10-1 BBT RenewalPromNote


Exhibit 10-1


	
								
	Borrower:
	THE GOLDFIELD CORPORATION, a Delaware corporation

	Account Number:
	9660933082
	BB&T
	Note Number:
	00002

	Address:
	1684 W. Hibiscus Blvd.
	     
	Melbourne, Florida

	 
	Melbourne, FL 32901
	RENEWAL
PROMISSORY NOTE
	Date:
	January 15, 2013






THE UNDERSIGNED BORROWER REPRESENTS THAT THE LOAN EVIDENCED HEREBY IS BEING OBTAINED FOR BUSINESS/COMMERCIAL OR AGRICULTURAL PURPOSES AND NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES.  For value received, the undersigned, jointly and severally, if more than one, promises to pay to BRANCH BANKING AND TRUST COMPANY, a North Carolina banking corporation  (the "Bank"), or order, at any of Bank's offices in the above referenced city  (or such other place or places that may be hereafter designated by Bank), the sum of Five Million Dollars ($5,000,000.00), in immediately available coin or currency of the United States of America.
Interest shall accrue from the date hereof on the unpaid balance outstanding from time to time at the:


x Adjusted LIBOR rate, as defined in the attached Addendum to Renewal Promissory Note.


Principal and interest are payable as follows:


x Principal (plus any accrued interest not otherwise scheduled herein) is due in full at maturity on January 16, 2014.
x Accrued interest is payable monthly commencing on February 16, 2013 and continuing on the same day of each calendar period thereafter, with one final payment of all remaining interest due on January 16, 2014.


The undersigned shall pay to Bank a late fee in the amount of five percent (5%) of any installment past due for ten (10) or more days.  When any installment payment is past due for ten (10) or more days, subsequent payments shall first be applied to the past due balance.   In addition, the undersigned shall pay to Bank a returned payment fee if the undersigned or any other obligor hereon makes any payment at any time by check or other instrument, or by any electronic means, which is returned to Bank because of nonpayment due to nonsufficient funds.  
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.  In the event periodic accruals of interest shall exceed any periodic fixed payment amount described above, the fixed payment amount shall be immediately increased, or additional supplemental interest payments required on the same periodic basis as specified above (increased fixed payments or supplemental payments to be determined in the Bank's sole discretion), in such amounts and at such times as shall be necessary to pay all accruals of interest for the period and all accruals of unpaid interest from previous periods. Such adjustments to the fixed payment amount or supplemental payments shall remain in effect for so long as any interest accruals shall exceed the original fixed payment amount and shall be further adjusted upward or downward to reflect changes in any variable interest rate; provided that unless elected otherwise above, the fixed payment amount shall not be reduced below the original fixed payment amount.  However, Bank shall have the right, in its sole discretion, to lower the fixed payment amount below the original payment amount. 
This Note is given by the undersigned in connection with the following agreements (if any) between the undersigned and the Bank: 
x This loan is a renewal of Account#/Note #9660933082 / 00002.


x Florida Documentary Stamp Tax is not required


Security Agreement(s) conveying a security interest to Bank:


x    dated February 22, 2011 given by Southeast Power Corporation, as modified by the Modification of Security Agreement dated April 17, 2012.
x    dated February 22, 2011 given by Southeast Power Corporation as modified by the Modification of Security Agreement dated April 17, 2012. 
x Loan Agreement of even date herewith, executed by  x Borrower and x Guarantor(s).
The above-described documents executed in connection with this Note are hereinafter collectively referred to as the “Agreements”. As additional security for the indebtedness and obligations evidenced by this Note, the undersigned hereby grants to Bank a security interest in all existing and hereafter deposit accounts maintained with Bank.
No delay or omission on the part of the holder in exercising any right hereunder shall operate as a waiver of such right or of any other right of such holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or waiver of the same or of any other right on any future occasion.  Every one of the undersigned and every endorser or guarantor of this note regardless of the time, order or place of signing waives presentment, demand, protest and notices of every kind and assents to any one or more extensions or postponements of the time of payment or any other indulgences,  







to any substitutions, exchanges or releases of collateral if at any time there be available to the holder collateral for this Note, and to the additions or releases of any other parties or persons primarily or secondarily liable.
The failure to pay any part of the principal or interest when due on this Note or to fully perform any covenant, obligation or warranty on this or on any other liability to the Bank by any one or more of the undersigned, by any affiliate of the undersigned (as defined in 11 USC Section (101)(2)), or by any guarantor or surety of this Note (said affiliate, guarantor, and surety are herein called “Obligor”); or if any financial statement or other representation made to the Bank by any of the undersigned or any Obligor shall be found to be materially incorrect or incomplete; or if any of the undersigned shall fail to furnish information and documentation to the Bank sufficient to verify the identity of the undersigned as required under the USA Patriot Act; or in the event of a default under any of the Agreements or any other obligation of any of the undersigned or any Obligor; or should the Bank demand that the undersigned secure or provide additional security for its obligations under this Note and security deemed adequate and sufficient by the Bank is not given when demanded; or in the event one or more of the undersigned or any Obligor shall die, terminate its existence, allow the appointment of a receiver for any part of its property, make an assignment for the benefit of creditors, or should a proceeding under bankruptcy or insolvency laws be initiated by or against any of the undersigned or any Obligor; or should the Bank otherwise deem itself, its security interests, or any collateral unsafe or insecure; or should the Bank in good faith believe that the prospect  of payment or other performance is 








    





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impaired; or if there is an attachment, execution, or other judicial seizure of all or any portion of the Borrower's or any Obligor's assets, including an action or proceeding to seize any funds on deposit with the Bank, and such seizure is not  discharged within 20 days; or if final judgment for the payment of money shall be rendered against the Borrower or any Obligor which is not  covered by insurance or debt cancellation contract and shall remain undischarged for a period of 30 days unless such judgment or execution thereon is effectively stayed; or should any guarantor terminate any guaranty agreement given in connection with this Note, then any one of the same shall be a material default hereunder and this Note and other debts due the Bank by any one or more of undersigned shall immediately become due and payable at  the option of the Bank without notice or demand of any kind, which is hereby waived.  From and after any event of default hereunder, interest shall accrue on the sum of the principal balance and accrued interest then outstanding at the variable rate equal to the Bank's Prime Rate plus 5% per annum ("Default Rate") until such principal and interest have been paid in full, provided that such rate shall not exceed at any time the highest rate of interest permitted by the laws of the State of North Carolina; and further provided that such rate shall apply after judgment. In addition, upon default, the Bank may pursue its full legal remedies at law or equity, and the balance due hereunder may be charged against any obligation of the Bank to any party including any Obligor.  Bank shall not be obligated to accept any check, money order, or other payment instrument marked "payment in full" on any disputed amount due hereunder, and Bank expressly reserves the right to reject all such payment instruments.  Borrower agrees that tender of its check or other payment instrument so marked will not satisfy or discharge its obligation under this Note, disputed or otherwise, even if such check or payment instrument is inadvertently processed by Bank unless in fact such payment is in fact sufficient to pay the amount due hereunder.
Unless otherwise required under a Loan Agreement, if applicable, and as long as any indebtedness evidenced by this Note remains outstanding or as long as Bank remains obligated to make advances, the undersigned shall furnish annually an updated financial statement in a form satisfactory to Bank, which, when delivered shall be the property of the Bank.
The term "Prime Rate," if used herein, means the rate of interest per annum announced by the Bank from time to time and adopted as its Prime Rate at its executive offices in Winston-Salem, North Carolina.  The Prime Rate is one of several rate indexes employed by the Bank when extending credit, and not necessarily the lowest rate.  Any change in the interest rate resulting from a change in the Bank's Prime Rate shall become effective as of the opening of business on the effective date of the change.  If this Note is placed with an attorney for collection, the undersigned agrees to pay, in addition to principal, interest, and late fees, if any, all costs of collection, including but not limited to reasonable attorneys' fees.  All obligations of the undersigned and of any Obligor shall bind his heirs, executors, administrators, successors, and/or assigns.  Use of the masculine pronoun herein shall include the feminine and the neuter, and also the plural.  If more than one party shall execute this Note, the term "undersigned" as used herein shall mean all the parties signing this Note and each of them, and all such parties shall be jointly and severally obligated hereunder.  Wherever possible, each provision of this Note shall be interpreted in such a manner to be effective and valid under applicable law, but if any provision of this Note shall be prohibited by or invalid under such law, such provision shall be ineffective but only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note.  All of the undersigned hereby waive all exemptions and homestead laws. The proceeds of the loan evidenced by this Note may be paid to any one or more of the undersigned.
From time to time the maturity date of this Note may be extended, or this Note may be renewed in whole or in part, or a new note of different form may be substituted for this Note, or the rate of interest may be modified, or changes may be made in consideration of loan extensions, and the holder hereof, from time to time may waive or surrender, either in whole or in part any rights, guaranties, secured interest, or liens, given for the benefit of the holder in connection with the payment and the securing the payment of this Note; but no such occurrence shall in any manner   affect, limit, modify, or otherwise impair any rights, guaranties or security of the holder not specifically waived, released, or surrendered in   writing, nor shall the undersigned makers, or any obligor, either primarily or contingently, be released by reason of the occurrence of any such event.  The holder hereof, from time to time, shall have the unlimited right to release any person who might be liable hereon, and such release shall not affect or discharge the liability of any other person who is or might be liable hereon.  No waivers and modifications shall be valid unless in writing and signed by the Bank.  The Bank may, at its option, charge any fees for the modification, renewal, extension, or amendment of any of the terms of the Note permitted by the laws of the state of Florida.  In case of a conflict between the terms of this Note and the Loan Agreement or Commitment Letter issued in connection herewith, the priority of controlling terms shall be first this Note, then the Loan Agreement, and then the Commitment Letter. This Note shall be governed by and construed in accordance with the laws of Florida.
This is a Renewal and Modification of that certain Revolving Line of Credit Promissory Note dated August 26, 2005 in the original principal amount of $1,000,000.00 subsequently modified by that certain Renewal Revolving Line of Credit Promissory Note dated March 14, 2006 in the original principal amount of $3,000,000.00, subsequently modified by the 





Renewal Revolving Line of Credit Promissory Note dated September 28, 2006 in the original principal amount of $3,000,000.00, subsequently modified by Note Modification Agreement dated December 29, 2009, subsequently modified by Note Modification Agreement dated February 22, 2011, subsequently modified by Renewal Promissory Note dated January 4, 2012, subsequently modified by that certain Renewal and Additional Advance Note in the original principal amount of $5,000,000.00 dated April 17, 2012, subsequently modified by renewals, extensions, and modifications collectively “Original Promissory Note”. Borrower(s) and Bank agree that said Original Promissory Note be modified only to the limited extent as is hereinafter set forth; that all other terms, conditions, and covenants of said Original Promissory Note remain in full force and effect, and that all other obligations and covenants of Borrower(s), except as herein modified, shall remain in full force and effect, and binding between Borrower(s) and Bank; and Debtor(s)/Mortgagor(s), if different from Borrower(s), has agreed to the terms of this modification.





	
			
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WAIVER OF TRIAL BY JURY.  UNLESS EXPRESSLY PROHIBITED BY APPLICABLE LAW, THE UNDERSIGNED HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS OR CLAIMS ARISING OUT OF THIS NOTE OR ANY LOAN DOCUMENT EXECUTED IN CONNECTION HEREWITH OR OUT OF THE CONDUCT OF THE RELATIONSHIP BETWEEN THE UNDERSIGNED AND BANK.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOAN EVIDENCED BY THIS NOTE.  FURTHER, THE UNDERSIGNED HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT SEEK TO ENFORCE THIS WAIVER OR RIGHT TO JURY TRIAL PROVISION IN THE EVENT OF LITIGATION.  NO REPRESENTATIVE OR AGENT OF BANK, NOR BANK’S COUNSEL HAS THE AUTHORITY WAIVE, CONDITION OR MODIFY THIS PROVISION.
(SIGNATURES ON FOLLOWING PAGE)




BB&T



	
			
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RENEWAL PROMISSORY NOTE SIGNATURE PAGE


	
							
	Borrower:
	THE GOLDFIELD CORPORATION, a Delaware corporation

	Account Number:
	9660933082
	Note Number:
	00002

	Note Amount:
	$5,000,000.00
	Date:
	January  15, 2013








IN WITNESS WHEREOF, the undersigned, on the day and year first written above, has caused this note to be executed under seal.




                    
	
					
	 
	If Borrower is a Corporation:

	 
	 
	 

	 
	 
	 

	WITNESS:
	 
	THE GOLDFIELD CORPORATION, a Delaware corporation

	



	 

	 
	/s/ John Sottile
	 
	By:
	/s/ Stephen R. Wherry

	 
	 
	 
	Name:
	Stephen R. Wherry

	 
	 
	 
	Title:
	Senior Vice President

	 
	 
	 
	 
	 

	 
	/s/ Mary Manger
	 
	Date:
	January 15, 2013

	 
	 
	 
	 
	 







	
			
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