EXHIBIT 10-2
LOAN AGREEMENT
Branch Banking and Trust Company
6430 North Wickham Road
Melbourne, Florida 32940
(Hereinafter referred to as the "Bank")
Southeast Power Corporation,
a Florida corporation
1684 West Hibiscus Blvd.
Melbourne, Florida 32901
(Hereinafter referred to as the "Borrower")
The Goldfield Corporation, Bayswater Development Corporation,
a Delaware corporation a Florida corporation
1684 West Hibiscus Blvd. 1684 West Hibiscus Blvd.
Melbourne, Florida 32901 Melbourne, Florida 32901
Pineapple House of Brevard, Inc., Oak Park of Brevard, Inc.,
a Florida corporation a Florida corporation
1684 West Hibiscus Blvd. 1684 West Hibiscus Blvd.
Melbourne, Florida 32901 Melbourne, Florida 32901
(Individually and collectively "Guarantor")
This Loan Agreement ("Agreement") is entered into August 26, 2005 by and between
Bank, Borrower, and Guarantor.
This Agreement applies to the loan or loans (individually and collectively, the
"Loan") evidenced by that certain promissory note dated August 26, 2005, in the
original principal amount of $2,000,000.00, or other notes subject hereto, as
modified from time to time (whether one or more, the "Note") and all Loan
Documents.
The terms "Loan Documents", as used in the Note and the other Loan Documents,
refers to all documents executed in connection with or related to the loan
evidenced by this Note and any prior notes which evidence all or any portion of
the loan evidenced by this Note, and any letters of credit issued pursuant to
any loan agreement to which this Note is subject, any applications for such
letters of credit and any other documents executed in connection therewith or
related thereto, and may include, without limitation, a commitment letter that
survives closing, a loan agreement, the Note, guaranty agreements, security
agreements, security instruments, financing statements, mortgage instruments,
any renewals or modifications, whenever any of the foregoing are executed, but
does not include swap agreements (as defined in 11 U.S.C. Section 101, as in
effect from time to time). The term "Obligations", as used in the Note and the
other Loan
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Documents, refers to any and all indebtedness and other obligations
under this Note, all other obligations under any other Loan Documents, and all
obligations under any swap agreements (as defined in 11 U.S.C. Section 101, as
in effect from time to time) between Borrower and Bank, or its affiliates,
whenever executed. All terms that are used but not otherwise defined in any of
the Loan Documents shall have the definitions provided in the Uniform Commercial
Code.
Relying upon the covenants, agreements, representations and warranties contained
in this Agreement, Bank is willing to extend credit to Borrower upon the terms
and subject to the conditions set forth herein, and Bank, Borrower, and
Guarantor agree as follows:
REPRESENTATIONS. Borrower represents that from the date of this Agreement and
until final payment in full of the Obligations: Accurate Information. All
information now and hereafter furnished to Bank is and will be true, correct and
complete to the best of the Borrower's knowledge. Any such information relating
to Borrower's or Guarantor's financial condition will accurately reflect
Borrower's and Guarantor's financial condition as of the date(s) thereof
(including all contingent liabilities of every type), and Borrower and Guarantor
further represent that their financial condition has not changed materially or
adversely since the date(s) of such documents. Authorization; Non-Contravention.
The execution, delivery and performance by Borrower and any guarantor, as
applicable, of this Agreement and other Loan Documents to which it is a party
are within its power, have been duly authorized as may be required and, if
necessary, by making appropriate filings with any governmental agency or unit
and are the legal, binding, valid and enforceable obligations of Borrower and
any guarantors; and do not (i) contravene, or constitute (with or without the
giving of notice or lapse of time or both) a violation of any provision of
applicable law, a violation of the organizational documents of Borrower or any
guarantor, or a default under any agreement, judgment, injunction, order, decree
or other instrument binding upon or affecting Borrower or any guarantor, (ii)
result in the creation or imposition of any lien (other than the lien(s) created
by the Loan Documents) on any of Borrower's or any guarantor's assets, or (iii)
give cause for the acceleration of any obligations of Borrower or any guarantor
to any other creditor. Asset Ownership. Borrower and Guarantor have good and
marketable title to all of the properties and assets reflected on the balance
sheets and financial statements supplied Bank by Borrower and Guarantor, and all
such properties and assets are free and clear of mortgages, security deeds,
pledges, liens, charges, and all other encumbrances, except as otherwise
disclosed to Bank by Borrower and Guarantor in writing ("Permitted Liens"). To
Borrower's and Guarantor's knowledge, no default has occurred under any
Permitted Liens and no claims or interests adverse to Borrower's or Guarantor's
present rights in their properties and assets have arisen. Discharge of Liens
and Taxes. Borrower and Guarantor have duly filed, paid and/or discharged all
taxes or other claims which may become a lien on any of their property or
assets, except to the extent that such items are being appropriately contested
in good faith and an adequate reserve for the payment thereof is being
maintained. Sufficiency of Capital. Borrower and Guarantor are not, and after
consummation of this Agreement and after giving effect to all indebtedness
incurred and liens created by Borrower and Guarantor in connection with the Note
and any other Loan Documents, will not be, insolvent within the meaning of 11
U.S.C. ss. 101(32). Compliance with Laws. Borrower and Guarantor are in
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substantial compliance in all respects with all federal, state and local laws,
rules and regulations applicable to its properties, operations, business, and
finances, including, without limitation, any federal or state laws relating to
liquor (including 18 U.S.C. ss. 3617, et seq.) or narcotics (including 21 U.S.C.
ss. 801, et seq.) and/or any commercial crimes; all applicable federal, state
and local laws and regulations intended to protect the environment; and the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if
applicable. Organization and Authority. Each corporate Borrower and/or
guarantor, as applicable, is duly created, validly existing and in good standing
under the laws of the state of its organization, and has all powers,
governmental licenses, authorizations, consents and approvals required to
operate its business as now conducted. Each corporate or limited liability
company Borrower and/or guarantor, as applicable, is duly qualified, licensed
and in good standing in each jurisdiction where qualification or licensing is
required by the nature of its business or the character and location of its
property, business or customers, and in which the failure to so qualify or be
licensed, as the case may be, in the aggregate, could have a material adverse
effect on the business, financial position, results of operations, properties or
prospects of Borrower or any such guarantor. No Litigation. There are no
material pending or threatened suits, claims or demands against Borrower or any
guarantor that have not been disclosed to Bank by Borrower, and approved by
Bank. Regulation U. None of the proceeds of the credit extended pursuant to this
Agreement shall be used directly or indirectly for the purpose of purchasing or
carrying any margin stock in violation of any of the provisions of Regulation U
of the Board of Governors of the Federal Reserve System ("Regulation U"), or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry margin stock or for any other purchase which might
render the Loan a "Purpose Credit" within the meaning of Regulation U.
AFFIRMATIVE COVENANTS. Borrower and Guarantor agree that from the date hereof
and until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing, Borrower and Guarantor will: Access to Books and Records.
Allow Bank, or its agents, during normal business hours, access to the books,
records and such other documents of Borrower and Guarantor as Bank shall
reasonably require, and allow Bank, at Borrower's expense, to inspect, audit and
examine the same and to make extracts therefrom and to make copies thereof.
Business Continuity. Conduct its business in substantially the same manner and
locations as such business is now and has previously been conducted. Compliance
with Other Agreements. Comply with all terms and conditions contained in this
Agreement, and any other Loan Documents, and swap agreements, if applicable, as
defined in the 11 U.S.C. ss. 101. Estoppel Certificate. Furnish, within 15 days
after request by Bank, a written statement duly acknowledged of the amount due
under the Loan and whether offsets or defenses exist against the Obligations.
Insurance. Maintain adequate insurance coverage with respect to its properties
and business against loss or damage of the kinds and in the amounts customarily
insured against by companies of established reputation engaged in the same or
similar businesses including, without limitation, commercial general liability
insurance, workers compensation insurance; all acquired in such amounts and from
such companies as Bank may reasonably require. Maintain Properties. Maintain,
preserve and keep its property in good repair, working order and condition,
making all needed replacements, additions and improvements thereto, to the
extent allowed by this
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Agreement. Notice of Default and Other Notices. (a) Notice of Default. Furnish
to Bank immediately upon becoming aware of the existence of any condition or
event which constitutes a Default (as defined in the Loan Documents) or any
event which, upon the giving of notice or lapse of time or both, may become a
Default, written notice specifying the nature and period of existence thereof
and the action which Borrower or Guarantor is taking or proposes to take with
respect thereto. (b) Other Notices. Promptly notify Bank in writing of (i) any
material adverse change in its financial condition or its business; (ii) any
default under any material agreement, contract or other instrument to which it
is a party or by which any of its properties are bound, or any acceleration of
the maturity of any indebtedness owing by Borrower or Guarantor; (iii) any
material adverse claim against or affecting Borrower, Guarantor, or any part of
its properties; (iv) the commencement of, and any material determination in, any
litigation with any third party or any proceeding before any governmental agency
or unit affecting Borrower or Guarantor; and (v) at least 30 days prior thereto,
any change in Borrower's or Guarantor's name or address as shown above, and/or
any change in Borrower's or Guarantor's structure. Other Financial Information.
Deliver promptly such other information regarding the operation, business
affairs, and financial condition of Borrower and Guarantor which Bank may
reasonably request. Compliance. The Borrower shall confirm in writing to Bank,
on a quarterly basis, that it is in compliance with all of the terms of this
Loan Agreement. Payment of Debts. Pay and discharge when due, and before subject
to penalty or further charge, and otherwise satisfy before maturity or
delinquency, all obligations, debts, taxes, and liabilities of whatever nature
or amount, except those which Borrower or Guarantor in good faith disputes.
Reporting Requirements. Comply with the following reporting requirements by
providing the following information to Bank: (i) quarterly 10Q Reports and
annual 10K reports of Borrower as filed with the S.E.C. no later than two weeks
of the time period required by the Securities and Exchange Commission for filing
said reports; (ii) financial records of Borrower and other subsidiaries of
Borrower as reasonably requested by the Bank; and (iii) such other financial
information or disclosure deemed necessary by the Bank from time to time.
NEGATIVE COVENANTS. Borrower and Guarantor agree that from the date of this
Agreement and until final payment in full of the Obligations, unless Bank shall
otherwise consent in writing, Borrower or Guarantor will not: Change in Fiscal
Year. Change the fiscal year of Borrower or Guarantor. Change of Management.
Change the Chief Executive Officer of The Goldfield Corporation, a Delaware
corporation. Default on Other Contracts or Obligations. Borrower and Guarantor
shall not default on any material contract with or obligation when due to a
third party or default in the performance of any obligation to a third party
incurred for money borrowed. Government Intervention. Permit the assertion or
making of any seizure, vesting or intervention by or under authority of any
government by which the management of Borrower or any guarantor is displaced of
its authority in the conduct of its respective business or its such business is
curtailed or materially impaired. Judgment Entered. Borrower and Guarantor shall
not permit the entry of any monetary judgment or the assessment against, the
filing of any tax lien against, or the issuance of any writ of garnishment or
attachment against any property of or debts due.
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FUTURE DRAWS. Future draws are to be at the request of the Borrower and at the
discretion of the Bank.
FINANCIAL COVENANTS. Borrower and Guarantor agree to the following provisions
from the date hereof until final payment in full of the Obligations, unless Bank
shall otherwise consent in writing, using the financial information for
Borrower, Guarantor, its subsidiaries, and its parent company, as applicable:
Deposit Relationship. Borrower and Guarantor shall maintain their primary
depository accounts and primary banking relationship with Bank. Bank
acknowledges that a portion of the deposit relationship will be maintained with
another financial institution. It is anticipated that this outside deposit
relationship will total approximately $500,000.00 on average. Tangible Net
Worth. The Goldfield Corporation, a Delaware corporation, shall maintain all of
the following ratios or amounts, tested quarterly, at calendar quarter-end: (i)
a minimum Tangible Net Worth of not less than $14,500,000.00. "Tangible Net
Worth" is defined as net worth, plus obligations contractually subordinated to
debts owed to Bank, minus goodwill and assets representing claims on
stockholders or affiliated entities; (ii) Outside Debt Limitation: Borrowings
for The Goldfield Corporation outside of those from Bank other than accounts
payable and other obligations incurred during the normal course of business
shall not exceed in the aggregate the sum of $500,000.00, excluding purchasing
card debt, within a fiscal year without the prior written consent of Bank; and
(iii) Maximum Debt to Worth Ratio: A maximum debt/worth ratio of 2.0:1 for The
Goldfield Corporation is to be maintained and tested quarterly. The ratio is to
be calculated by dividing total liabilities on the consolidated balance sheet of
The Goldfield Corporation by the Tangible Net Worth of The Goldfield Corporation
as defined above.
CONDITIONS PRECEDENT. The obligations of Bank to make the loan and any advances
pursuant to this Agreement are subject to the following conditions precedent:
Additional Documents. Receipt by Bank of such additional supporting documents as
Bank or its counsel may reasonably request.
CROSS DEFAULT. At Bank's option, any default in payment or performance of any
obligation under any other loans, contracts or agreements of Borrower,
Guarantor, any Subsidiary or Affiliate of Borrower or Guarantor, with Bank or
its affiliates ("Affiliate" shall have the meaning as defined in 11 U.S.C. ss.
101, except that the term "Borrower" or "Guarantor", respectively, shall be
substituted for the term "Debtor" therein; "Subsidiary" shall mean any business
in which Borrower or Guarantor holds, directly or indirectly, greater than a 50%
ownership interest) shall constitute a default under this Loan Agreement.
COLLATERAL. The obligations of Borrower and Guarantor pursuant to the Note and
Loan Documents shall be secured by a perfected security interest in that certain
equipment referenced in the Security Agreement between Borrower and Bank of even
date herewith.
NOTICE AND CURE PERIOD. Notwithstanding any provision in this Loan Agreement,
the Note, or the Loan Documents to the contrary, an event of default shall not
be deemed to have occurred hereunder as to a non-monetary provision of this Loan
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Agreement unless and until the Borrower shall fail to cure and remedy said
non-monetary breach or default within thirty (30) days after the Borrower has
received written notice thereof from the Bank, and an event of default shall not
be deemed to have occurred hereunder as to a monetary provision of the Loan
Agreement unless and until the Borrower shall fail to cure and remedy said
monetary breach or default within ten (10) days after the Borrower has received
written notice thereof from the Bank.
GUARANTY OF OBLIGATIONS. The Obligations set forth in the Note and other Loan
Documents shall be guaranteed by the subsidiaries of The Goldfield Corporation
with the exception of those entities which are no longer operating and which do
not maintain total assets in excess of $250,000.00. The Borrower shall obtain
guaranty agreements, in form and content acceptable to Lender, within 10 days of
written request from Lender to Borrower for same, if required in accordance with
the provisions of this paragraph.
IN WITNESS WHEREOF, Borrower, Guarantor, and Bank, on the day and year first
written above, have caused this Agreement to be executed under seal.
"BORROWER"
SOUTHEAST POWER CORPORATION,
a Florida corporation
By: /s/ STEPHEN R. WHERRY (SEAL)
-----------------------------
STEPHEN R. WHERRY
Treasurer
"GUARANTOR"
THE GOLDFIELD CORPORATION,
a Delaware corporation
By: /s/ STEPHEN R. WHERRY (SEAL)
-----------------------------
STEPHEN R. WHERRY
Treasurer
PINEAPPLE HOUSE OF BREVARD, INC.,
a Florida corporation
By: /s/ STEPHEN R. WHERRY (SEAL)
-----------------------------
STEPHEN R. WHERRY
Treasurer
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BAYSWATER DEVELOPMENT CORPORATION,
a Florida corporation
By:/s/ STEPHEN R. WHERRY (SEAL)
----------------------------
STEPHEN R. WHERRY
Treasurer
OAK PARK OF BREVARD, INC.,
a Florida corporation
By: _/s/ STEPHEN R. WHERRY (SEAL)
------------------------------
STEPHEN R. WHERRY
Treasurer
"BANK"
BRANCH BANKING AND TRUST COMPANY
By:/s/ BARRY FORBES (SEAL)
-----------------------
BARRY FORBES
Senior Vice President
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