.
4. Ownership of Vehicles or Equipment; Special Power of Attorney . (a) (i) If the asset consists of a vehicle or vehicles, then the vehicles leased hereunder are and shall at all times remain the property of Lessor and Lessee shall have no right, title or interest therein except as expressly set forth in this lease. All vehicles leased hereunder shall be owned by and titled in the United States or a territory or dependency thereof in the name of Lessor. All vehicles leased hereunder shall be registered in the United States or a territory or dependency thereof in the name of Lessee where permitted by law, or otherwise in the name of the Lessor. Lessee shall provide Lessor all information necessary to perfect such titling and/or registration. Lessor and Lessee intend this lease to be a true lease and not a sale or conditional sale of the vehicle. From time to time, purely for administrative convenience, title to the vehicle may be placed in the name of Lessee. Any certificate of title issued with respect to the vehicle shall show Lessor as first lienholder in order to protect Lessor’s ownership interest in the vehicle. Since titling of the vehicle is for the administrative convenience of the parties, Lessee shall not thereby acquire any ownership, equity or other interest in the vehicle other than a leasehold interest subject to the terms and conditions hereof; (ii) upon termination of the lease or at any other time upon receipt of notice from Lessor, Lessee shall take such action as necessary to transfer title into Lessor’s name or the name of Lessor’s designee. Lessee hereby appoints Lessor Lessee’s attorney-in-fact for the purpose of transferring title to the vehicle. This power of attorney is coupled with an interest, is irrevocable and may be used by Lessor to execute and file any document necessary to accomplish such transfer of title. At Lessor’s request, Lessee shall execute and deliver to Lessor such additional instruments as may be necessary or desirable to reflect or confirm that, though title to the vehicle is registered in Lessee, all incidents of ownership of the vehicle remain, subject to the terms hereof, in Lessor; and (iii) Lessee hereby appoints Lessor Lessee’s attorney-in-fact for the purpose of executing in the Lessee’s name and filing any instrument or document, including UCC financing statements, pertaining to or evidencing Lessor’s interest in any part of or attachment to the vehicle, and for the purpose of paying, on Lessee’s behalf, any fee, tax or other expense arising out of such a filing and out of a records search in connection with the same. Lessee shall reimburse Lessor for any such payment. No filing under the UCC shall imply an intention to create a security interest, it being the intention of the parties that this lease be construed as a true lease.
(b) (i) If the asset consists of equipment, then the equipment is, and shall at all times remain, the property of Lessor and Lessee shall have no right, title or interest therein or thereto except as expressly set forth in this lease. The equipment is, and shall at all times be and remain, personal property notwithstanding that the equipment or any part thereof may now be, or hereafter become, in any manner affixed or attached to real property or any building thereon by any means. If Lessor supplies Lessee with labels stating that the equipment is owned by Lessor, Lessee shall affix and keep the same upon a prominent place on each item of equipment; and (ii) Lessee hereby appoints Lessor Lessee’s attorney-in-fact for the purpose of executing in the Lessee’s name and filing any instrument or document, including UCC financing statements, pertaining to or evidencing Lessor’s interest in the equipment and for the purpose of paying, on Lessee’s behalf, any fee, tax or other expense arising out of such a filing and out of a records search in connection with the same. Lessee shall reimburse Lessor for any such payment. No filing under the UCC shall imply an intention to create a security interest, it being the intention of the parties that this lease be construed as a true lease.
5. Use of Asset . (a) If the asset is a vehicle or vehicles, Lessee acknowledges that it is leasing the vehicle for commercial business purposes only and in no event shall such vehicle be used for the transportation for hire of passengers except with prior written consent of Lessor. Lessee shall comply and cause all persons operating vehicles leased hereunder to comply (a) with all applicable requirements of law relating to the registration, licensing, insurance, use and operation of the vehicle including operator's licensing requirements, and (b) with all conditions of the policies of insurance on the vehicle.
(b) If the asset is equipment, Lessee acknowledges that it is leasing the equipment for commercial business purposes only. Lessee shall use the equipment in a careful manner and shall comply with all laws and regulations relating to its possession, use and maintenance.
6. Delivery, Location and Inspection . The asset shall be delivered at the address specified above and upon tender by Lessor to Lessee or its representative of the asset in good repair, Lessee will accept delivery and execute a Delivery Receipt therefor. Lessor shall have the right to inspect the asset at any reasonable time and Lessee shall advise Lessor of the exact location of the asset. Lessee hereby authorizes Lessor to receive assets from the manufacturer or the dealer on behalf of Lessee and deliver the assets to the asset location specified above.
7. Warranties . Lessee agrees that it has selected the asset based upon its own judgment and that Lessor has acquired the asset only in connection with this lease. Lessee disclaims any reliance upon any statements or representations of Lessor. LESSOR MAKES NO WARRANTY WITH RESPECT TO ANY ASSET SUBJECT TO THIS LEASE, EXPRESSED OR IMPLIED, AND LESSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF SUITABILITY, CONDITION, MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND ANY LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE ASSET . Lessee agrees to make the lease payments and other payments required hereunder without regard to the condition, suitability or fitness of the asset and to look only to persons other than the Lessor (such as the manufacturer, vendor or carrier thereof) if the vehicle or any item of equipment is for any reason defective. So long as no Event of Default has occurred and is continuing, Lessor agrees, to the extent they are assignable, to assign to the Lessee, without any recourse to Lessor, any warranty received by Lessor.
8. Advance Lease Payments . Any advance lease payment paid by Lessee to Lessor for the lease of the asset shall be applied by Lessor to the first lease payment due hereunder and, if any of the advance payment remains after such application, it will be held by Lessor for satisfaction of Lessee's obligations under this lease.
9. Determination of Actual Cost . Actual Cost means the cost to Lessor of purchasing and delivering the asset to Lessee, including excise and other taxes, transportation and all other charges. The amount of each estimated lease payment, the estimated cost set forth above are estimates and it is mutually agreed that upon final determination of the Actual Cost, Lessor will adjust the lease payment proportionately if the Actual Cost differs from Estimated Cost, insert the appropriate figures and notify the Lessee of such amounts. Lessee authorizes Lessor to add to the amount of any lease payments any tax that may be imposed on or measured by the lease payments. If the Actual Cost differs materially (as determined by Lessor) from the estimated cost initially set forth above, Lessor, at its option, may terminate this lease.
10. Insurance . Lessee shall provide and maintain (a) policies insuring the asset for comprehensive coverage, fire, collision, loss, theft, destruction or damage of the asset in an amount not less than the full replacement value thereof with a maximum $1,000 deductible for any vehicle and $4,000 for any equipment, with loss payable to Lessor, and (b) public liability insurance against claims for personal injuries, death and property damage, with minimum combined single limits of $500,000 and maximum deductible $1,000 for any vehicle and $4,000 for any equipment, which insurance shall name Lessor as an additional insured and as loss payee. All insurance shall be with companies satisfactory to Lessor or its assigns. Each policy shall expressly provide that said insurance as to Lessor and its assigns shall not be invalidated by any act, omission or neglect of Lessee and that insurer will give Lessor at least thirty (30) days prior written notice before the policy is altered or cancelled. Lessee shall pay the premiums for all insurance and deliver such policies, or duplicates thereof, to Lessor upon delivery of the asset to Lessee. Lessee hereby appoints Lessor as Lessee's attorney-in-fact to make claim for, receive payment of, and execute and endorse all documents, checks or drafts for loss or damage under said insurance policies. Lessor may apply the proceeds of said insurance to replace or repair the asset and/or to satisfy some or all of Lessee's obligation hereunder. Lessor, at its expense, may choose to appoint a third party to act on its behalf to receive policies or notices and verify Lessee performs the insurance requirements set forth in this lease.
11. Operation and Repair . (a) If the asset is a vehicle or vehicles, Lessee shall pay or cause to be paid all costs, expenses, fees and charges incurred in connection with the titling, registration and maintenance of vehicles and the use and operation during the lease term. Lessee, at its expense, shall keep each vehicle in good condition and repair and shall furnish all parts, accessories, mechanisms and devices required therefor. Lessee shall reimburse Lessor upon demand, as an additional lease payment, the amount of any such costs, expenses, fees or charges which are paid by Lessor.
(b) If the asset is equipment, Lessee shall pay or cause to be paid all costs, expenses, fees and charges incurred in connection with the use and operation of the equipment and shall keep the equipment in good condition and repair and furnish all parts, mechanisms and devices required therefor. Lessee shall reimburse Lessor upon demand, as an additional lease payment, the amount of any such costs, expenses, fees or charges which are paid by Lessor.
12. Alterations . Lessee shall not make any alterations or improvements to the asset without Lessor's prior written consent. All alterations and improvements shall become the property of Lessor.
13. Liens and Taxes. Lessee shall keep the asset free and clear of all levies, liens and security interests and shall give Lessor immediate notice of any attachment or other judicial process affecting any asset. Lessee shall pay all charges and taxes (local, state and federal) which may now or hereafter be imposed upon the ownership, leasing, rental, sale, purchase, possession or use of the asset, excluding all taxes on or measured by Lessor's net income. If Lessee fails to notify Lessor of a change in location which results in an amendment to a filing, application for refund, or other additional administrative work to correctly file, Lessee will pay Lessor an additional fee to compensate Lessor for this additional administrative burden. Lessor, at its expense, may choose to appoint a third party to act on its behalf to administratively manage, file and remit taxes as set forth in this lease.
14. Lessor's Payment . If Lessee fails to procure or maintain said insurance, release said liens, or pay said charges and taxes, Lessor shall have the right, but shall not be obligated, to obtain such insurance, release such liens or pay such charges and taxes and Lessee shall pay to Lessor the amounts so paid, on demand, as an additional lease payment.
15. Assignment or Sublease . Without Lessor's prior written consent, Lessee shall not (a) assign, transfer, pledge, hypothecate or otherwise dispose of this lease or any interest herein, or (b) sublet or lend the asset or permit them to be used by anyone other than Lessee or Lessee's employees. Lessor may assign this lease and/or mortgage the asset, in whole or part, without notice to Lessee and its assignee or mortgagee may reassign this lease and/or such mortgage, without notice to Lessee. Each such assignee and/or mortgagee shall have all of the rights but none of the obligations of Lessor under this lease. Lessee shall execute and deliver an acknowledgement of each such assignment and/or mortgage and shall not assert against the assignee and/or mortgagee any defense, counterclaim or offset that Lessee may have against Lessor. Subject to the foregoing, this lease inures to the benefit of and is binding upon the heirs, legatees, personal representatives, successors and assigns of the parties hereto. Lessee hereby waives any and all existing and future claims and offsets against any lease payments or other payments due hereunder and agrees to pay the lease payments and other amounts hereunder regardless of any offset or claim which may be asserted by Lessee or on its behalf.
16. Loss and Damage . Lessee shall bear the entire risk of loss, theft, destruction or damage of the asset from any cause whatsoever, including loss, theft, destruction or damage of the asset in the course of its transportation or delivery to Lessee, and no loss, theft, destruction or damage of the asset shall relieve Lessee of the obligation to pay lease payments or of any other obligation under this lease, notwithstanding any surrender thereof or failure of Lessee to execute a Delivery Receipt for such asset.
17. Indemnity . Lessee hereby indemnifies Lessor against and agrees to hold it harmless from any and all claims, actions, proceedings, liability and expense (including legal expense) arising in connection with the asset, including without limitation the manufacture, selection, ordering, purchase, delivery, possession, ownership, use, condition, operation or return thereof, including liability for death or injury to persons, damage to property and strict liability under the laws or judicial decisions of any state or of the United States. This indemnity will survive a termination of this lease.
18. Default . Each of the following events will constitute an " Event of Default " hereunder: (a) Lessee's failure to pay when due any lease payment or other charges required herein to be paid; (b) Lessee's failure to observe or perform any other agreement required herein to be observed or performed by Lessee and Lessee's continued failure for ten days following written notice thereof by Lessor to Lessee; (c) the cessation of doing business as a going concern or assignment for the benefit of creditors by Lessee or any guarantor of this lease or any partner in Lessee if Lessee is a partnership, member in Lessee if Lessee is a limited liability company or owner in Lessee if Lessee is a corporation; (d) the bankruptcy or receivership of Lessee; (e) the death of any individual Lessee, guarantor of this lease or partner of Lessee if Lessee is a partnership, member in Lessee if Lessee is a limited liability company or owner in Lessee if Lessee is a corporation; (f) Lessee's failure to submit timely financial or credit information requested by Lessor or Lessee's submission of financial or credit information that is false or misleading in any material respect when submitted; (g) the occurrence of an event of default under any other obligation or agreement of Lessee to or with Lessor; (h) Lessee's default in the repayment of any indebtedness Lessee may now or hereafter owe Lessor or any affiliate thereof or any other entity or person; and, (i) the existence of circumstances which causes Lessor, in good faith, to be insecure regarding Lessee's performance of its lease obligations and, within ten days following notice by Lessor advising Lessee of such circumstances, Lessee has failed to take such action as is necessary and sufficient to remove such insecurity.
19. Remedies . Lessor and Lessee agree that Lessor's damages suffered by reason of the occurrence of an Event of Default are uncertain and not capable of exact measurement at the time this lease is executed and therefore they agree that, for purposes of this paragraph, " Lessor's Loss " as of any date will be the sum of the following: (i) the amount of the first 12 lease payments that have not become due as of such date; plus (ii) the amount of all lease payments and other amounts payable by Lessee hereunder that are due or accrued but unpaid as of such date; plus (iii) all lease payments and other amounts required hereunder to be made during the remainder of the term hereof less unearned income which would otherwise have been realized by Lessor from the date of termination or surrender through the remainder of the term of this lease. Upon the occurrence of an Event of Default and at any time thereafter, Lessor may exercise any one or more of the following remedies: (a) Lessor may, by written notice to Lessee, terminate this lease and declare an amount equal to Lessor's Loss as of the date of the notice to be immediately due and payable, and the same will then be and become immediately due and payable without further notice or demand, and all rights of the Lessee to use the asset will terminate but Lessee will remain liable as provided herein. Lessee will at its expense promptly deliver the asset to Lessor at a location specified by Lessor. Lessor is also entitled to enter upon the premises where the asset is located and take immediate possession of and remove the asset with or without instituting legal proceedings and without incurring any liability to Lessee for any damages resulting from the taking of possession of the asset; (b) Lessor may proceed by appropriate court action to enforce performance by Lessee of the applicable covenants of this Lease or to recover, for breach of this lease, Lessor's Loss as of the date Lessor's Loss is declared due and payable hereunder. Lessor may elect binding arbitration of any dispute with Lessee regarding a default by Lessee and any such arbitration will be conducted in Charlotte, North Carolina, pursuant to the Rules of the American Arbitration Association; (c) In the event Lessor repossesses the asset, Lessor will publicly or privately sell or lease the asset in such manner and upon such terms as Lessor may in its sole discretion determine to be appropriate. The proceeds of the sale or lease will be applied to reimburse Lessor for Lessor's Loss and any additional amounts due under (d) and (e), below. Lessor will be entitled to any surplus and Lessee will remain liable for any deficiency. For purposes of this provision, the proceeds of any lease of all or any portion of the asset by Lessor will be the amount reasonably assigned by Lessor as the cost of such asset in determining the lease payments under such lease; (d) Lessor may recover interest on the unpaid balance of Lessor's Loss from the date of the Event of Default until the date that it is fully paid equal to ten percent or the highest rate permitted by law; or (e) Lessor may exercise any other right or remedy available to it by law or agreement, and may in any event recover attorneys' fees of fifteen percent of Lessor's Loss together with all other expenses incurred by reason of an Event of Default or the exercise of any remedy hereunder, including without limitation the expenses of repossession, repair, storage, transportation and disposition of the asset. No remedy provided for in this paragraph is intended to be exclusive, and each will be cumulative but only to the extent necessary to enable Lessor to recover from Lessee amounts for which Lessee is liable hereunder. No express or implied waiver by Lessor of any breach of Lessee's obligations hereunder will constitute a waiver of any other breach of Lessee's obligations hereunder.
20. Federal Disclosure regarding Vehicles. Upon termination of this lease with respect to any vehicle, Lessee shall provide the information necessary to complete any disclosure statement required by applicable Federal or State odometer disclosure laws. Upon prior written direction of Lessor, Lessee shall sell any vehicle for Lessor and Lessee shall prepare and execute on behalf of Lessor any disclosure statement required by applicable Federal or State odometer disclosure laws and provide Lessor with a copy of each such disclosure statement. Lessee will hold Lessor harmless from any and all liabilities whatsoever arising from Lessee's failure to provide accurate information for the preparation of any such disclosure statement or failure to accurately prepare and deliver any such disclosure statement.
21. Surrender and Final Settlement .
(a) On or before the termination of this Lease, Lessee shall pay Lessor all sums due hereunder, whether for lease payment or otherwise, plus a $100.00 termination fee. If any such sum is past due, it will bear interest at the highest rate allowed by law and such accrued interest shall be paid by Lessee prior to termination.
(b) Provided that Lessee shall have faithfully performed all the conditions imposed upon Lessee by this lease, Lessor will transfer ownership by (i) in the case of a vehicle, assigning and delivering title of the vehicle to the Lessee or (ii) in the case of equipment, by assigning title to the equipment to Lessee. With respect to vehicles, Lessee will provide the information necessary to complete any disclosure statement required by applicable Federal or State disclosure laws and Lessee will remain liable for any cost incurred by Lessor including any cost incurred due to Lessee’s failure to complete the transfer of title into its name in a timely fashion. Lessee will hold Lessor harmless from any and all liabilities arising from Lessee’s failure to provide accurate information for the preparation of any disclosure statement or failure to prepare and delivery any such disclosure statement.
22. Notices . Any written notice or demand under this Agreement shall be given to a party by mailing it to the party at its address set forth above, or at such address as the party may provide in writing from time to time. Notice or demand so mailed shall be effective when deposited in the United States mail, duly addressed and with postage prepaid.
23. Financial Information . Lessee shall provide Lessor with continuing periodic financial statements at intervals of not less than every year from the date of this lease, which financial statements shall consist of a balance sheet and a statement of earnings of Lessee, such statements to be prepared in accordance with generally accepted accounting principles.
24. Facsimiles . For convenience, Lessor may accept a facsimile copy of this lease with facsimile signatures. Lessee agrees a facsimile copy will be treated as an original and will be admissible as evidence of this lease.
25. Entire Agreement; Miscellaneous . This agreement, together with Schedule "A", if attached, and the Delivery Receipt executed by Lessee in connection with the asset, constitutes the entire agreement between Lessor and Lessee and supersedes any agreement heretofore entered into between the parties relating to the asset. If more than one Lessee is named in this lease, the liability of each shall be joint and several. No agent or employee of any manufacturer or dealer is authorized to bind Lessor, waive or alter any term or condition or add any provision hereto. Waiver by Lessor of any provision in one instance shall not constitute a waiver as to any other instance. This lease shall be governed by and construed in accordance with the laws of the State of North Carolina. The plural shall include the singular and the singular the plural. Lessee shall provide Lessor with such corporate resolutions, opinions of counsel and other documents as Lessor shall request from time to time. Any provisions of this agreement prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of this agreement.
26. Purchase Money Security Interest Transaction . Notwithstanding anything to the contrary herein, in the event the transaction between Lessor and Lessee and this lease shall be determined to be a sale by Lessor to Lessee of the asset (such that Lessee is the owner of the asset) and a financing by the Lessor of such sale pursuant to this lease or to be not a “true lease”, then the Lessor and Lessee agree that this lease evidences a sale by the Lessor to Lessee of the asset and purchase money security interest transaction by which Lessee grants to Lessor a purchase money security interest in the asset to secure such sale. As such and as a precaution in the event it is deemed that Lessor has transferred title to the asset to Lessee, Lessee hereby grants to Lessor, effective as of the date hereof, a first lien and security interest in the asset to secure all of the obligations of Lessee to Lessor now or hereafter owing by Lessee to Lessor, including all obligations under this lease. The filing of any UCC Financing Statements by Lessor against Lessee or the asset shall be deemed made to perfect the liens of Lessor on such asset. Upon any default of Lessee hereunder, including any Event of Default (as herein defined), Lessor may exercise all remedies available at law or in equity, including the foreclosure or other realization on the asset. In connection therewith, Lessor may recover all costs of collection, including reasonable attorney’s fees. Lessee authorizes Lessor to file any and all UCC Financing Statements or take any and all action to protect and perfect the security interest granted hereby.