EXHIBIT 10.4
PROMISSORY NOTE
Floating Rate (LIBOR)/
Scheduled Principal Payments
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
December 28, 1995
$2,500,000.00
1. For value received, the undersigned promises to pay to the
order of Fleet Credit Corporation ("Lender") having its principal
place of business in Providence, Rhode Island (together with any
other holder of this Note, hereinafter referred to as the
"Holder"), the principal sum of $2,500,000.00, together with
interest thereon as provided herein.
2. This Note shall be payable by the undersigned to Holder in 36
consecutive installments of principal and interest (the "Payments")
commencing on January 28, 1996 and continuing each month thereafter
through and including December 27, 1998 (the "Maturity Date") Each
succeeding Payment shall be due and payable on the same day of the
month as in the initial Payment set forth above in each succeeding
payment period during the term of the Note (each, a "Payment
Date"). The principal amount of this Note shall be payable by the
undersigned to Holder in 36 consecutive monthly installments (the
"Principal Installments") in the amounts set forth in and
corresponding to each of the numbered Payments listed in Schedule
A attached hereto and incorporated herein by this reference.
3. Interest shall accrue on the entire principal amount of this
Note outstanding from time to time as provided below, from the date
hereof until the principal amount of this Note is paid in full, and
shall be due and payable together with the Principal Installments
on each Payment Date. The final Payment due and payable on the
Maturity Date shall in any event be equal to the entire outstanding
and unpaid principal amount of this Note, together with all accrued
and unpaid interest, charges and other amounts owing hereunder and
under the Security Agreement (as defined below). Interest shall
accrue on the outstanding principal balance of this Note at a
variable rate of interest, adjusted monthly, equal to the Index
Rate (as hereinafter defined) plus 1.75% per annum (the "Interest
Rate"). The "Index Rate" for the calculation of interest payable
with any Payment shall be the one-month London Interbank Offered
Rate (LIBOR) as published in the Wall Street Journal in effect as
of the 15th day of the month preceding the applicable Payment Date.
All interest hereunder shall be calculated on the basis of a year
of 360 days composed of 12 months of 30 days each.
4. The entire unpaid principal balance of the Note may be prepaid
in full (but not in part) upon thirty days written notice to
Holder, provided that any such prepayment shall be made together
with (a) all accrued interest and other charges owing hereunder or
under the Security Agreement, and (b) if any principal payment on
this Note is made for any reason whatsoever on a date other than
the Payment Date, the undersigned shall: (i) pay to the Holder
interest accrued thereon; and (ii) on demand, indemnify the Holder
against all losses including actual loss of profit and expenses
suffered by it in liquidating or otherwise employing deposits
acquired to fund this Note until the end of the applicable
Payment Date. A certificate of the Holder as to the amount
required to be paid by the undersigned under this subsection 4(b)
shall accompany such demand and shall be final and conclusive,
except in the case of manifest error or bad faith.
5. Time is of the essence in the payment and performance of those
Obligations which are evidenced by this Note. In the event any
amount due hereunder is not paid within ten (10) days of the date
when due, the undersigned agrees to pay an administrative and late
charge equal to one percent (1%) on and in addition to the amount
of such overdue amount. In addition, the undersigned shall pay
overdue interest on any delinquent Payment or other Obligation due
(by reason of acceleration or otherwise) from thirty (30) days
after the due date thereof through the date of payment thereof at
a rate of interest equal to one percent (1%) in excess of the
Interest Rate.
6. Each payment hereunder shall be made in lawful money of the
United States and shall be payable to such account or address as
Holder shall from time to time direct the undersigned. Whenever
any payment to be made under this Note shall be stated to be due on
a Saturday, Sunday or a public holiday, or the equivalent for banks
generally under the laws of the State of Connecticut, such payment
shall be made on the next succeeding Business Day, and such
extension of time shall be included in the computation of the
payment of interest. All amounts received hereunder or in respect
of this Note shall be applied first, to accrued late charges and
any other costs or expenses due and owing hereunder or under the
terms of the Security Agreement; second, to accrued interest; and
third, to unpaid principal. It is the intention of Holder to comply
with all applicable usury laws. Accordingly, it is agreed that
notwithstanding anything to the contrary contained herein, in no
event shall any provision contained herein require or permit
interest in excess of the maximum amount permitted by applicable
law to be paid by the undersigned. If necessary to give effect to
these provisions, Holder will, at its option, in accordance with
applicable law, either refund any amount to the undersigned to the
extent that it was in excess of that allowed by applicable law or
credit such excess amount against the then unpaid principal balance
hereunder.
7. Failure to pay this Note or any installment hereunder promptly
within ten (10) days when due (unless payments are made by auto-
debit from the undersigned's accounts with Fleet Bank, N.A. in
which case no grace period shall apply), or the occurrence of an
"Event of Default" under the Security Agreement of this date
between Par Pharmaceutical, Inc. and the Holder (the "Security
Agreement"), or default or failure in the performance or due
observance of any of the terms, conditions or obligations (and
expiration of any applicable grace or cure period) under any other
agreement or instrument between the undersigned (or any endorser,
guarantor, surety or other party liable for the undersigned's
obligations hereunder, or any other entity controlling, controlled
by, or under common control with the undersigned) and Holder (or
any other entity controlling, controlled by or under common control
with Holder), shall constitute a default hereunder and entitle
Holder to accelerate the maturity of this Note and to declare the
entire unpaid principal balance and all accrued interest and other
charges hereunder (including prepayment fees calculated as of the
date of default) and under the Security Agreement to be immediately
due and payable, and to proceed at once to exercise each and every
one of the remedies provided in the Security Agreement or otherwise
available at law or in equity.
8. The undersigned and all other parties who may be liable
(whether as endorsers, guarantors, sureties or otherwise) for
payment of any sum or sums due or to become due under the terms of
this Note waive diligence, presentment, demand, protest, notice of
dishonor and notice of any other kind whatsoever and agree to pay
all costs incurred by Holder in enforcing its rights under this
Note or the Security Agreement, including reasonable attorneys'
fees, and they do hereby consent to any number of renewals or
extensions at any time in the payment of this Note. No extension of
time for payment of this Note made by any agreement with any person
now or hereafter liable for payment of this Note shall operate to
release, discharge, modify, change or affect the original liability
of the undersigned under this Note, either in whole or in part. No
delay or failure by Holder hereof in exercising any right, power,
privilege or remedy shall be deemed to be a waiver of the same or
any part thereof; nor shall any single or partial exercise thereof
or any failure to exercise the same in any instance preclude any
future exercise thereof, or exercise of any other right, power,
privilege or remedy, and the rights and remedies provided for
hereunder are cumulative and not exclusive of any other right or
remedy available at law or in equity. The Holder of this Note may
proceed against all or any of the Collateral (as defined in the
Security Agreement) or against any guarantor hereof, or may proceed
contemporaneously or in the first instance against the undersigned,
in such order and at such times following default hereunder as
Holder may determine in its sole discretion. All of the
undersigned's obligations under this Note are absolute and
unconditional, and shall not be subject to any offset or deduction
whatsoever. The undersigned waives any right to assert, by way of
counterclaim (other than mandatory or compulsory counterclaims) or
affirmative defense (other than payment in full) in any action to
enforce the undersigned's obligations hereunder, any claim
whatsoever against the Holder of this Note.
9. The undersigned represents and warrants to the Holder that:
(a) The undersigned is a corporation duly organized,
validly existing and in good standing under the laws of the state
of New Jersey. The undersigned has all requisite corporate power
and authority to own and operate its properties and to carry on its
business as presently conducted and is qualified to do business and
is in good standing as a foreign corporation in each jurisdiction
wherein the character of the properties owned or leased by it
therein or in which the transaction of its business therein makes
such qualification necessary and where failure to so qualify would
not have a material adverse effect on the undersigned's condition,
financial or otherwise.
(b) The undersigned has full corporate power and
authority to enter into and perform the obligations under this
Note, to make the borrowings contemplated herein, to execute and
deliver this Note and all other documents in connection herewith
(collectively, the "Loan Documents") and to incur the obligations
provided for herein and therein, all of which have been duly
authorized by all necessary and proper corporate action. No other
consent or approval or the taking of any other action in respect of
shareholders or of any public authority is required as a condition
to the validity or enforceability of this Note or any of the other
Loan Documents. The execution and delivery of this Note is for
valid corporate purposes and will not violate the undersigned's
Certificate of Incorporation or Bylaws.
(c) This Note constitutes and the other Loan Documents
delivered in connection herewith shall constitute, valid and
legally binding obligations of the undersigned, enforceable in
accordance with their respective terms, except as enforcement may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general principles
of equity.
(d) To the best of the undersigned's knowledge, the
execution, delivery and performance by the undersigned of this Note
and the other Loan Documents (i) do not violate any provision of
the Certificate of Incorporation or Bylaws of the undersigned, (ii)
do not violate any order, decree or judgment, or any provision of
any statute, rule or regulation, (iii) do not violate or conflict
with, result in a breach of or constitute (with notice or lapse of
time, or both) a default under any shareholder agreement, stock
preference agreement, mortgage, indenture or contract to which the
undersigned is a party, or by which any of its properties are
bound.
10. The undersigned shall furnish to the Holder the following to
be prepared on a consolidated basis and in conformity with
generally accepted accounting principles ("GAAP"), applied on a
basis consistent with the preceding period:
(a) a copy of the undersigned's SEC Form 10-K upon
filing of same with the Securities and Exchange Commission;
(b) a copy of the undersigned's SEC Form 10-Q upon
filing of same with the Securities and Exchange Commission;
(c) promptly upon the Holder's written request from time
to time, such other information about the financial condition and
operations of the undersigned as the Holder may reasonably request.
11. The undersigned agrees and covenants that from the date hereof
until payment in full and performance of this Note, the undersigned
shall, at the end of each fiscal quarter on a consolidated basis,
be in compliance with the following financial covenants, all
determined in accordance with GAAP:
(a) Net Worth. (i) Maintain a Net Worth of not less
than SIXTY-FIVE MILLION and 00/100 DOLLARS ($65,000,000) increasing
at the rate of not less than seventy-five percent (75%) of
quarterly net income (after tax) to the undersigned.
(b) Ratio of Funded Debt to Tangible Net Worth.
Maintain a ratio of Funded Debt to Tangible Net Worth not to exceed
the following:
Ratio Dates
0.40 to 1.0 from October 1, 1995 through and including
September 28, 1996.
0.35 to 1.0 from September 29, 1996 through and including
September 27, 1997
0.30 to 1.0 from September 28, 1997 through and including
September 26, 1998
(c) Fixed Charge Coverage Ratio. Maintain a Fixed
Charge Coverage Ratio as follows, to be calculated on a rolling
four quarter basis:
Ratio Dates
1.20 to 1.0 December 28, 1995
1.20 to 1.0 June 29, 1996
1.20 to 1.0 September 28, 1996
1.25 to 1.0 December 28, 1996 and thereafter
(d) Current Ratio. Maintain a Current Ratio of not less
than 2.0 to 1.0.
(e) For the purposes of this Section 11, the following
terms shall have the following meanings:
(i) "Capital Assets: shall mean assets that in
accordance with GAAP are required or permitted to be depreciated or
amortized on the undersigned's balance sheet.
(ii) "Capital Leases" shall mean capital leases,
conditional sales contracts and other title retention agreement
related to the purchase or acquisition of Capital Assets.
(iii) "Current Maturity of Long Term Debt ("CMLTD")"
shall mean the current maturity of long term Indebtedness paid
during the applicable period, including, but not limited to,
amounts required to be paid under Capital Leases.
(iv) "Current Ratio" shall mean, for the applicable
period, the ratio of Total Current Assets to Total Current
Liabilities.
(v) "Earnings Before Interest, Taxes, Depreciation
and Amortization ("EBITDA")" shall mean, for the applicable period,
income from continuing operations before the payment of interest
and taxes plus depreciation, amortization and other non-cash
charges (except accounting changes and one-time writeoffs)
determined in accordance with GAAP.
(vi) "Fixed Charge Coverage Ratio" shall mean for
the applicable period, the ratio of EBITDA for the four quarters
ending on the test date to CMLTD as of the beginning of such four
quarters plus interest expense, income taxes and dividends for such
four quarters. For purposes of the calculation of Fixed Charge
Coverage Ratio, for each of the fiscal quarters in the fiscal year
ending September 28, 1996, EBITDA shall exclude THREE MILLION
DOLLARS AND NO/100 ($3,000,000.00), (the "$3,000,000.00
Exclusion") of research and development expenditures. After the
fiscal year ending September 28, 1996 and starting with the fiscal
quarter ending December 28, 1996, there is no longer the above
$3,000,000.00 Exclusion.
(vii) "Funded Debt" shall mean all debt obligations
as evidenced by a note or other instrument in the public and
private markets, excluding accounts payable and accrued obligations
arising out of the normal course of business.
(viii) "Intangible Assets" shall mean assets that in
accordance with GAAP are properly classifiable as intangible
assets, including, but not limited to, goodwill, franchises,
licenses, patents, trademarks, trade names and copyrights.
(ix) "Net Worth" shall mean the excess of the
undersigned's Total Assets minus its Total Liabilities.
(x) "Tangible Net Worth" shall mean the excess of
the undersigned's Total Assets minus its Intangible Assets and its
Total Liabilities.
(xi) "Total Assets" shall mean total assets
determined in accordance with GAAP.
(xii) "Total Current Assets" shall mean total
current assets determined in accordance with GAAP.
(xiii) "Total Current Liabilities" shall mean total
current Indebtedness determined in accordance with GAAP.
(xiv) "Total Liabilities" shall mean total
Indebtedness determined in accordance with GAAP.
12. THIS NOTE AND THE LEGAL RELATIONS OF THE UNDERSIGNED AND
HOLDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF RHODE ISLAND, WITHOUT
REGARD TO PRINCIPLES REGARDING THE CHOICE OF LAW. THE UNDERSIGNED
HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF RHODE ISLAND AND THE FEDERAL DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND FOR THE PURPOSES OF ANY SUIT, ACTION OR
OTHER PROCEEDING ARISING OUT OF ITS OBLIGATIONS HEREUNDER, AND
EXPRESSLY WAIVES ANY OBJECTIONS THAT IT MAY HAVE TO THE VENUE OF
SUCH COURTS. THE UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS
NOTE.
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed by its duly authorized representative as of the date first
above written.
ATTEST/WITNESS: MAKER:
/s/Pura Donald PHARMACEUTICAL RESOURCES, INC.
- - ------------------------------
Name: Pura Donald By: /s/ Robert I. Edinger
------------------------- -------------------------
Name: Robert I. Edinger
------------------------
Title: Executive Vice President
-------------------------
<PAGE.
PROMISSORY NOTE NO. 32047
SCHEDULE A
PAYMENT NO. PRINCIPAL INSTALLMENT**
1-36 $69,444.45
** Interest is calculated separately and will be billed and payable
at the time for payment of each Principal Installment in accordance
with the terms of the Promissory Note identified above.
ATTEST/WITNESS: MAKER: PHARMACEUTICAL RESOURCES, INC.
/s/Pura Donald By: /s/Robert I. Edinger
- - ---------------------- ---------------------------------
Name: Pura Donald Name: Robert I. Edinger
---------------- ------------------------------
Title: Executive Vice President
------------------------------