LOAN AGREEMENT
August 26, 2005
THIS AGREEMENT, made as of the date set forth above, in favor of BRANCH
BANKING AND TRUST COMPANY, (the "Bank"), by THE GOLDFIELD CORPORATION, a
Delaware corporation (the "Borrower"), and SOUTHEAST POWER CORPORATION, a
Florida corporation, OAK PARK OF BREVARD, INC., a Florida corporation, BAYSWATER
DEVELOPMENT CORPORATION, a Florida corporation, and PINEAPPLE HOUSE OF BREVARD,
INC., a Florida corporation (collectively the "Guarantor").
In consideration of the Bank making a loan of $6,000,000.00 to Borrower
(the "loan"), as evidenced by a promissory note of even date herewith (the
"note"), Borrower and Guarantor agree as follows:
1. Definitions and Reference Terms. In addition to any other terms defined
herein, the following terms shall have the meaning set forth with respect
thereto:
(a) Pre-Sale is a binding contract between Borrower and a third party
purchaser regarding the purchase of all or a portion of a qualified real estate
project accompanied by a non-refundable deposit of at least ten percent (10%) of
the purchase price;
(b) Net Proceeds are the gross sales price from the specific unit in the
condominium less tax prorations and ordinary and customary expenses incurred in
the sale of the particular unit;
(c) Total Costs for a project are all costs including soft costs and land
costs associated with the construction and delivery of a condominium project.
Excluded are allocations for Borrower's overhead costs and anticipated profit.
(d) 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).
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(e) Obligations as used in the Note and the other Loan 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.
(f) 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.
2. Representations and Warranties. To induce the Bank to make the loan,
Borrower and Guarantor make the following representations and warranties, which
shall survive the execution and delivery of the note:
(a) The financial information furnished to Bank in connection with its
application for the loan and in the financial statements submitted to Bank is
complete and accurate and Borrower has no material undisclosed direct or
contingent liabilities.
(b) Borrower and Guarantor are each duly organized, existing and in good
standing under the laws of the states of their respective incorporations, each
have corporate power to carry on the business in which each is engaged, and the
obtaining and performance of the loan have been duly authorized by all necessary
action of the board of directors and shareholders of each, respective,
corporation under applicable law, and do not and will not (i) violate any
provision of law or any of its organizational or other organic documents, or
(ii) result in a breach of, constitute a default under, require any consent
under, or result in the creation of any lien, charge, or encumbrance upon any
property of Borrower or Guarantor pursuant to any instrument, order, or other
agreement to which Borrower and/or Guarantor is a party or by which Borrower or
Guarantor, any of its officers as such, or any of its property is bound.
(c) There are no judgments, liens, encumbrances, or other security
interests outstanding against Borrower or Guarantor or any of their property
other than those disclosed to Bank in connection with its request for the loan.
(d) Neither Borrower nor Guarantor have incurred any debts, liabilities,
or obligations and has not committed itself to incur any debts, liabilities, or
obligations other than those disclosed to Bank in connection with its request
for the loan or shown on the financial statements submitted to Bank.
(e) Borrower and Guarantor are in substantial compliance with all
applicable federal and state securities laws. All of the information provided to
the federal and state securities regulators is complete and accurate, and will
continue to be complete and accurate.
3. Use of Loan Proceeds. The proceeds of the loan will be used only for the
purpose or purposes of financing the costs of qualified real estate projects
(herein defined) in
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Florida. Proceeds will not be used to purchase "margin stock" pursuant to
Regulation U of the Federal Reserve Board or fund distribution to shareholders.
4. Definition of Tangible Net Worth. "Tangible Net Worth" is to be defined
as net worth, minus goodwill and assets representing claims on stockholders or
affiliated entities. Borrower's Tangible Net Worth will be tested annually at
fiscal year end.
5. Affirmative Covenants. Borrower and Guarantor hereby covenant with the
Bank that Borrower and Guarantor shall:
(a) Reserve and keep in force all licenses, permits, and franchises
necessary for the proper conduct of its business and duly pay and discharge all
taxes, assessments, and governmental charges upon Borrower or against Borrower's
property before the date on which penalties attach thereto, unless and to the
extent only that the same shall be contested in good faith and by appropriate
proceedings.
(b) Maintain with financially sound and reputable insurance companies
insurance of the kinds, covering the risks, and in the amounts usually carried
by companies engaged in business similar to that of Borrower and/or Guarantor.
Borrower and Guarantor will also exhibit or deliver such policies of insurance
to Bank upon request by Bank and provide appropriate loss payable or mortgagee
clauses in the insurance policies in favor of Bank, as its interest may appear,
when requested by Bank.
(c) There shall be no change in the Borrower's current Chief Executive
Officer without prior written consent of the Bank.
(d) Permit a representative or agent of Bank to examine and audit any or
all of Borrower's or Guarantor's books and records when requested by Bank.
(e) Inform Bank immediately of any material adverse change in the
financial condition of Borrower or Guarantor. Borrower and Guarantor will also
promptly inform Bank of any litigation or threatened litigation which might
substantially affect Borrower's or Guarantor's financial condition.
(f) Maintain Borrower's and Guarantor's property and equipment in a state
of good repair.
(g) Maintain all of the following ratios or amounts, tested quarterly, at
calendar quarter-end:
(1) A minimum Tangible Net Worth of not less than $14,500,000.00 as of
the date hereof and throughout the term of the Loan.
(2) Outside Debt Limitation: Borrowings outside of those from Branch
Banking and Trust Company 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 purchase card debt, within a fiscal year
without the prior written consent of Bank.
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(3) A maximum Debt to Tangible Net Worth Ratio of 2.0:1 is to be
maintained throughout the term of the Loan. This ratio will be tested quarterly.
This 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.
In the event of a violation, the Bank may exercise such remedies available
to it as set forth herein, in the note, and all of the other loan documents. All
defined terms shall have the same meaning in accordance with generally accepted
accounting principles applied on a consistent basis.
(h) Abide by the terms and conditions set forth in this Agreement, the
note, and all of the other documents evidencing or securing this loan.
(i) Maintain its primary deposit relationship with Bank. Guarantor, and
any subsidiaries of Borrower and/or Guarantor, shall also maintain their primary
deposit relationship with Bank. The Bank acknowledges that a portion of the
deposit relationship will be maintained with another financial institution in
order to accommodate payroll processing. It is anticipated that this outside
deposit relationship will total approximately $500,000.00 on average.
(j) Comply with the following reporting requirements by providing the
following information to Bank:
(1) Quarterly 10Q Reports and annual 10K reports of Borrower and
Guarantor when filed with the S.E.C., within two weeks of the time required for
filing by the Securities and Exchange Commission.
(2) Financial records for Southeast Power Corporation and other
subsidiaries as reasonably requested by the Bank.
(3) Such other financial information or disclosure deemed necessary by
the Bank from time to time.
6. Negative Covenants. Borrower and Guarantor will not, except in the
ordinary course of its business:
(a) Incur any additional indebtedness, or assume or undertake to assume
or guaranty any additional contingent liability, or assign, mortgage, pledge,
encumber, grant any security interest in, or transfer any of Borrower's or
Guarantor's assets, whether now owned or hereafter acquired. For the purposes
hereof, the sale or assignment of accounts receivable and the execution of
leases or rental agreements shall constitute incurring indebtedness for
borrower, and the execution of any guaranty agreement or letter of credit
agreement shall constitute the incurrence of a contingent liability.
(b) Guarantee, endorse, or otherwise become surety for or upon the
obligation of any person, firm, or corporation.
(c) Lend additional money or credit, or make new loans, to any person,
firm, or corporation, in excess of $500,000.00.
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(d) Enter into any merger or consolidation, or sell, lease, transfer, or
otherwise dispose of all or any substantial part of its assets (except in the
ordinary course of business), whether now owned or hereafter acquired; or change
its name or any name in which it does business; or move its principal place of
business without giving concurrent written notice thereof to Bank.
7. Security For Loan. The Borrower and the subsidiary of Borrower and/or
Guarantor which has legal title to the real property to be developed as a
qualified real estate project hereunder shall execute and deliver to Bank an
Agreement Not to Encumber or Transfer Property in form satisfactory to Bank in
its sole discretion; a copy of which is attached hereto as Exhibit "A" and
incorporated herein by reference. The Bank may also request from such entity
proof that it has valid title to the subject real property, free and clear of
any liens or encumbrances, other than real property taxes and assessments.
8. Guaranty of the Loan. The note and all obligations of the loan as set
forth in the 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. Upon
the request of Bank, the Borrower shall obtain such additional executed and
binding guaranty agreements, in form and content acceptable to the Bank, as may
be required for Borrower to comply with the provisions of this paragraph.
9. Conditions for Disbursements. A qualified real estate project
("qualified project") shall satisfy the following requirements which shall also
be requirements for each disbursement under the Loan:
(1) The contracts for sale and purchase of pre-sales of the qualified
project(s) (in their entirety or as to a portion thereof) shall contain a
provision providing that the prospective buyer's deposit shall be at least 10%
of the purchase price and shall be non-refundable to the prospective buyer if
the buyer fails to close on the purchase of the qualified project for any
reason, other than Borrower's inability to deliver clear title. Presales with a
minimum ten percent (10%) non-refundable deposit are to be at a level sufficient
to cover all project costs less invested equity in each qualified project.
(2) The funds available on the line at the time of the initial draw
for a particular project are sufficient to provide for all the remaining funding
necessary to complete the qualified project and deliver the property under the
terms of the presales. All of the Net Proceeds from the sale of a qualified
project (or a portion thereof) shall be applied against the principal balance
due on the note as a principal reduction to the line of credit until such time
as all of the proceeds advanced for the particular project have been repaid.
(3) The anticipated gross sales prices for the units in all projects
are sufficient to provide Borrower or its subsidiaries with a minimum of a 10%
return on the total costs of all projects.
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(4) Draws for all projects are not to exceed 100% of the Total Costs
of all the projects.
(5) The construction contract for the qualified projects to be
financed hereunder are to be fixed price, and supported by payment and
performance bonds for the full cost of construction. The contract may include
allowances for particular items such as appliances and flooring which together
do not exceed ten percent (10%) of the total contract value. Bank reserves the
right to approve the format of said bonds, as well as the quality of the
insurer.
(6) The general contractor(s) in charge of the construction of the
qualified projects must have a high level of experience in the construction of
qualified projects being constructed by Borrower. M.H. Williams Construction,
Inc. is acceptable to the Bank as a qualified contractor for the construction of
the current and planned condominium projects of the Borrower.
(7) Should any construction liens be filed against the real property
being developed as qualified projects, Borrower shall have seventy-five (75)
days from receipt of said lien to obtain a release of same, or bond the lien off
according to Florida Statutes.
(8) On a quarterly basis, Borrower is to confirm that Borrower is in
compliance with all terms of this Loan Agreement.
(9) Should Borrower fail to satisfy the financial requirements as set
forth hereunder, it shall, within thirty (30) days of request by Bank, pay such
amounts to Bank as may be required to cause Borrower to return to compliance
with the terms hereof. Failure to pay such amounts, shall be a default
hereunder, and under the note and all other documents evidencing or securing
same.
(10) An agreement not to encumber the real estate associated with the
qualified project is to be recorded in the public records of the appropriate
county in Florida.
10. Events of Default. The Bank shall have the option to declare the entire
unpaid amount of the loan and accrued interest immediately due and payable,
without presentment, demand, or notice of any kind, if any of the following
events occurs before the loan is fully repaid:
(a) Any payment of principal or interest on the loan is not made when
due.
(b) Any provision of this Agreement is breached or proves to be untrue or
misleading in any material respect.
(c) Any warranty, representation, or statement made or furnished the Bank
by Borrower or Guarantor in connection with the loan and this Agreement
(including any warranty, representation, or statement in the Borrowers financial
statements) or to induce the Bank to make the loan, is untrue or misleading in
any material respect.
(d) Any default occurs under any agreement with another financial
institution, which default is not corrected within the cure period provided in
such agreement, if any.
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(e) Any voluntary or involuntary bankruptcy, reorganization, insolvency,
arrangement, receivership, or similar proceeding is commenced by or against
Borrower under any federal or state law, or Borrower makes any assignment for
the benefit of creditors.
(f) Any substantial part of the inventory, equipment, or other property
of the Borrower, real or personal, tangible or intangible, is damaged or
destroyed and the damage or destruction is not covered by collectible insurance.
(g) Borrower or Guarantor defaults in the payment of any principal or
interest on any obligation to Bank or any other creditor.
(h) Borrower suffers or permits any lien, encumbrance, or security
interest to arise or attach to any of the Borrower's property, or any judgment
is entered against Borrower or Guarantor that is not satisfied or appealed
within thirty days (excluding construction related liens as noted herein).
(i) Notwithstanding the foregoing, there shall be a thirty (30) day grace
period for any non-monetary default as provided hereunder, and a ten (10) day
grace period for any monetary default.
11. 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.
12. Remedies Upon Default. Upon the occurrence of, or the discovery by Bank
of the occurrence, of any of the foregoing events, circumstances, or conditions
of default, Bank shall have, in addition to its option to declare the entire
unpaid amount of the loan and accrued interest thereon immediately due and
payable, all of the rights and remedies of a secured party under applicable
State law. Without in any way limiting the generality of the foregoing, Bank
shall also have the following specific rights and remedies:
(a) To exercise any and all rights of set-off which Bank may have against
any account, fund, or property of any kind, tangible or intangible, belonging to
Borrower or Guarantor which shall be in Bank's possession or under its control.
(b) To cure such defaults, with the result that all costs and expenses
incurred or paid by Bank in effecting such cure shall be additional charges on
the Loan which bear interest at the interest of the Loan and are payable upon
demand.
13. Waiver. No failure or delay on the part of Bank in exercising any power
or right hereunder, and no failure of Bank to give Borrower or Guarantor notice
of a default hereunder, shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power preclude any other or further
exercise thereof or the exercise of any
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other right or power hereunder. No modification or waiver of any provision of
this Agreement or any instrument executed pursuant hereto or consent to any
departure by Borrower or Guarantor from this Agreement or such instrument shall
in any event be effective unless the same shall be in writing, and such waiver
or consent shall be effective only in the specific instance and for the
particular purpose for which given.
14. Benefit. This Agreement shall be binding upon and shall inure to the
benefit of Borrower, Guarantor and Bank and their respective successors and
assigns. Bank may assign this Agreement in whole or in part with any assignment
of the loan. Borrower may not assign this Agreement or its obligations under the
loan without Bank's written consent.
15. Construction. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida, and any litigation arising out
of or relating to this Agreement or the loan shall be commenced and conducted in
the courts of that State or in the federal courts of that State.
16. 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 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.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the 26
day of August, 2005. BORROWER:
THE GOLDFIELD CORPORATION,
a Delaware Corporation
By: /s/ STEPHEN R. WHERRY
---------------------------
STEPHEN R. WHERRY
Treasurer
GUARANTOR:
SOUTHEAST POWER CORPORATION,
a Florida Corporation
By: /s/ STEPHEN R. WHERRY
---------------------------
STEPHEN R. WHERRY
Treasurer
PINEAPPLE HOUSE OF BREVARD, INC.,
a Florida corporation
By: /s/ STEPHEN R. WHERRY (SEAL)
-----------------------
STEPHEN R. WHERRY
Treasurer
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
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ACCEPTED BY:
BRANCH BANKING AND TRUST COMPANY
By: /s/ BARRY FORBES
---------------------------
BARRY FORBES
Senior Vice President
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EXHIBIT "A"
PREPARED BY AND RETURN TO:
LYNNE R. WILSON, ESQUIRE
SHUFFIELD, LOWMAN & WILSON, P.A.
1000 Legion Place, Suite 1000
Orlando, Florida 32801
AGREEMENT NOT TO ENCUMBER OR TRANSFER PROPERTY
As an inducement to BRANCH BANKING AND TRUST COMPANY (hereinafter called
"Bank"), to grant credit to the undersigned under a promissory note for the sum
of $______________ dated of even date herewith and in consideration thereof, the
undersigned, their successors, heirs and assigns (hereinafter called
"Borrower"), agrees that until said instrument and any extension or renewal
thereof shall have been paid in full, (1) Borrower will pay all taxes,
assessments, dues and charges of every kind, imposed or which may be imposed or
levied upon their real and personal property prior to the time when any of such
taxes, assessments, dues or charges shall become delinquent, and (b) Borrower
will not, without the consent in writing of Bank first had and obtained, (1)
create or permit any lien or other encumbrances (other than presently existing
liens and liens securing the payment of loans and advances made to them by Bank)
to exist on their property, real or personal, as described in attached Exhibit
A, or (2) transfer, sell, hypothecate, assign or in any manner whatever dispose
of the said property, or any interest therein, the following described real
property situate in the County of Brevard, State of Florida.
SEE EXHIBIT "A"
It is further agreed and understood that if default be made in the
performance of any of the terms hereof, or of any instrument executed by
Borrower in connection herewith, or in the payment of any indebtedness or
obligation of Borrower now or hereafter owing to Bank, Bank may, at it election,
in addition to all other remedies and rights which it may have by law, declare
the entire remaining unpaid principal and interest of any such obligations or
indebtedness then remaining unpaid to the Bank due and payable forthwith.
It is further agreed and understood that Bank may, in its discretion, and
is hereby authorized and permitted by Borrowers to cause this instrument to be
recorded at such time and in such places as Bank may, in its discretion, elect.
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Signed, sealed and delivered
in the presence of:
_______________________________,
a ________________ corporation
________________________________ By:_____________________________
Print Name:_____________________ Print Name:______________________
Title:____________________________
________________________________
Print Name:_____________________
STATE OF FLORIDA
COUNTY OF ________________
The foregoing instrument was executed, sworn to and acknowledged before me
this _________________, 2005, by___________________, as _________________ of
_____________________________________, on its behalf.
___________________________
Signature of Notary Public
(SEAL)
___________________________
Name of Notary Public
(Typed, Printed or stamped)
Personally Known ____________________ OR Produced Identification_______________
Type of Identification Produced:_______________________________________________
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