Exhibit 10-5

**LOAN AGREEMENT**

Wachovia Bank, NationalAssociation214 North Hogan Street -FL0070Jacksonville, Florida  32202(Hereinafter referred toas the "Bank")

Southeast Power Corporation100 Rialto PlaceSuite 500Melbourne, Florida  32901-3082

The Goldfield Corporation100 Rialto PlaceSuite 500Melbourne, Florida  32901-3082(Individually andcollectively "Borrower")

This Loan Agreement ("Agreement") is entered into January 30, 2004, by and between Bank and Borrower.

ThisAgreement applies to the loan or loans (individually and collectively, the"Loan") evidenced by one or more promissory notes dated January 30, 2004 or other notes subject hereto, as modified from timeto time (whether one or more, the "Note") and all Loan Documents. The terms "Loan Documents" and "Obligations," as used inthis Agreement, are defined in the Note.

Relying upon thecovenants, agreements, representations and warranties contained in thisAgreement, Bank is willing to extend credit to Borrower upon the terms and subjectto the conditions set forth herein, and Bank and Borrower agree as follows:

**REPRESENTATIONS.**  Borrower represents that from thedate of this Agreement and until final payment in full of the Obligations:  **AccurateInformation.**  All information now and hereafter furnished to Bank is andwill be true, correct and complete.  Any such information relating toBorrower's financial condition will accurately reflect Borrower's financialcondition as of the date(s) thereof, (including all contingent liabilities ofevery type), and Borrower further represents that its financial condition hasnot changed materially or adversely since the date(s) of such documents.  **Authorization;Non-Contravention.**  The execution, delivery and performance by Borrower andany guarantor, as applicable, of this Agreement and other Loan Documents towhich it is a party are within its power, have been duly authorized as may berequired and, if necessary, by making appropriate filings with any governmentalagency or unit and are the legal, binding, valid and enforceable obligations ofBorrower and any guarantors; and do not (i) contravene, or constitute (with orwithout the giving of notice or lapse of time or both) a violation of anyprovision of applicable law, a violation of the organizational documents ofBorrower or any guarantor, or a default under any agreement, judgment,injunction, order, decree or other instrument binding upon or affectingBorrower or any guarantor, (ii) result in the creation or imposition of anylien (other than the lien(s) created by the Loan Documents) on any ofBorrower's or any guarantor's assets, or (iii) give cause for the accelerationof any obligations of Borrower or any guarantor to any other creditor.  **AssetOwnership.**  Borrower has good and marketable title to all of the propertiesand assets reflected on the balance sheets and financial statements suppliedBank by Borrower, and all such properties and assets are free and clear ofmortgages, security deeds, pledges, liens, charges, and all other encumbrances,except as otherwise disclosed to Bank by Borrower in writing and approved byBank ("Permitted Liens").  To Borrower's knowledge, no default hasoccurred under any Permitted Liens and no claims or interests adverse toBorrower's present rights in its properties and assets have arisen.  **Dischargeof Liens and Taxes.**  Borrower has duly filed, paid and/or discharged alltaxes or other claims which may become a lien on any of its property or assets,except to the extent that such items are being

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appropriately contested in goodfaith and an adequate reserve for the payment thereof is being maintained.  **Sufficiencyof Capital.**  Borrower is not, and after consummation of this Agreement andafter giving effect to all indebtedness incurred and liens created by Borrowerin connection with the Note and any other Loan Documents, will not be,insolvent within the meaning of 11 U.S.C. § 101(32).  **Compliance with Laws.** Borrower is in compliance in all respects with all federal, state and locallaws, rules and regulations applicable to its properties, operations, business,and finances, including, without limitation, any federal or state laws relatingto liquor (including 18 U.S.C. § 3617, et seq.) or narcotics (including 21U.S.C. § 801, et seq.) and/or any commercial crimes; all applicable federal,state and local laws and regulations intended to protect the environment; andthe Employee Retirement Income Security Act of 1974, as amended("ERISA"), if applicable.  **Organization and Authority.**  Eachcorporate or limited liability company Borrower and/or guarantor, asapplicable, is duly created, validly existing and in good standing under thelaws of the state of its organization, and has all powers, governmentallicenses, authorizations, consents and approvals required to operate itsbusiness as now conducted.  Each corporate or limited liability companyBorrower and/or guarantor, as applicable, is duly qualified, licensed and ingood standing in each jurisdiction where qualification or licensing is requiredby 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 onthe business, financial position, results of operations, properties orprospects of Borrower or any such guarantor.  **No Litigation.**  Thereare no pending or threatened suits, claims or demands against Borrower or anyguarantor that have not been disclosed to Bank by Borrower in writing, andapproved by Bank.  **Regulation U.**  None of the proceeds of the creditextended pursuant to this Agreement shall be used directly or indirectly forthe purpose of purchasing or carrying any margin stock in violation of any ofthe provisions of Regulation U of the Board of Governors of the Federal ReserveSystem ("Regulation U"), or for the purpose of reducing or retiringany indebtedness which was originally incurred to purchase or carry marginstock or for any other purchase which might render the Loan a "PurposeCredit" within the meaning of Regulation U.

**AFFIRMATIVECOVENANTS.**  Borrower agreesthat from the date hereof and until final paymentin full of the Obligations, unless Bank shall otherwise consent in writing,Borrower will:  **Access to Books and Records.**  Allow Bank, or itsagents, during normal business hours, access to the books, records and suchother documents of Borrower as Bank shall reasonably require, and allow Bank,at Borrower's expense, to inspect, audit and examine the same and to make extractstherefrom and to make copies thereof.     **BusinessContinuity.**  Conduct its business in substantially the same manner andlocations as such business is now and has previously been conducted. **Compliancewith Other Agreements.**  Comply with all terms and conditions contained inthis Agreement, and any other Loan Documents, and swap agreements, ifapplicable, as defined in the 11U.S.C. § 101.  **EstoppelCertificate.**  Furnish, within 15 days after request by Bank, a writtenstatement duly acknowledged of the amount due under the Loan and whetheroffsets or defenses exist against the Obligations.  **Insurance**.  Maintainadequate insurance coverage with respect to its properties and business againstloss or damage of the kinds and in the amounts customarily insured against bycompanies of established reputation engaged in the same or similar businessesincluding, without limitation, commercial general liability insurance, workerscompensation insurance; all acquired in such amounts and from such companies asBank may reasonably require.     **MaintainProperties.**  Maintain, preserve and keep its property in good repair,working order and condition, making all needed replacements, additions andimprovements thereto, to the extent allowed by this Agreement.   **Notice ofDefault and Other Notices.**  (a) **Notice of Default.**  Furnish to Bankimmediately upon becoming aware of the existence of any condition or eventwhich constitutes a Default (as defined in the Loan Documents) or any eventwhich, upon the giving of notice or lapse of time or both, may become aDefault, written notice specifying the nature and period of existence thereofand the action which Borrower is taking or proposes to take with respectthereto.  (b) **Other Notices.**  Promptly notify Bank in writing of (i) anymaterial adverse change in its financial condition or its business; (ii) anydefault under any material agreement, contract or other instrument to which itis a party or by which any of its properties are bound, or any acceleration ofthe maturity of any indebtedness owing by Borrower; (iii) any material adverseclaim against or affecting Borrower or any part of its properties; (iv) thecommencement of, and any material determination in, any litigation with anythird party or any proceeding before any governmental agency or unit affectingBorrower; and (v) at least 30 days prior thereto, any change in Borrower's nameor address as shown above, and/or any change in Borrower's structure.   **Other Financial Information.**  Deliverpromptly such other information regarding the operation, business affairs, andfinancial condition of Borrower which Bank may reasonably request.  **Payment of Debts.**  Pay and dischargewhen due, and before subject to penalty or further charge, and otherwisesatisfy before maturity or delinquency, all obligations, debts, taxes, andliabilities of whatever nature or amount, except those which Borrower in goodfaith disputes.  **Reporting Requirements. **Comply with the followingreporting requirements by providing the following information to Bank: (i)quarterly 10Q Reports and annual 10K reports of Borrower when filed with theS.E.C. but no later than 125 days after fiscal year end, or quarter end, as thecase may be; and (ii) such other financial information or disclosure deemednecessary by the Bank from time to time.  

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**NEGATIVE COVENANTS.**  Borrower agrees that from the date of thisAgreement and until final payment in full of the Obligations, unless Bank shallotherwise consent in writing, Borrower will not:   **Change in FiscalYear.**  Change the fiscal year of Borrower.  **Change of Management.** Change the Borrower's current Chief Executive Officer without prior writtenconsent of the Bank.  Executive personnel and management of the Borrower shallbe maintained to the reasonable satisfaction of Bank.   **Default onOther Contracts or Obligations.**  Borrower shall not default on any materialcontract with or obligation when due to a third party or default in theperformance of any obligation to a third party incurred for money borrowed.  **GovernmentIntervention.**  Permit the assertion or making of any seizure, vesting orintervention by or under authority of any government by which the management ofBorrower or any guarantor is displaced of its authority in the conduct of itsrespective business or its such business is curtailed or materially impaired.  **JudgmentEntered.**  Borrower shall not permit the entry of any monetary judgment orthe assessment against, the filing of any tax lien against, or the issuance ofany writ of garnishment or attachment against any property of or debts due.

**FINANCIAL COVENANTS.**  Borrower agrees to the followingprovisions from the date hereof until final payment in full of the Obligations,unless Bank shall otherwise consent in writing, using the financial informationfor Borrower, its subsidiaries, affiliates and its holding or parent company,as applicable:  **Deposit Relationship.**  Borrower shall maintainits primary depository account with Bank.  **Tangible Net Worth.** Borrower shall maintain all of the following ratios or amounts, testedquarterly, at calendar quarter-end: (i) a minimum Tangible Net Worth of notless than $14,500,000.00.  "Tangible Net Worth" is defined as total net worthless any intangible assets, loans to related parties, or leans due from officers. Deferred taxes will be included in the definition of Tangible Net Worth; (ii) acurrent ratio of not less than 2.0:1.0.  Current Ratio is defined as the ratioof current assets to current liabilities.  Real estate held for resale and thedebts associated with this real estate are to be excluded from thiscalculation; and (iii) a maximum Debt to Tangible Net Worth Ratio not to exceed..60:1.0.

**CONDITIONSPRECEDENT.**  Theobligations of Bank to make the loan and any advances pursuant to thisAgreement are subject to the following conditions precedent:  **AdditionalDocuments.**  Receipt by Bank of such additional supporting documents as Bankor its counsel may reasonably request.

**CROSSDEFAULT.**  At Bank'soption, any default in payment or performance of any obligation under any otherloans, contracts or agreements of Borrower, any Subsidiary or Affiliate ofBorrower, any general partner of or the holder(s) of the majority ownershipinterests of Borrower with Bank or its affiliates ("Affiliate" shallhave the meaning as defined in 11 U.S.C. § 101, except that the term"Borrower" shall be substituted for the term "Debtor"therein; "Subsidiary" shall mean any business in which Borrowerholds, directly or indirectly, a controlling interest) shall constitute adefault under this Loan Agreement.

[SIGNATURES ON FOLLOWING PAGE]

 

 

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**IN WITNESS WHEREOF**, Borrower and Bank, on the day and year firstwritten above, have caused this Agreement to be executed under seal.

                                                SoutheastPower Corporation

                                                By:/s/ Stephen R. Wherry                                  (SEAL)                                                      StephenR. Wherry, Treasurer

                                                TheGoldfield Corporation

                                                By:/s/ Stephen R. Wherry                                  (SEAL)                                                      StephenR. Wherry, Treasurer

 

                                                WachoviaBank, National Association

                                                By:/s/ Peter B. Rochester                                  (SEAL)                                                     Peter B. Rochester, Vice President

 

 

 

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**PROMISSORY NOTE**

$2,600,000.00

January 30, 2004

Southeast Power Corporation100 Rialto PlaceSuite 500Melbourne, Florida  32901-3082

The Goldfield Corporation100 Rialto PlaceSuite 500Melbourne, Florida  32901-3082(Individually andcollectively "Borrower")

Wachovia Bank, NationalAssociation214 North Hogan Street -FL0070Jacksonville, Florida  32202(Hereinafter referred toas "Bank")

Borrower promises to payto the order of Bank, in lawful money of the United States of America, at itsoffice indicated above or wherever else Bank may specify, the sum of TwoMillion, Six Hundred Thousand and No/100 Dollars ($2,600,000.00) or such sum as may be advanced and outstandingfrom time to time, with interest on the unpaid principal balance at the rateand on the terms provided in this Promissory Note (including all renewals,extensions or modifications hereof, this "Note").

**LOAN AGREEMENT.**  This Note is subject to theprovisions of that certain Loan Agreement between Bank and Borrower of evendate herewith, as modified from time to time.

**TERM LOAN (WITH DRAWPERIOD). **From the date of this Note until andincluding September 30, 2004 (the "Conversion Date"), Borrower may borrow and, upon the request of Borrower, Bank shall advanceunder this Note from time to time (each an"Advance" and together the "Advances"), so long as thetotal principal balance outstanding at any one time does not exceed theprincipal amount stated on the face of this Note,subject to the limitations described in any loan agreement to which this Note is subject.  Bank's obligation to make Advances under thisNote shall terminate if Borrower is in Default under this Note.  As of the dateof each proposed Advance, Borrower shall be deemed to represent that eachrepresentation made in the Loan Documents is true as of such date.  Advances,once repaid, may not be reborrowed.

**USE OF PROCEEDS.**  Borrower shall use the proceeds ofthe loan(s) evidenced by this Note for the commercial purposes of Borrower, asfollows: to finance the purchase of bucket trucks and other equipment for towerand line construction.

**SECURITY.** Borrower has granted Bank a security interest in the collateral described inthe Loan Documents including personal property collateral described in thatcertain Security Agreement of even date herewith. 

**INTERESTRATE.** Interest shallaccrue on the unpaid principal balance of this Note from the date hereof at the LIBOR MarketIndex Rate plus 1.9%, as that rate may change from day to day in accordancewith changes in the LIBOR Market Index Rate ("InterestRate").  "LIBOR Market IndexRate", for any day, means the rate for 1 month U.S. dollar deposits asreported on Telerate page 3750 as of 11:00 a.m., London time, on such day, orif such day is not a London business day, then the immediately preceding Londonbusiness day (or if not so reported, then as determined by Bank from anotherrecognized source or interbank quotation).

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**DEFAULTRATE.**  In additionto all other rights contained in this Note, if a Default (asdefined herein) occurs and as long as a Default continues, all outstanding Obligations shall bear interest at the InterestRate plus 4%("Default Rate").  The Default Rate shall also apply from acceleration****until the Obligationsor any judgment thereon is paid in full.

**INTERESTAND FEE(S) COMPUTATION (ACTUAL/360).**  Interest and fees, if any, shall be computed on thebasis of a 360-day year for the actual number of days in the applicable period("Actual/360 Computation").  The Actual/360 Computation determinesthe annual effective yield by taking the stated (nominal) rate for a year'speriod and then dividing said rate by 360 to determine the daily periodic rateto be applied for each day in the applicable period.  Application of theActual/360 Computation produces an annualized effective interest rate exceedingthe nominal rate.

**REPAYMENTTERMS.**  This Noteshall be due and****payable as set forth hereinbelow.  From the dateof this Note until and including the Conversion Date, this Note shall be payablein consecutive monthly payments of accrued interest only, commencing on February 28, 2004, and continuing on the sameday of each month thereafter.  After the Conversion Date, this Note shall bepayable in consecutive monthly payments ofprincipal equal to one thirty-sixth of the outstanding principal balance ofthis Note on the Conversion Date, plus accrued interest, commencing on October 30, 2004, and continuing on the sameday of each month thereafter.  In any event, all principal and accrued interestshall be due and payable on September 30, 2007.

**APPLICATIONOF PAYMENTS.**  Moniesreceived by Bank from any source for application toward payment of theObligations shall be applied to accrued interest and then to principal.  If a Default occurs, monies may be applied to the Obligations inany manner or order deemed appropriate by Bank.

If anypayment received by Bank under this Note or other Loan Documents is rescinded,avoided or for any reason returned by Bank because of any adverse claim orthreatened action, the returned payment shall remain payable as an obligationof all persons liable under this Note or other Loan Documents as though suchpayment had not been made.

**DEFINITIONS. Loan Documents.**  Theterm "Loan Documents", as used in this Note and the other LoanDocuments, refers to all documents executed in connection with or related tothe loan evidenced by this Note and any prior notes which evidence all or anyportion of the loan evidenced by this Note, and any letters of credit issued pursuant to any loan agreement to whichthis Note is subject, any applications for such letters of credit and any otherdocuments executed in connection therewith or related thereto,**and may include,without limitation, a commitment letter that survives closing, a loanagreement, this Note, guaranty agreements, security agreements, securityinstruments, financing statements, mortgage instruments, any renewals ormodifications, whenever any of the foregoing are executed, but does not includeswap agreements (as defined in 11 U.S.C. § 101).  **Obligations.**  The term"Obligations", as used in this Note and the other Loan Documents,refers to any and all indebtedness and other obligations under this Note, allother obligations under any other Loan Document(s), and all obligations underany swap agreements (as defined in 11 U.S.C. § 101) between Borrowerand Bank whenever executed.  **Certain Other Terms.**  All terms that areused but not otherwise defined in any of the Loan Documents shall have thedefinitions provided in the Uniform Commercial Code.

**LATECHARGE.**  If anypayments are not timely made, Borrower shall also pay to Bank a late chargeequal to 5% of each payment past due for 15 or more days.

Acceptanceby Bank of any late payment without an accompanying late charge shall not bedeemed a waiver of Bank's right to collect such late charge or to collect alate charge for any subsequent late payment received.

 

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**ATTORNEYS'FEES AND OTHER COLLECTION COSTS.**  Borrower shall pay all of Bank's reasonable expenses incurred toenforce or collect any of the Obligations including, without limitation,reasonable arbitration, paralegals', attorneys' and experts' fees and expenses,whether incurred without the commencement of a suit, in any trial, arbitration,or administrative proceeding, or in any appellate or bankruptcy proceeding.

**USURY.**  If at any time the effectiveinterest rate under this Note would, but for this paragraph, exceed the maximumlawful rate, the effective interest rate under this Note shall be the maximumlawful rate, and any amount received by Bank in excess of such rate shall beapplied to principal and then to fees and expenses, or, if no such amounts areowing, returned to Borrower.

**DEFAULT.**  If any of the following occurs, a default("Default") under this Note shall exist:  **Nonpayment;Nonperformance.**  The failure of timely payment or performance of theObligations or Default under this Note or any other Loan Documents.  **FalseWarranty.**  A warranty or representation made or deemed made in the LoanDocuments or furnished Bank in connection with the loan evidenced by this Noteproves materially false, or if of a continuing nature, becomes materiallyfalse.  **Cross Default.**  At Bank's option, any default in payment orperformance of any obligation under any other loans, contracts or agreements ofBorrower, any Subsidiary or Affiliate of Borrower, any general partner of orthe holder(s) of the majority ownership interests of Borrower with Bank or itsaffiliates ("Affiliate" shall have the meaning as defined in 11U.S.C. § 101, except that the term "Borrower" shall be substitutedfor the term "Debtor" therein; "Subsidiary" shall mean anybusiness in which Borrower holds, directly or indirectly, a controllinginterest).  **Cessation; Bankruptcy.**  The death of, appointment of aguardian for, dissolution of, termination of existence of, loss of goodstanding status by, appointment of a receiver for, assignment for the benefitof creditors of, or commencement of any bankruptcy or insolvency proceeding byor against Borrower, its Subsidiaries or Affiliates, if any, or any generalpartner of or the holder(s) of the majority ownership interests of Borrower, orany party to the Loan Documents.  **Material Business Alteration.**  Withoutprior written consent of Bank, a material alteration in the kind or type ofBorrower's business.  **Material Capital Structure or Business Alteration.** Without prior written consent of Bank, (i) a material alteration in the kind ortype of Borrower's business or that of Bayswater Development Corporation, asubsidiary of The Goldfield Corporation; (ii) the sale of substantially all ofthe business or assets of Borrower or that of Bayswater DevelopmentCorporation, a subsidiary of The Goldfield Corporation, or any guarantor, or amaterial portion (10% or more) of such business or assets if such a sale isoutside the ordinary course of business of Borrower or Bayswater DevelopmentCorporation, a subsidiary of The Goldfield Corporation, or any guarantor,  ormore than 50% of the outstanding stock or voting power of or in any such entityin a single transaction or a series of transactions; or (iii) should anyBorrower or Bayswater Development Corporation, a subsidiary of The GoldfieldCorporation, or any guarantor enter into any merger or consolidation.  Notwithstandingthe foregoing, there shall be a thirty (30) day grace period for anynon-monetary default, and a fifteen (15) day grace period for any monetarydefault as provided hereinabove.

**REMEDIES UPON DEFAULT.**  If a Default occurs underthis Note or any Loan Documents, Bank may at any time thereafter, take thefollowing actions:  **Bank Lien.**  Foreclose its security interest orlien against Borrower's accounts without notice.  **Acceleration Upon Default.** Accelerate the maturity of this Note and, at Bank's option, any or all otherObligations, other than Obligations under any swap agreements (as defined in 11U.S.C. § 101) between Borrower and Bank, which shall be governed by the defaultand termination provisions of said swap agreements; whereuponthis Note and the accelerated Obligations shall be immediately due and payable;provided, however, if the Default is based upon a bankruptcy or insolvencyproceeding commenced by or against Borrower or any guarantor or endorser ofthis Note, all Obligations (other than Obligations under any swap agreement asreferenced above) shall automatically and immediately be due and payable.  **Cumulative.** Exercise any rights and remedies as provided under the Note and other LoanDocuments, or as provided by law or equity.

**FINANCIALAND OTHER INFORMATION.**  Borrower shall deliver to Bank such information as Bank may reasonablyrequest from time to time, including without limitation, financial statementsand information pertaining to Borrower's financial condition.  Such informationshall be true, complete, and accurate.

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**WAIVERSAND AMENDMENTS.**  Nowaivers, amendments or modifications of this Note and other Loan Documentsshall be valid unless in writing and signed by an officer of Bank.  No waiverby Bank of any Default shalloperate as a waiver of any other Default or the same Default on a futureoccasion.  Neither the failure nor any delay on the part of Bank in exercisingany right, power, or remedy under this Note and other Loan Documents shalloperate as a waiver thereof, nor shall a single or partial exercise thereofpreclude any other or further exercise thereof or the exercise of any otherright, power or remedy.

EachBorrower or any person liable under this Note waives presentment, protest,notice of dishonor, demand for payment, notice of intention to accelerate maturity, notice ofacceleration of maturity, notice of sale and all other notices of any kind. Further, each agrees that Bank may extend, modify or renew this Note or make anovation of the loan evidenced by this Note for any period, and grant anyreleases, compromises or indulgences with respect to any collateral securingthis Note, or with respect to any other Borrower or any other person liableunder this Note or other Loan Documents, all without notice to or consent ofeach Borrower or each person who may be liable under this Note or any otherLoan Document and without affecting the liability of Borrower or any person whomay be liable under this Note or any other Loan Document.

**MISCELLANEOUSPROVISIONS.  Assignment.**  This Note and the other Loan Documents shall inure to the benefit ofand be binding upon the parties and their respective heirs, legalrepresentatives, successors and assigns.  Bank's interests in and rights underthis Note and the other Loan Documents are freely assignable, in whole or inpart, by Bank.  In addition, nothing in this Note or any of the other LoanDocuments shall prohibit Bank from pledging or assigning this Note or any ofthe other Loan Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign its rights and interest hereunder without the priorwritten consent of Bank, and any attempt by Borrower to assign without Bank'sprior written consent is null and void.  Any assignment shall not release Borrowerfrom the Obligations.  **Applicable Law; Conflict Between Documents.**  ThisNote and, unless otherwise provided in any other Loan Document, the other LoanDocuments shall be governed by and construed under the laws of the state namedin Bank's address shown above without regard to that state's conflict of lawsprinciples.  If the terms of this Note should conflict with the terms of anyloan agreement or any commitment letter that survives closing, the terms ofthis Note shall control.  **Borrower'sAccounts.**  Borrower acknowledgesBank's set-off right in all Borrower's accounts with Bank and its affiliates inthe event of default under the Loan Documents.  **Jurisdiction.** Borrower irrevocably agrees to non-exclusive personal jurisdiction in the statenamed in Bank's address shown above.  **Severability.**  If any provision ofthis Note or of the other Loan Documents shall be prohibited or invalid underapplicable law, such provision shall be ineffective but only to the extent ofsuch prohibition or invalidity, without invalidating the remainder of suchprovision or the remaining provisions of this Note or other such document.  **Notices.** Any notices to Borrower shall be sufficiently given, if in writing and mailedor delivered to the Borrower's address shown above or such other address asprovided hereunder, and to Bank, if in writing and mailed or delivered toBank's office address shown above or such other address as Bank may specify inwriting from time to time.  In the event that Borrower changes Borrower's addressat any time prior to the date the Obligations are paid in full, Borrower agreesto promptly give written notice of said change of address by registered orcertified mail, return receipt requested, all charges prepaid.  **Plural;Captions.**  All references in the Loan Documents to Borrower, guarantor,person, document or other nouns of reference mean both the singular and pluralform, as the case may be, and the term "person" shall mean anyindividual, person or entity.  The captions contained in the Loan Documents areinserted for convenience only and shall not affect the meaning orinterpretation of the Loan Documents.  **Advances.**  Bank may, in its solediscretion, make other advances which shall be deemed to be advances under this Note, eventhough the stated principal amount of this Note may be exceeded as a resultthereof.  **Posting of Payments.**  All payments received during normalbanking hours after 2:00 p.m.local time at the office of Bank first shown above shall be deemed received atthe opening of the next banking day. **Fees and Taxes.**  Borrower shallpromptly pay all documentary, intangible recordation and/or similar taxes onthis transaction whether assessed at closing or arising from time to time.

 

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**WAIVER OFJURY TRIAL.**  TO THEEXTENT PERMITTED BY APPLICABLE LAW,**BORROWER**BY EXECUTION HEREOFAND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVEANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASEDON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE LOANDOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS**NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHERVERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO.  THIS PROVISIONIS A MATERIAL INDUCEMENT TO BANK TO ACCEPT THIS**NOTE*.*

BORROWER**ANDBANK AGREE THAT THEY SHALL NOT HAVE A REMEDY OF PUNITIVE OR EXEMPLARY DAMAGESAGAINST THE OTHER IN ANY DISPUTE AND HEREBY WAIVE ANY RIGHT OR CLAIM TOPUNITIVE OR EXEMPLARY DAMAGES THEY HAVE NOW OR WHICH MAY ARISE IN THE FUTURE INCONNECTION WITH ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION ORJUDICIALLY.

**IN WITNESS WHEREOF**, Borrower, on the day and year first abovewritten, has caused this Note to be executed under seal.

                                                

|   | Southeast PowerCorporationTaxpayerIdentification Number:  59-2262546                                                                                                                                                   |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                        |
|   | By:/s/ Stephen R. Wherry                           (SEAL)StephenR. Wherry, Treasurer |
|   |                                                                                                                                                                                                                        |
|   | TheGoldfield CorporationTaxpayerIdentification Number:  88-0031580                                                                                                                                                     |
|   |                                                                                                                                                                                                                        |
|   | By:/s/ Stephen R. Wherry                            (SEAL)                      |
|   | StephenR. Wherry, Treasurer                                                                                                                                                                                                 |

 

 

 

 

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**SECURITY AGREEMENT**

January 30, 2004

Southeast Power Corporation100 Rialto PlaceSuite 500Melbourne, Florida  32901-3082(Individually and collectively "Debtor")

Wachovia Bank, NationalAssociation214 North Hogan Street -FL0070Jacksonville, Florida  32202(Hereinafter referred to as "Bank")

For value received and to secure payment and performance ofthe Promissory Note executed by Debtor (also referred to herein as "Borrower")dated January 30, 2004, in the original principal amount of $2,600,000.00,payable to Bank, and any extensions, renewals, modifications or novationsthereof (the "Note"), this Security Agreement and the other Loan Documents, andany other obligations of Debtor to Bank however created, arising or evidenced,whether direct or indirect, absolute or contingent, now existing or hereafterarising or acquired, and whether or not evidenced by a Loan Document, includingswap agreements (as defined in 11 U.S.C. §101), future advances, and all costsand expenses incurred by Bank to obtain, preserve, perfect and enforce thesecurity interest granted herein and to maintain, preserve and collect theproperty subject to the security interest (collectively,"Obligations"), Debtor hereby grants to Bank a continuing securityinterest in and lien upon the following described equipment purchased with theproceeds of this loan, and any replacements, accessions, or substitutionsthereof and all cash and non‐cash proceeds thereof (collectively,"Collateral"):

Bucket trucks and other equipment used in the constructionof transmission towers and lines for electrical utilities.

Debtor hereby represents and agrees that:

**OWNERSHIP.**  Debtor owns the Collateral or Debtor willpurchase and acquire rights in the Collateral within ten days of the dateadvances are made under the Loan Documents.  If Collateral is being acquiredwith the proceeds of an advance under the Loan Documents, Debtor authorizesBank to disburse proceeds directly to the seller of the Collateral.  TheCollateral is free and clear of all liens, security interests, and claimsexcept those previously reported in writing to and approved by Bank, and Debtorwill keep the Collateral free and clear from all liens, security interests andclaims, other than those granted to or approved by Bank.

**NAME AND OFFICES; JURISDICTION OF ORGANIZATION.**  Thename and address of Debtor appearing at the beginning of this Agreement areDebtor's exact legal name and the address of its chief executive office.  Therehas been no change in the name of Debtor, or the name under which Debtorconducts business, within the five years preceding the date hereof except aspreviously reported in writing to Bank.  Debtor has not moved its chiefexecutive office within the five years preceding the date hereof except aspreviously reported in writing to Bank. Southeast Power Corporation isorganized under the laws of the State of Florida and has not changed thejurisdiction of its organization within the five years preceding the datehereof except as previously reported in writing to Bank.

**TITLE/TAXES.**  Debtor has good and marketable title toCollateral and will warrant and defend same against all claims.  Debtor willnot transfer, sell, or lease Collateral (except as permitted herein).  Debtoragrees to pay promptly all taxes and assessments upon or for the use ofCollateral and on this Security Agreement.  At its option, Bank may dischargetaxes, liens, security interests or other encumbrances at any time levied orplaced on Collateral.  Debtor agrees to reimburse Bank, on demand, for any suchpayment made by Bank.  Any amounts so paid shall be added to the Obligations.

 

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**WAIVERS.**  Debtor agrees not to assert against Bank asa defense (legal or equitable), as a set-off, as a counterclaim, or otherwise,any claims Debtor may have against any seller or lessor that provided personalproperty or services relating to any part of the Collateral or against anyother party liable to Bank for all or any part of the Obligations.  Debtorwaives all exemptions and homestead rights with regard to the Collateral. Debtor waives any and all rights to any bond or security which might berequired by applicable law prior to the exercise of any of Bank's remedies againstany Collateral.  All rights of Bank and security interests hereunder, and allobligations of Debtor hereunder, shall be absolute and unconditional, notdischarged or impaired irrespective of (and regardless of whether Debtorreceives any notice of):  (i) any lack of validity or enforceability of anyLoan Document; (ii) any change in the time, manner or place of payment orperformance, or in any term, of all or any of the Obligations or the LoanDocuments or any other amendment or waiver of or any consent to any departurefrom any Loan Document; or (iii) any exchange, insufficiency, unenforceability,enforcement, release, impairment or non‐perfection of any collateral, orany release of or modifications to or insufficiency, unenforceability orenforcement of the obligations of any guarantor or other obligor.  To theextent permitted by law, Debtor hereby waives any rights under any valuation,stay, appraisement, extension or redemption laws now existing or which mayhereafter exist and which, but for this provision, might be applicable to anysale or disposition of the Collateral by Bank; and any other circumstance whichmight otherwise constitute a defense available to, or a discharge of any partywith respect to the Obligations.

**NOTIFICATIONS;** Debtor will notify Bank in writing atleast 30 days prior to any change in:  (i) Debtor's chief place of business;(ii) Debtor's name or identity; (iii) Debtor's corporate/organizationalstructure; or (iv) the jurisdiction in which Debtor is organized.  In addition,Debtor shall promptly notify Bank of any claims or alleged claims of any otherperson or entity to the Collateral or the institution of any litigation,arbitration, governmental investigation or administrative proceedings againstor affecting the Collateral.  Debtor will bear the cost of preparing and filingany documents necessary to protect Bank's liens.

**COLLATERAL CONDITION AND LAWFUL USE.**  Debtorrepresents that the Collateral is in good repair and condition and that Debtorshall use reasonable care to prevent Collateral from being damaged ordepreciating, normal wear and tear excepted.  Debtor shall immediately notifyBank of any material loss or damage to Collateral.  Debtor shall not permit anyitem of Collateral to become a fixture to real estate or an accession to otherpersonal property unless such property is also Collateral hereunder.  Debtorrepresents it is in compliance in all respects with all laws, rules andregulations applicable to the Collateral and its properties, operations, business,and finances.

**RISK OF LOSS AND INSURANCE.**  Debtor shall bear allrisk of loss with respect to the Collateral.  The injury to or loss ofCollateral, either partial or total, shall not release Debtor from payment orother performance hereof.  Debtor agrees to obtain and keep in force insurancecovering the Collateral naming Bank as loss payee.  Such insurance shall coversuch risks as Bank may require and shall be in form and amounts and issued bysuch companies as are satisfactory to Bank.  All such policies shall provide toBank a minimum of 30 days written notice of cancellation.  Debtor shall furnishto Bank such policies, or other evidence of such policies satisfactory toBank.  If Debtor fails to obtain or maintain in force such insurance or fails tofurnish such evidence*,*Bank isauthorized, but not obligated, to purchase any or all insurance or "SingleInterest Insurance" protecting such interest as Bank deems appropriateagainst such risks and for such coverage and for such amounts, including eitherthe loan amount or value of the Collateral, all at its discretion, and atDebtor's expense.  In such event, Debtor agrees to reimburse Bank for the costof such insurance and Bank may add such cost to the Obligations.  Debtor shallbear the risk of loss to the extent of any deficiency in the effectiveinsurance coverage with respect to loss or damage to any of the Collateral. Debtor hereby assigns to Bank the proceeds of all such insurance and directsany insurer to make payments directly to Bank.  Debtor hereby appoints Bank itsattorney‐in‐fact, which appointment shall be irrevocable andcoupled with an interest for so long as Obligations are unpaid, to file proofof loss and/or any other forms required to collect from any insurer any amountdue from any damage or destruction of Collateral, to agree to and bind Debtoras to the amount of said recovery, to designate payee(s) of such recovery, togrant releases to insurer, to grant subrogation rights to any insurer, and toendorse any settlement check or draft.  Debtor agrees not to exercise any ofthe foregoing powers granted to Bank without Bank's prior written consent.

 

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**FINANCING STATEMENTS, POWER OF ATTORNEY.**  Nofinancing statement (other than any filed or approved by Bank) covering anyCollateral is on file in any public filing office.  On request of Bank, Debtorwill execute one or more financing statements in form satisfactory to Bank andwill pay all costs and expenses of filing the same or of filing this SecurityAgreement in all public filing offices, where filing is deemed by Bank to bedesirable.  Bank is authorized to file financing statements relating toCollateral without Debtor's signature where authorized by law.  Debtor furtheragrees to cooperate with Bank (such cooperation to include, without limitation,the execution of applicable forms) to assure that where a security interest inany portion of the Collateral is covered by a Certificate of Title, thesecurity interest created hereby is perfected by the notation thereof on theCertificate of Title or as otherwise provided by applicable law.  Withoutlimiting the generality of the preceding sentence, Debtor agrees to depositwith Bank any Certificate of Title issued with respect to any of the Collateralwith notation thereon of the security interest hereunder, which notification byproper public officer Debtor will promptly obtain.  Debtor hereby constitutesand appoints Bank the true and lawful attorney of Debtor with full power ofsubstitution to take any and all appropriate action and to execute any and alldocuments or instruments that may be necessary or desirable to accomplish thepurpose and carry out the terms of this Security Agreement.  The foregoingpower of attorney is coupled with an interest and shall be irrevocable untilall of the Obligations have been paid in full.  Neither Bank nor anyone actingon its behalf shall be liable for acts, omissions, errors in judgment, ormistakes in fact in such capacity as attorney-in-fact.  Debtor ratifies allacts of Bank as attorney-in-fact.  Debtor agrees to take such other actions, atDebtor's expense, as might be requested for the perfection, continuation andassignment, in whole or in part, of the security interests granted herein andto assure Bank's intended priority position.  If certificates, passbooks, orother documentation or evidence is/are issued or outstanding as to any of theCollateral, Debtor will cause the security interests of Bank to be properlyprotected, including perfection by notation thereon or delivery thereof to Bank.

**COLLATERAL DUTIES.**  Bank shall have no custodial orministerial duties to perform with respect to Collateral pledged except as setforth herein; and by way of explanation and not by way of limitation, Bankshall incur no liability for any of the following:  (i) loss or depreciation ofCollateral (unless caused by its willful misconduct or gross negligence), (ii)failure to present any paper for payment or protest, to protest or give noticeof nonpayment, or any other notice with respect to any paper or Collateral.

**TRANSFER OF COLLATERAL.**  Bank may assign its rightsin Collateral or any part thereof to any assignee who shall thereupon becomevested with all the powers and rights herein given to Bank with respect to theproperty so transferred and delivered, and Bank shall thereafter be foreverrelieved and fully discharged from any liability with respect to such propertyso transferred, but with respect to any property not so transferred, Bank shallretain all rights and powers hereby given.

**INSPECTION, BOOKS AND RECORDS.**  Debtor will at alltimes keep accurate and complete records covering each item of Collateral,including the proceeds therefrom.  Bank, or any of its agents, shall have theright, at intervals to be determined by Bank and without hindrance or delay, atDebtor's expense, to inspect, audit, and examine the Collateral and to makecopies of and extracts from the books, records, journals, orders, receipts,correspondence and other data relating to Collateral, Debtor's business or anyother transaction between the parties hereto.  Debtor will at its expensefurnish Bank copies thereof upon request.

**ATTORNEYS' FEES AND OTHER COSTS OF COLLECTION.** Debtor shall pay all of Bank's reasonable expenses incurred in enforcing thisSecurity Agreement and in preserving and liquidating Collateral, including butnot limited to, reasonable arbitration, paralegals', attorneys' and experts'fees and expenses, whether incurred with or without the commencement of a suit,trial, arbitration, or administrative proceeding, or in any appellate orbankruptcy proceeding.

**DEFAULT.**  If any of the following occurs, a default("Default") under this Security Agreement shall exist:  **LoanDocument Default.**  A default under any Loan Document.  **Collateral Lossor Destruction.**  Any loss, theft, substantial damage, or destruction ofCollateral not fully covered by insurance, or as to which insurance proceedsare not remitted to Bank within 30 days of the loss.  **Collateral Sale,Lease or Encumbrance.**  Any sale, lease, or encumbrance of any Collateralnot specifically permitted herein without prior written consent of Bank.  **Levy,Seizure or Attachment.**  The making of any levy, seizure, or attachment onor of Collateral which is not removed within 10 days.  **UnauthorizedTermination.**  Any attempt to terminate, revoke, rescind, modify, or violatethe terms of this Security Agreement without the prior written consent of Bank.

 

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**REMEDIES ON DEFAULT (INCLUDING POWER OF****SALE).** If a Default occurs, all of the Obligations shall be immediately due andpayable, without notice, other than Obligations under any swap agreements (asdefined in 11 U.S.C. § 101) with Bank, which shall be governed by the defaultand termination provisions of said swap agreements, and Bank shall have all therights and remedies of a secured party under the Uniform Commercial Code. Without limitation thereto, Bank shall have the following rights and remedies: (i) to take immediate possession of Collateral, without notice or resort tolegal process, and for such purpose, to enter upon any premises on whichCollateral or any part thereof may be situated and to remove the sametherefrom, or, at its option, to render Collateral unusable or dispose of saidCollateral on Debtor's premises; (ii) to require Debtor to assemble theCollateral and make it available to Bank at a place to be designated by Bank;(iii) to exercise its right of set‐off or bank lien as to any monies ofDebtor deposited in accounts of any nature maintained by Debtor with Bank oraffiliates of Bank, without advance notice, regardless of whether such accountsare general or special; (iv) to dispose of Collateral, as a unit or in parcels,separately or with any real property interests also securing the Obligations,in any county or place to be selected by Bank, at either private or public sale(at which public sale Bank may be the purchaser) with or without having theCollateral physically present at said sale*.*

Any notice of sale, disposition or other action by Bankrequired by law and sent to Debtor at Debtor's address shown above, or at suchother address of Debtor as may from time to time be shown on the records ofBank, at least 5 days prior to such action, shall constitute reasonable noticeto Debtor.  Notice shall be deemed given or sent when mailed postage prepaid toDebtor's address as provided herein.  Bank shall be entitled to apply theproceeds of any sale or other disposition of the Collateral, and the paymentsreceived by Bank with respect to any of the Collateral, to Obligations in suchorder and manner as Bank may determine.  Collateral that is subject to rapiddeclines in value and is customarily sold in recognized markets may be disposedof by Bank in a recognized market for such collateral without providing noticeof sale.  Debtor waives any and all requirements that the Bank sell or disposeof all or any part of the Collateral at any particular time, regardless ofwhether Debtor has requested such sale or disposition.

**REMEDIES ARE CUMULATIVE.**  No failure on the part ofBank to exercise, and no delay in exercising, any right, power or remedyhereunder shall operate as a waiver thereof, nor shall any single or partialexercise by Bank or any right, power or remedy hereunder preclude any other orfurther exercise thereof or the exercise of any right, power or remedy.  Theremedies herein provided are cumulative and are not exclusive of any remediesprovided by law, in equity, or in other Loan Documents.

**MISCELLANEOUS.**  (i) **Amendments and Waivers.** No waiver, amendment or modification of any provision of this SecurityAgreement shall be valid unless in writing and signed by Debtor and an officerof Bank.  No waiver by Bank of any Default shall operate as a waiver of anyother Default or of the same Default on a future occasion.  (ii) **Assignment.** All rights of Bank hereunder are freely assignable, in whole or in part, andshall inure to the benefit of and be enforceable by Bank, its successors,assigns and affiliates.  Debtor shall not assign its rights and interesthereunder without the prior written consent of Bank, and any attempt by Debtorto assign without Bank's prior written consent is null and void.  Anyassignment shall not release Debtor from the Obligations.  This SecurityAgreement shall be binding upon Debtor, and the heirs, personal representatives,successors, and assigns of Debtor.  (iii) **Applicable Law; Conflict BetweenDocuments.**  This Security Agreement shall be governed by and construedunder the law of the jurisdiction named in the address of the Bank first shownabove (the "Jurisdiction") without regard to that Jurisdiction's conflict oflaws principles, except to the extent that the UCC requires the application ofthe law of a different jurisdiction.  If any terms of this Security Agreementconflict with the terms of any commitment letter or loan proposal, the terms ofthis Security Agreement shall control.  (iv) **Jurisdiction.**  Debtorirrevocably agrees to non‐exclusive personal jurisdiction in theJurisdiction in which the office of Bank as stated above is located.  (v) **Severability.** If any provision of this Security Agreement shall be prohibited by or invalidunder applicable law, such provision shall be ineffective but only to theextent of such prohibition or

 

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invalidity, without invalidating the remainder ofsuch provision or the remaining provisions of this Security Agreement.  (vi) **Notices.** Any notices to Debtor shall be sufficiently given, if in writing and mailed ordelivered to the address of Debtor shown above or such other address asprovided hereunder; and to Bank, if in writing and mailed or delivered toBank's office address shown above or such other address as Bank may specify inwriting from time to time.  In the event that Debtor changes Debtor's mailingaddress at any time prior to the date the Obligations are paid in full, Debtoragrees to promptly give written notice of said change of address by registeredor certified mail, return receipt requested, all charges prepaid.  (vii) **Captions.** The captions contained herein are inserted for convenience only and shall not affectthe meaning or interpretation of this Security Agreement or any provisionhereof.  The use of the plural shall also mean the singular, and vice versa. (viii) **Joint and Several Liability.**  If more than one party has signedthis Security Agreement, such parties are jointly and severally obligatedhereunder.  (ix) **Binding Contract.**  Debtor by execution and Bank byacceptance of this Security Agreement, agree that each party is bound by allterms and provisions of this Security Agreement.

**DEFINITIONS.**  **Loan Documents.**  The term"Loan Documents" refers to all documents, including this Agreement,whether now or hereafter existing, executed in connection with or related tothe Obligations, and may include, without limitation and whether executed byDebtor or others, commitment letters that survive closing, loan agreements,promissory notes, guaranty agreements, deposit or other similar agreements,other security agreements, letters of credit and applications for letters ofcredit, security instruments, financing statements, mortgage instruments, anyrenewals or modifications, whenever any of the foregoing are executed, but doesnot include swap agreements (as defined in 11 U.S.C. § 101).  **UCC.** "UCC" means the Uniform Commercial Code as presently and hereafter enacted inthe Jurisdiction.  **Terms defined in the UCC.**  Any term used in thisAgreement and in any financing statement filed in connection herewith which isdefined in the UCC and not otherwise defined in this Agreement or any otherLoan Document has the meaning given to the term in the UCC.

**IN WITNESS WHEREOF**, Debtor, on the day and year firstwritten above, has caused this Security Agreement to be executed under seal.

                                                SoutheastPower Corporation                                                TaxpayerIdentification Number:  59-2262546

                                                By:/s/ Stephen R.Wherry                  (SEAL)                                                      StephenR. Wherry, Treasurer

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