EXHIBIT 10-2
REVOLVING LINE OF CREDIT
PROMISSORY NOTE
|
$6,000,000.00
|
September 28, 2006
|
|
|
Dated effective August 26, 2006
|
|
|
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 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 1/100 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% .
|
|
|
|
|
|
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.
|
|
|
|
|
|
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.
|
|
|
|
|
|
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 1/100 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.
|
|
|
|
|
|
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 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, 2007.
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, 2006, 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.
2
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 held by the Holder to secure payment of this
Note and to the
|
