REVOLVING LINE OF CREDIT
PROMISSORY NOTE
$6,000,000.00
August 26, 2005
-------, ------
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 6430 North
Wickham Road, Melbourne, Florida 32940, or
at such other place as the Holder of
this Note may designate in writing, the
principal sum of SIX MILLION AND NO/100
DOLLARS ($6,000,000.00), 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:
a. Adjusted LIBOR Rate means a rate of interest per annum equal to
the
sum obtained
(rounded upwards, if necessary, to the next higher 1/100th 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 %.
b. One Month LIBOR means the average rate (rounded upwards, if
necessary, to
the next higher 1/100th 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.
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.
<PAGE>
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.
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.
f. Standard Rate means, for any day, a rate per annum (rounded
upwards, if
necessary to the next higher 1/100th of 1.0%) equal to the
Bank's announced
Prime Rate, 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.
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.
h. Adjusted LIBOR Based Rate Protections.
(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.
(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
2
<PAGE>
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.
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
September 26, 2005, and shall be payable on
the 26th 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
judgement 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.
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 h
