EXHIBIT 10.1
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FOURTH LOAN MODIFICATION AGREEMENT
This FOURTH LOAN MODIFICATION AGREEMENT (the "Agreement"), dated as set
forth below, by and between FLEET NATIONAL BANK, successor by merger to SUMMIT
BANK (the "Bank") and FAIRMOUNT CHEMICAL COMPANY, INC. ("Borrower').
RECITALS OF FACT AND PURPOSE:
A. Pursuant to the terms of that certain Secured Credit Agreement (the
"Credit Agreement") dated June 30, 1997, Bank extended a revolving credit
facility to Borrower (the "Revolving Loan"), pursuant to which Bank agreed to
provide Borrower with financial accommodations not to exceed the maximum
aggregate principal sum of $750,000.00.
B. To evidence the Revolving Loan, Borrower executed in favor of Bank that
certain Master Advance Note (the "Revolving Note") dated June 30, 1997, pursuant
to which Borrower agreed to pay Bank the principal aggregate sum of $750,000.00,
or such lesser amounts as may have been borrowed, pursuant to the terms of the
Revolving Note.
C. Pursuant to the terms of that certain Security Agreement dated June 30,
1997 (the "Security Agreement"), Borrower pledged, assigned and transferred to
Bank, and granted to Bank a continuing first priority lien and blanket security
interest upon all of Borrower's assets, including but not limited to all of
Borrower's Equipment, Inventory, Receivables, and General intangibles, as those
terms are defined in the Security Agreement.
D. Pursuant to Amendments to the Credit Agreement dated June 29, 1998, June
30, 1999, May 10, 2000, and April 30, 2001 (the "Amendments"), a Loan
Modification Agreement dated October 24, 2001 (the "Loan Modification
Agreement"); a Second Loan Modification Agreement dated January 11, 2002 (the
"Second Loan Modification Agreement"); a Third Loan Modification dated February
20, 2002 (the "Third Loan Modification Agreement") and a letter agreement dated
November 30, 2001 (the "Letter Agreement), the terms of the Credit Agreement
were modified to, among other things, (i) decrease the maximum aggregate
principal sum of the Revolving Loan to $700,000.00; and (ii) extend the
termination date of the Revolving Loan to February 28, 2002. All references
hereinafter to the "Credit Agreement" shall be deemed to refer to the Credit
Agreement as modified by the Amendments, the Loan Modification Agreement, the
Second Loan Modification Agreement the Third Loan Modification Agreement and the
Letter Agreement.
E. Pursuant to extension and/or modification and/or renewal agreements
dated on or about April 30, 1999, June 30, 1999, May 10, 2000, April 30, 2001,
October 24, 2001, January 11, 2002 and February 20, 2002 (collectively, the
"Note Modification"), the revolving Note was modified to, among other things,
reflect the decrease in the maximum principal sum of the Revolving Loan to
$700,000. Pursuant to terms of the Note Modifications and the Letter Agreement,
the maturity of the Revolving Note was extended to February 28, 2002. All
references hereinafter to "Revolving Note" shall be deemed to refer to Revolving
Note as modified by the Note Modification and the Letter Agreement.
F. The Revolving Loan matured on February 28, 2002 and all principal,
interest and other amounts evidenced by the Revolving Note due and payable in
full to Bank.
G. As of the Date of Agreement (as defined below), the outstanding
principal balance of the Revolving Note is $700,000.00.
H. The Borrower has requested that Bank, and Bank has agreed to, extend and
modify the terms of the Revolving Loan and the related Loan Documents (as
defined below), subject to the terms and conditions set forth in this Agreement
NOW, THEREFORE, for and in consideration of the matters set forth above,
the mutual covenants contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
Bank and Borrower, said parties agree as follows.
1. DEFINITIONS
The terms set forth below shall be defined as follows:
1.1 "Date of Agreement" is as of April 30. 2002.
1.2 Borrower's address is: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
1.3 Bank's Address is: c/o ▇▇▇▇ ▇▇▇▇▇▇▇, V.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
1.4 Collateral" means all property, assets or rights that secure the
payment of the Obligations, whether now owned or existing or hereafter
created or acquired, and the cash and non-cash proceeds thereof,
including but not limited to all of Borrower's Equipment, Inventory,
Receivables, and General Intangibles.
1.5 "Loan Documents" means the Credit Agreement, the Amendments, the Loan
Modification agreement, the Second Loan Modification, the Third Loan
Modification Agreement, the Note Modifications, the Letter Agreement,
the Security Agreement this Agreement; and any other document
heretofore, now or hereafter executed by and/or among Bank and
Borrower in connection with the Obligations, together with all
modifications, extensions and/or renewals thereof
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1.6 "Obligations' means the Revolving Note indebtedness and any and all
other indebtedness, obligations and liabilities of Borrower to Bank of
every kind and description, direct or indirect, secured or unsecured.
joint or several, absolute or contingent, due or to become due,
including any overdrafts, whether for payment or performance, now
existing or hereafter arising, whether presently contemplated or not,
regardless of how same arise or by what instrument, agreement or book
account they may be evidenced, or whether evidenced by any instrument,
agreement or book account, including, but not limited to all loans
(including any loan by modification, renewal or extension), all
indebtedness, all undertakings to take or refrain from taking any
action, all indebtedness, liabilities or obligations owing from
Borrower to others which Bank may have obtained by purchase,
negotiation, discount, assignment or otherwise; and all interest
taxes, fees, charges, expenses and reasonable attorney's fees (whether
or not such attorney is a regularly salaried employee of Bank, any
parent corporation or any subsidiary or affiliate thereof, whether now
existing or hereafter created), chargeable to Borrower or incurred by
Bank under this Agreement, or any other document or instrument
delivered in connection herewith.
1.7 "Extension Period" means the time period commencing on the Date of
Agreement and ending on the earlier of February 28, 2003 or the date
any Event of Default occurs.
1.8 "Event of Default" means each event specified in Section 6 of this
Agreement.
1.9 To the extent not defined in Section 1, and unless the context
otherwise requires, all other terms contained in this Agreement shall
have the meanings attributed to them by the Uniform Commercial Code in
force in the State of New Jersey, as of the Date of Agreement, to the
extent that same are used or defined therein.
1.10 To the extent not defined in Section 1, unless the context otherwise
requires, all accounting terms in this Agreement shall be construed in
accordance with Generally Accepted Accounting Principles, as of the
Date of Agreement to the extent that same are used or defined therein.
2. INCORPORATION OF RECITALS
Bank and Borrower acknowledge and agree that each and all of the Recitals
set forth at the beginning of this Agreement (i) are true, accurate and
complete as of the Date of Agreement and (ii) are hereby incorporated into
this Agreement
3. MODIFICATION OF THE REVOLVING LOAN
3.1 Simultaneously with the execution of this Agreement, Borrower will
execute and deliver to Bank A Master Advance Note Extension and
Modification Agreement in the principal sum of $700,000.00 which shall
modify& the terms of the Revolving Note as follows:
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3.1.1 The maturity date of the Revolving Note will be extended from
February 28, 2002 to February 28, 2003.
3.1.2 The Payment Schedule set forth in the Revolving Note shall be
modified to provide for monthly principal payments of $15,000.00 plus
all accrued interest commencing May 1, 2002 and continuing on the 1st
day of each successive month thereafter, with a final payment of all
outstanding principal, interest, late charges and costs (if any) due
at the February 28, 2003 maturity date.
3.1.3 The interest rate set forth in the Revolving Note shall be decreased
from Prime Rate of Bank plus three (3%) percent to Prime Rate of Bank
plus two (2%).
4. MODIFICATION OF THE CREDIT AGREEMENT
4.1 The definition of "Loan Documents" set forth at Section 1.7 of the
Credit Agreement is hereby deleted in its entirety and replaced with
the definition of 'Loan Documents' set forth in Section 1.5 of this
Agreement.
4.2 The "Termination Date" referenced in Section 1.10 of the Credit
Agreement is hereby changed from February 28, 2002 to February 28,
2003.
4.3 The following subsection shall replace the existing Section 1.11 of
the Credit Agreement:
"1.11 'Eligible Receivables' shall mean Receivables which are not more
than 90 days beyond date of invoice and shall not include:
(1) Receivables wit respect to which the Account Debtor is an officer
or employee of Borrower;
(2) Receivables with respect to which the Account Debtor is a
subsidiary of, affiliated with, or related to Borrower or its
shareholders, officers or directors;
(3) Receivables with respect to which goods are placed on
consignment, guaranteed sale, or other terms by reason of which
the payment by Account Debtor may be conditional.
(4) Foreign Receivables with respect to which the Account Debtor is
not a resident of or located in the United States (except
Receivables where the Account Debtors are located in Canada and
Puerto Rico and the ▇▇▇▇▇ ▇▇. Account);
(5) Receivables with respect to which Borrower is or may become
liable to the Account Debtor for goods sold or services rendered
by the Account Debtor to Borrower;
(6) Receivables which are subject to dispute, counterclaim, or
setoff;
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(7) Receivables with respect to which the goods have not been shipped
or delivered, or the services have not been rendered to the
Account Debtor;
(8) Receivables of any Account Debtor which has filed or had filed
against it a petition in bankruptcy or an application for relief
under any provision of any state or federal bankruptcy,
insolvency, or debtor-in-relief acts, or who has had appointed a
trustee, custodian, or receiver for the assets of such Account
Debtor; or who has made an assignment for the benefit of
creditors or has become insolvent or fails generally to pay its
debts (including its payrolls) as such debts become due; except
Receivables from the Polaroid account
(9) Receivables with respect to which the Account Debtor is the
United States government or any department or agency of the
United States;
(10) All Receivables of any Account Debtor if 25% or more of the
aggregate of all Receivables of such Account Debtor are 90 days
or more past due.
(11) Where an Account Debtor's balances comprise more than 25% of
Borrower's Receivables, the portion of the balance due from such
Account Debtor which exceeds 25% of the Borrowers Receivables.
Bank reserves the right, in Bank's sole discretion, to make the final
determination as to which of Borrowers Receivables constitute Eligible
Receivables."
4.4 The following subsection shall be added to Section 1.11 of the Credit
Agreement:
"1.12 "Eligible Inventory' shall refer to finished goods completed and
held by Borrower for shipment to a customer pursuant to a
preexisting purchase order and shall not include raw materials
or work in progress. Bank reserves the right, in Banks sole
discretion, to make the final determination as to which of
Borrowers Inventory constitutes Eligible Inventory."
4.5 Pursuant to the terms of the Loan Documents, all references to
re-borrowing any funds re-paid were previously deleted. The parties
now wish to provide for further advances, pursuant to the borrowing
base formula set forth below. Accordingly, the existing Section 2 of
the Credit Agreement (Secured) is hereby deleted and the following
subsections are substituted in its place:
"2.1 Subject to the terms and conditions of the Loan Documents, Bank
agrees to lend to Borrower and Borrower agrees to borrow from
Bank an aggregate principal amount at any one time outstanding
not to exceed the lesser of (i) $700,000.00; or (ii) 80% of
Eligible Receivables plus 50% of Eligible Inventory from the Date
of Agreement to the Termination Date. Within such limits the
Borrower may borrow, repay and re-borrow at any time or from time
to time.
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2.2 Borrower shall provide Bank with a Borrowing Base Certificate
substantially in the form attached hereto as Exhibit A on a
monthly basis, which shall be satisfactory to Bank in form and
substance in its sole discretion. In the event that Borrower
fails to provide a satisfactory Borrowing Base Certificate, Bank
shall have no obligation to make any advances.
2.3 If, at any time, Borrower is not in compliance with the borrowing
base formula set forth in Section 2.1 then Borrower shall, upon
demand by Bank, make an immediate payment to Bank in an amount
sufficient to bring the loan back into compliance with the
provisions of Section 2.1."
4.6 Subsection 4.1.4.2 of the Credit Agreement remains unchanged as
follows:
"4.1.4.2 The Borrower shall deliver to Bank within five (5) days of
filing with the Securities and Exchange Commission copies of each
quarterly l0-Q Report and Annual 10-K Report."
4.7 Subparagraph 4.1.4.3 of the Credit Agreement shall be deleted in its
entirety and replaced with the following:
"41.4.3 within twenty (20) days after the end of each calendar month,
Borrower shall provide Bank with (1) a report summarizing the
quantities, cost and fair market value of Borrower's Inventory;
(ii) and an aged analysis of all outstanding Accounts Receivable
in form and substance satisfactory to Bank, (iii) Borrowing Base
Certificate in form and substance satisfactory to Bank; and (iv)
a management prepared financial statement including a balance
sheet and statements of income, cash flow and retained earnings,
cacti prep area m accordance with generally accepted Accounting
Principles, consistently applied, and certified by Borrower's
Treasurer."
5. ADDITIONAL TERMS AND CONDITIONS
5.1 Borrower shall not sell, assign, lease or otherwise transfer or
dispose of any of the Collateral (other than sales of Inventory and
goods in the ordinary course of business) without the prior written
consent of Bank, which consent sin]] not be unreasonably withheld. In
the event that Bank approves any sales, assignments or leases of any
of Borrower's trade secrets, processes, or technologies, Borrower'
shall pay to Bank 50% of the net proceeds of sale which shall be
applied as a principal payment to the Revolving Note indebtedness.
5.2 Upon execution of this Agreement Borrower shall reimburse Bank for all
attorney's fees (whether or not such attorney is a regularly salaried
employee of Bank or any parent corporation of Bank) and costs,
incurred by Bank in documenting this Agreement and all related
documents.
5.3 Upon execution of this Agreement Borrower shall pay to Bank an
extension fee of $14,000.00.
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5.4 Bank may (in Bank's sole discretion) conduct quarterly field audits
(at Borrowers expense) of the Collateral and Borrower's Accounts,
books, records and Inventory commencing in April 2002. Borrower shall
cooperate in all respects with such audits and shall provide access as
requested by Bank at reasonable times.
5.5 The Borrower shall, within 30 days of the execution of this Agreement,
grant to Bank warrants for the purchase of 200,000 shares of the
common stock of Borrower at an exercise price of $0.11 (II cents) per
share, which shall be exercisable at any time from the date of the
warrant agreement to March 1, 2005. Borrower shall provide all
information requested by Bank in connection with the preparation of
the warrant documents and execute ~l1 documents deemed necessary by
Bank (in its sole discretion) in order to effectuate the grant of the
warrants. Failure by Borrower to abide by the terms of this Section
5.5 shall constitute an Event of Default pursuant to Section 7 of this
Agreement.
6. REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower represents and warrants to Bank as follows:
6.1 Borrower has requested that Bank enter into this Agreement and such
request is in the best interests of Borrower.
6.2 Borrower reaffirms all of the terms and conditions of each of the Loan
Documents. Borrower acknowledges and agrees that, except as expressly
modified by the provisions of this Agreement, the terms and conditions
of each of the Loan Documents shall remain unchanged and in full force
and effect.
6.3 Borrower acknowledges and agrees that, as of the Date of Agreement the
Revolving Note (as modified and/or extended) and all other Obligations
of Borrower to Bank are not subject to any defenses, set-offs or
counterclaims of any kind whatsoever; and any and all such defenses,
set-o ifs or counterclaims are hereby expressly waived by Borrower.
6.4 Borrower acknowledges and agrees that Bank's decision to refrain from
exercising part or all of the rights and remedies available to Bank
under the Loan Documents as a result of any existing defaults prior to
the parties entering into this Agreement was without prejudice to, and
did not waive or otherwise modify any of those rights and remedies.
6.5 Borrower has been duly incorporated and organized, and is validly
existing as a corporation in good standing under applicable state or
federal law, and is duly qualified as a foreign corporation in those
jurisdictions where the conduct of its business or the ownership of
its properties require qualification.
6.6 Nothing contained in this Agreement shall be construed as requiring
Bank to extend the Extension Period beyond February 28, 2003.
6.7 For Borrower and for Borrower's heirs, personal representatives,
successors and assigns, Borrower does hereby remise, release and
forever discharge Bank, its officers, directors, employees and
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stockholders, of and from any and all manner of actions and causes of
action whatsoever, at law or in equity, and including, but not limited
to, all claims, defenses, set-offs or counterclaims of any kind
whatsoever relating to the Loan Documents and this Agreement, which
Borrower or Borrowers heirs, personal representatives, successors and
assigns ever bad or now have against Bank, its officers, directors,
employees and/or stockholders.
6.8 This Agreement and all of the other Loan Documents executed by or on
behalf of Borrower have been duly executed and delivered by the
parties thereto, and each constitutes a legal, valid, and binding
obligation of Borrower, enforceable in accordance with its respective
terms (subject to any applicable bankruptcy, insolvency, moratorium,
or other similar laws affecting generally the enforcement of creditors
rights).
6.9 Borrower will execute from time to time such agreements, instruments
or other documents as requested by Bank to create, perfect or protect
Bank's security interests and liens referred to in this Agreement and
in the other Loan Documents, so as to carry out the purpose and intent
of this agreement
6.10 There is no claim, loss, contingency, litigation, or proceeding
whether or not pending, threatened, or imminent against or otherwise
affecting Borrower that involves the possibility of any judgment or
liability not fully covered by insurance or that may result in a
material adverse change in the business, properties or condition
(financial or otherwise) of Borrower.
6.11 Borrower has filed all tax returns which are required to be filed and
have paid all taxes shown to be due and payable on said returns or on
any assessment received by Borrower, to the extent that such taxes and
assessments have become due and payable.
7. EVENTS OF DEFAULT
In addition to the Events of Default set forth in the Loan Documents, the
occurrence of any one or more of the following events shall constitute an
Event of Default under this Agreement and the other Loan Documents.
7.1 The failure of Borrower to pay, as and when due, any sums which
Borrower is required to pay pursuant to any of the Loan Documents.
7.2 Failure of Borrower to perform or observe any term, covenant, warranty
or agreement contained in any of the Loan Documents.
7.3 Any sale, transfer, or other disposition of any Collateral securing
the Obligations (other than the sale of Inventory and goods in the
ordinary course of Borrower's Business) without the prior written
consent of Bank, which consent shall not be unreasonably withheld.
7.4 If any of the Loan Documents at any time after execution and delivery
and for any reason, shall cease to be in frill force and effect or
shall be declared to be null and void, or Borrower shall deny that
they have any or limber liability & obligation under any of the Loan
Documents to which Borrower is a party, and Borrower shall fail to
refract in writing such denial within three (3) days after Bank shall
have notified Borrower that their denial of liability or obligation
constitutes an Event of Default.
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8. RIGHTS AND REMEDIES
8.1 Upon the occurrence of any Event of Default, Bank may, at its option
and without notice to Borrower, enforce this Agreement enforce any of
the Loan Documents in accordance with their terms, and/or exercise any
and all rights and remedies available pursuant to the Loan Documents
in such manner as Bank IN its sole and exclusive discretion
determines.
8.2 Upon The occurrence of any Event of Default Bank and any officer or
agent of Bank, will hereby be constituted and appointed as true and
lawful attorney-in-fact of Borrower with the power to sell, assign,
▇▇▇ for, collect or compromise payment of all or any part of the
Collateral in the name of Borrower, or in its own name, or make any
other disposition of Collateral, or any part thereof, which
disposition may be for cash, credit or any combination thereof, and
Bank may purchase all or any part of the Collateral at public sale or,
if permitted by law, private sale, and in lieu of actual payment of
such purchase price, may set-off the amount of such price against the
Obligations.
8.3 Bank shall have, in addition to any other rights and remedies
contained herein, and/or in any Loan Document, all of the rights and
remedies of a secured party under the Uniform Commercial Code in force
in the State of New Jersey as of the Date of Agreement and all rights
and remedies available at law or in equity, all of which rights and
remedies shall be cumulative, to the extent permitted by law.
8.4 Any notice required to be given by Bank of a sale or other disposition
of the Collateral or other intended action by Bank made in accordance
with the terms herein of any Loan Document at least ten (10) days
prior to such proposed action, shall constitute fair and reasonable
notice to Borrower of any such action. In the event that any of the
Collateral is used in conjunction with any real estate, the sale of
the Collateral in conjunction with and as one parcel with any such
real estate of Borrower shall be deemed to be a commercially
reasonable manner of sale. The net proceeds realized by Bank upon any
such sale or other disposition, after deduction of the expenses of
retaking, holding, preparing for sale, selling or the like and
reasonable attorneys' fees and any other expenses incurred by Bank,
shall be applied toward satisfaction of the Obligations hereunder.
Bank shall account for and return to Borrower any surplus realized
upon such sale or other disposition and Borrower shall remain liable
for any deficiency. The commencement of any action, legal or
equitable, shall not affect the security interest of Bank in the
Collateral until the Obligations hereunder or any judgment therefore
are fully paid.
9. GENERAL PROVISIONS
9.1 The failure of Bank at any time or times hereafter to require strict
performance by Borrower of any of the provisions, warranties, terms
and conditions contained in this Agreement or in any Loan Document
shall not waive, affect or diminish any right of Bank at any tine or
times thereafter to demand strict performance thereof; and no rights
of Bank hereunder shall be deemed to have been waived by any act or
knowledge of Bank, its agents, officers or employees, unless such
waiver is contained in a writing signed by an officer of Bank and
directed to Borrower specifying such waiver. No waiver by Bank of any
of its rights shall operate as a waiver of any other of its rights or
any of its rights on a future occasion.
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9.2 Any demand or notice required or permitted to be given hereunder shall
be deemed effective when deposited in the United States mail and sent
by certified mail, return receipt requested, postage prepaid,
addressed to Bank, Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President, at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or to Borrower at
Borrower's address, or to such other address as may be provided by the
party to be notified, on ten (10) days prior written notice to the
other party.
9.3 This Agreement contains the entire understanding between the parties
hereto with respect to the transactions contemplated herein and such
understanding shall not be modified except in writing signed by or on
behalf of the< parties hereto.
9.4 Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law; should any portion of this Agreement be declared
invalid for any reason IN any jurisdiction, such declaration shall
have no effect upon the remaining portions of this Agreement.
Furthermore the entirety of this Agreement shall continue in full
force and effect in all other jurisdictions and said remaining
portions of this Agreement shall continue in full force and effect in
the subject jurisdiction as if this Agreement had been executed with
the invalid portions thereof deleted.
9.5 In the event Bank seeks to take possession of any or all of the
Collateral by court process, Borrower hereby irrevocably waives any
bonds and any surety or security relating thereto required by any
statute, court rule or otherwise as an incident to such possession,
and waives any demand for possession prior to the commencement of any
suit or action to recover said Collateral.
9.6 Borrower agrees that in the event a petition in Bank is filed by or
against Borrower or Guarantors, any "cash collateral" as defined in
Section 363 of the U.S. Bankruptcy Code shall be used only in
accordance with budgets deemed acceptable by Bank in its sole and
absolute discretion.
9.7 The provisions of this Agreement shall be binding upon and shall inure
to the benefit of the heirs, administrators, successors and assigns of
Bank and Borrower, provided, however, Borrower may not assign any of
its rights or delegate any of its obligations hereunder without the
prior written consent of Bank.
9.8 This Agreement is and shall be deemed to be a contract entered into
and made pursuant to the laws of the State of New Jersey and shall in
all respects be governed, construed, applied and enforced in
accordance with the laws of said State.
9.9 Each reference herein or in any Loan Document to Bank shall be deemed
to include its successors and assigns, and each reference to Borrower
and any pronouns referring thereto as used herein shall be construed
in the masculine, feminine, neuter, singular or plural as the context
may require, and shall be deemed to include the legal representatives,
successors and assigns of Borrower, all of whom shall be bound by the
provisions hereof or in any Loan Document. The term `Borrower as used
herein shall, if this Agreement or any Loan Document otherwise
requires each of them; and each and every representation, promise,
agreement and undertaking shall be joint and several.
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9.10 The section headings herein are included for convenience only and
shall not be deemed to be a part of this Agreement.
9.11 Borrower shall not hold Bank liable due to any act or failure to act
by Bank herein or under any Loan Document except as a result of Bank's
gross negligence or willful misconduct. This provision shall survive
the termination or expiration of this Agreement or any Loan Document.
10. WAIVER OF JURY TRIAL
BORROWER WAIVES TRIAL BY JURY AND CONSENTS TO AND CONFERS PERSONAL
JURISDICTION ON THE COURTS OF THE STATE OF NEW JERSEY OR OF THE FEDERAL
GOVERNMENT, AND EXPRESSLY WAIVES ANY OBJECTION AS TO VENUE IN ANY SUCH
COURTS, AN) AGREES THAT SERVICE OF PROCESS MAY BE MADE ON BORROWER BY
MAILING A COPYOF THE SUMMONS TO BORROWER AT BORROWER'S ADDRESS. BANK
LIKEWISE WAIVES TRIAL BY JURY.
BORROWER:
ATTEST: FAIRMOUNT CHEMICAL CO., INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
FLEET NATIONAL BANK, Successor by Merger
ATTEST To SUMMIT BANK.
/s/ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
