LOAN AGREEMENT
LENDER; Jobs for Fall River, Inc.
a Massachusetts non-profit corporation One
Government Center Fall River, MA 02722
(hereinafter sometimes called Jobs)
BORROWER: The Genlyte Group Incorporated
a Delaware Corporation
Fall River, MA 02720
R E C I T A L S
1. In order to assist The Genlyte Group Incorporated in providing
employment opportunities in the local labor market, Jobs for Fall River, Inc.
will lend Two Million ($2,000,000) Dollars as interim financing for its working
capital for the acceleration of Lightolier, Inc.
2. The Federal Department of Housing and Urban Development ("DHUD") has
made available to the City certain Community Development Block Grant funds in
the sum of Two Million ($2,000,000) Dollars (the "interim financing"), which
funds will be loaned by the City to Jobs under the terms of a Loan Agreement
(the "CDBG Loan Agreement") of even date herewith for the purpose of funding the
Loan made by Jobs to Borrower hereunder.
3. Jobs desires to lend to Borrower and Borrower desires to borrow from
Jobs the sum of Two Million ($2,000,000) Dollars (the "Loan") in order to
finance its working capital.
4. The interim financing consists of Community Development Block Grant
funds which have been allocated to the City, but which have not yet been drawn
down. The interim financing has been made available to the City by DHUD on the
conditions that the interim financing, notwithstanding the loan of same to Jobs,
shall, as necessary, be at all times immediately available for such purposes as
may from time to time be determined by the City and DHUD.
IT IS THEREFORE AGREED:
1. Loan by Lender. Jobs agrees, subject to the terms and conditions of this
Agreement and in consideration of the representations, covenants and obligations
of borrower contained in this Agreement, to loan to Borrower the sum of Two
Million ($2,000,000) Dollars to finance its working capital. In order to acquire
funds for the Loan, Jobs will execute the CDBG Loan Agreement simultaneously
with the execution of this Agreement.
2. Loan Repayment. In consideration of the undertakings of Jobs and of the
Loan made hereunder, Borrower hereby agrees to pay to Jobs or its order the sum
of Two Million ($2,000,000) Dollars, at the time and in the manner set forth in
the Promissory Note (the "Note") of even date herewith, in the form attached
hereto as Exhibit "1", made and executed by Borrower to the order of Jobs.
3. Source of Payment. Payment of principal hereunder and under the Note
shall be backed by an unconditional, irrevocable letters of credit (the "Letters
of Credit") in the amounts of Two Million ($2,000,000) Dollars in form and
substance satisfactory to Jobs and the City of its representative, from an
issuer satisfactory to the City or its representative, addressed in each case to
Jobs as beneficiary, with provisions permitting the transferability of the
beneficiary's interest thereunder to the City. Payment under such Letters of
Credit shall not be conditioned upon any action or omission to take such action
on the part of Jobs or the city, whether under this Agreement, under the terms
of any document executed or delivered hereunder or otherwise. Neither the
acceptance of, the transfer of, or the receipt of monies under the Letters of
Credit shall in any manner relieve Borrower of any obligation hereunder or under
the terms of any document executed or given in connection herewith, except to
the extent payment is actually received under the Letters of Credit.
4. Conditions to Lender Making Loan. The obligation of the Lender to make
any advance under this agreement shall at all times be conditioned for the sole
benefit of Jobs upon:
a. The execution of this Agreement by Borrower and Jobs;
b. Receipt by Jobs of the Letters of Credit;
c. The receipt by Jobs of such documents, certifications and opinions as
may be reasonably satisfactory to Jobs, evidencing that this Agreement, the
Note, the Letter of Credit and all other documents given or executed in
connection herewith are duly and validly executed by and on behalf of and
constitute the valid and enforceable obligations of the obligors thereunder
pursuant to the respective terms of each, and that the execution and delivery of
this Agreement, the Note, the Letters of Credit and all other documents executed
or given hereunder and the performance by Borrower hereunder and the respective
obligors thereunder will not breach or violate any articles of incorporation,
any by-law of or default under any agreement or instrument, to which the
Borrower or any other obligor may be party or under the terms of which Borrower
or any other obligor may be bound.
d. The availability to Jobs of Dollars in proceeds from the CDBG Loan
and the satisfaction of allconditions thereunder to same under the CDBG Loan
Agreement.
5. Consent to Assignment. Borrower hereby acknowledges that, concurrently
with the execution of this Agreement, Jobs is assigning its rights under this
Agreement, is negotiating the Note and is transferring certain of Jobs' rights
under the Letter of Credit, together with all revenues, receipts, funds and
proceeds of or with respect to the CDBG Loan Agreement. Borrower hereby consents
to such assignment, negotiation and transfer. Borrower hereby waives any
objections or defenses it may have, if any, to the enforcement of its
obligations under this Agreement or under any document executed or given
hereunder or in connection herewith or to the assignment, negotiation and
transfer by Jobs to the City of Jobs' rights as above described and further
agrees that Jobs, the City or either of them may enforce the provisions of this
Agreement and all documents given or executed hereunder or pursuant hereto. No
undertaking by Jobs, without the written consent of the City, shall release the
Borrower from any obligation under this Agreement or any document executed
hereunder or pursuant hereto, including any security therefor, owing to or
assigned, transferred or negotiated to the City.
6. Obligations of Borrower Hereunder Unconditional. The obligations of the
Borrower to make payments required in Paragraph 2 hereof shall be absolute and
unconditional and, until such time as the principal of the Note shall have been
fully paid, the Borrower:
a. Will not suspend any payment for which provision is made in this
Agreement or in any other document executed here- under in connection herewith.
b. Will not terminate or suspend this Agreement or the payment of any
obligations provided hereunder or under any other document executed hereunder or
in connection herewith for any cause, including, without limiting the generality
of the foregoing, any acts or circumstances that may constitute failure of
consideration, commercial frustration of purpose, any failure of Jobs or any
assignee thereof to perform and observe any agreement, whether express or
implied, or any duty, liability or
obligation arising out of or connected with this Agreement or any document
executed hereunder or in connection herewith (except with respect to the
foregoing, those arising from a failure by Jobs to make advances pursuant to
Section 1 hereof), any breach by the City of any obligation owing to Borrower or
the exercise by the City of any right or prerogative granted to or served by the
City under the terms of any agreement between the city and the borrower or under
any conveyance from the City to the Borrower. No defense, setoff, recoupment or
counterclaim which may be available to or asserted by Jobs against the City
shall be available to or asserted by Borrower against the City or Jobs. Insofar
as Borrower shall be concerned, all assignments, negotiations and transfers to
the City as described above shall be and are absolute. No obtained consent or
approval from the City or DHUD shall relieve Borrower from or constitute any
defense or condition to the obligations of Borrower with respect to payment
hereunder or under the terms of any document given hereunder or in connection
herewith.
7. Default and Remedies.
a. Default. The failure of Borrower to pay or perform any obligation
hereunder or under the terms of any other document executed in connection
herewith or the falsity of any represen- tation or breach of any warranty of
covenant made by the borrower, hereunder or under the terms of any other
document executed in connection herewith, shall constitute a default hereunder.
b. Remedies. Upon the occurrence of a default by Borrower, Jobs may take
any one or more of the following remedial steps:
(1) Take whatever action at law or in equity (other than an action for
specific performance of non-monetary obligations) as may appear necessary or
desirable, in the sole discretion of Jobs, to collect the amounts then due and
thereafter to become due or to enforce performance and observance of any
obligation, agreement or covenant of the Borrower under this Agreement or under
any other document executed in connection herewith.
(2) To take any and all action and do any and all things which are
allowed, permitted or provided by law to enforce or realize upon the Letters of
Credit (it being understood, however, that neither demand by Jobs nor default by
Borrower shall constitute conditions to the rights of Jobs or its transferee to
demand, receive or obtain payment under the Letters of Credit.
(3) Institute any action or proceeding at law or in equity for the
collection of the sums so due and unpaid and to prosecute any such action or
proceeding to judgment or final decree and to enforce any such judgment or final
decree and collect, in a manner provided by law, the monies adjudged or decreed
to be payable.
(4) If there shall be pending, at any time, proceedings pertaining to
the bankruptcy or reorganization of the Borrower under the federal bankruptcy
laws or any other applicable law,or in the case a receiver, trustee or custodian
shall have been appointed for the property of the Borrower and in the case of
any other similar judicial proceedings relative to the borrower or to its
creditors, Jobs shall be entitled and empowered by the intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount owing and unpaid pursuant to this Agreement and evidenced by the Note
and, in case of any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of jobs or any assignee of Jobs allowed in such judicial proceedings relative to
the Borrower and to collect and receive any monies or other property payable or
deliverable on any such claims, and any receiver, custodian, assignee or trustee
in bankruptcy or reorganization is hereby authorized to make such payments to
Jobs' assignee hereof and to pay the expenses incurred by it up to the date of
such distribution.
c. No Remedy Exclusive. No remedy herein conferred upon or reserved to
Jobs is intended to be exclusive of any other available remedy or remedies, but
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement or now existing at law or in equity or
by statute and may be exercised in such number, at such times and in such order
as Jobs may determine in its discretion. No delay or omission to exercise any
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient by Jobs. In order to entitle Jobs to exercise any right or remedy
reserved to it under this Agreement, it shall not be necessary to give any
notice, other than notices which may be herein expressly required. Such rights
and remedies as are given to jobs hereunder shall also extend to any assignee of
Jobs and such assignee shall be deemed a third party beneficiary of all
covenants and agreements herein contained.
8. Agreement to Pay Attorneys Fees and Expenses. In the event jobs utilizes
the services of an attorney or attorneys in attempts to collect any sums due
under this Agreement or any other document executed or given in connection
herewith or hereunder or if jobs becomes a party plaintiff or defendant or
otherwise appears in any legal proceeding relating to this Agreement or any of
the documents executed hereunder or in connection herewith, the Borrower shall
pay to jobs all costs and expenses incurred, including reasonable attorneys'
fees and further including those costs, expenses and attorneys' fees incurred
after the filing by or against the Borrower of any proceedings under any Federal
or State laws relating to bankruptcy or insolvency and whether incurred in
connection with the involvement of jobs as a creditor in such proceedings or
otherwise.,
9. No additional Waiver Implied by One Waiver. In the event any undertaking
contained in this Agreement or any document executed hereunder or in connection
herewith should be breached by Borrower and thereafter waived by Jobs (it being
understood that no waiver on the part of jobs shall be effective without the
written consent of the City as assignee of jobs) such waiver shall be limited to
the particular breach so waived and shall not be deemed to waive any other
breach hereunder.
10. No Warranty of Condition or Suitability. Neither Jobs nor the City make
any warranty, either express or implied, as to the conditions of the interim
financing for working capital for execution of the contract financed by the
Loan, or that said working capital will be suitable for the purposes or needs of
the borrower or that the loan will be sufficient to meet the working capital
needs of Borrower in connection with the execution of the contract.
11. Notices. All notices, certificates or other communications hereunder
shall be delivered either personally or by registered or certified mail, postage
prepaid, return receipt requested and addressed to the parties at the addresses
set forth in this Agreement. If given by mail such notice shall be effective as
of the date so deposited in the United States Mail. Copies of all such notices
shall be delivered or mailed to the City of Fall River, Massachusetts.
12. Costs and Expenses of Lender. Borrower shall pay or reimburse to jobs,
upon demand by jobs, all costs incurred by Jobs in connection with this
Agreement, and the Loan, including without limitation all recording and filing
fees (if any) and attorneys' fees.
13. Execution of Documents. The parties hereto shall, exercising reasonable
diligence, execute any and all documents and do all things as may be necessary
or advisable under the circumstances to given practical effect to this Agreement
and to evidence, perfect and protect all rights and interests granted by the
parties hereunder.
14. Conflict of Interest. No Individual Liability. No member, official or
employee of Jobs shall have any personal interest, direct or indirect, in this
Agreement, nor shall any such member, official or employee participate in any
decision relating to this Agreement which affects his pecuniary interest or
interests of any corporation, partnership or association in which he is,
directly or indirectly, interested. No member, official or employee of the City
or of Jobs shall be personally liable in the event of any default or breach of
this Agreement by the City or Jobs.
15. Binding Effect. This Loan Agreement shall inure to the benefit of and
shall be binding upon Jobs and the Borrower and their respective successors and
assigns, subject, however, to the limitations contained in this Agreement.
16. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition of unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction. To the extent permitted by applicable law, the Borrower
hereby waives any provisions of law which renders any provisions hereof
prohibited or unenforceable in any respect.
17. Amendments, Changes and Modifications. Except as otherwise provided in
this Agreement, this Agreement may not be effectively amended, changed,
modified, altered or terminated without the prior written consent of the City.
No term or provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which the enforcement of the change, waiver, discharge or termination is
sought.
18. Execution of Counterparts. this Agreement may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
19. Captions and Table of Contents; Law Governing. The Captions and Table
of Contents in this Agreement are for convenience and reference only and shall
not define, limit or modify any of the terms or provisions hereof. This
agreement shall in all respects be governed by, and construed in accordance
with, the laws of the Commonwealth of Massachusetts, including all matters of
construction, validity and performance.
The interest of Jobs in, to and under the foregoing Loan Agreement has been
assigned this date to the City of Fall River, a municipal corporation.
DATED:
LENDER:
JOBS FOR FALL RIVER, INC.
By: ______________________
Michael F. Neves
BORROWER:
THE GENLYTE GROUP INCORPORATED
By: ______________________
By: ______________________