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Exhibit 10.4
PROMISSORY NOTE
ADJUSTABLE RATE MORTGAGE LOAN
Date of Note: February 29, 2000
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Amount of Note: Twelve Million and 00/100 Dollars ($12,000,000.00)
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Maturity Date: February 28, 2010
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Interest Rate:
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The "Interest Rate" shall be the Prime Rate of the Lender, as defined
herein, charged by the Lender, computed daily for the actual number of days
elapsed over a year of 360 days. For purposes hereof, Prime Rate shall mean the
rate charged by Lender as its "Prime Rate", computed daily for the actual number
of days elapsed over a year of 360 days. Prime Rate is that percentage rate of
interest which is announced by Lender from time to time as its Prime Rate, which
is in effect until a new rate is announced and which provides a base to which
loan rates may be referenced; it is not necessarily the Lender's lowest loan
rate. In the event of a change in such Prime Rate, the interest rate hereunder
shall be adjusted accordingly, and such adjustment shall become effective on the
date such Prime Rate changes.
Amortization Period:
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The "Amortization Period" shall equal ten (10) years.
Principal and Interest Monthly Payment:
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Commencing on April 1, 2000 and on the first Business Day, as defined
herein, of each calendar month thereafter during the term hereof, principal
payments shall be due and payable in the amount of One Hundred Thousand and
00/100 Dollars ($100,000.00) each. Commencing on April 1, 2000 and on the first
Business Day of each calendar month thereafter during the term hereof, Borrower
shall make interest payments to Lender as accrued and as determined in
accordance with the Interest Rate provided above. Business Day shall mean any
day of the year on which banks are not required or authorized to close in
Cincinnati, Ohio.
FOR VALUE RECEIVED, the undersigned ("Borrower") does hereby covenant
and promise to pay to the order of THE PROVIDENT BANK, an Ohio banking
corporation, or its successors or assigns, at its principal office located at
One East Fourth Street, Cincinnati, Ohio, 45202 ("Lender"), or at such other
place as the Lender may designate to Borrower in writing from time to time, in
legal tender of the United States, the Amount of Note, together with interest at
the Interest Rate on the
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Amount of Note until this Note is paid in full. Borrower shall pay a late
payment premium of five percent (5%) of any principal or interest payment made
more than ten (10) days after the due date which shall be due with any such late
payment.
All payments of principal and interest made hereunder by Borrower shall
be applied monthly, first to the payment of sums advanced by the Lender, if any,
as provided in this Note, the Open-End Mortgage dated of even date herewith
granted by Borrower to Lender ("Mortgage") or in any other document executed as
collateral security for the Note ("Loan Documents"); second, to interest which
became due previously; third, to interest which became due for the month for
which payment is being made; fourth, to the payment of late charges provided
herein; and the balance to principal, until the full amount of principal and
interest has been paid, or until the unpaid balance of this Note matures, if
sooner.
Upon each monthly determination of the Interest Rate and in accordance
with Lender's normal billing process, the Lender will mail a statement to the
Borrower at the address then listed for Borrower on the Lender's records. Such
statement will provide notice that the Interest Rate has changed, the effective
date of such change, the revised amount of the Borrower's Principal and Interest
Monthly Payment as determined in accordance with the adjusted Interest Rate
which will continue to include a monthly principal payment of One Hundred
Thousand and 00/100 Dollars ($100,000.00) per month, and will contain such other
information as may be required by law or which the Lender may elect to provide
to Borrower. Borrower promises to pay to Lender such revised Principal and
Interest Monthly Payment as determined in accordance with the terms hereof.
Unless sooner paid, the outstanding principal balance and all accrued
interest remaining due hereunder shall be payable on the Maturity Date.
This Note is secured by the Mortgage and the other Loan Documents which
Mortgage and other Loan Documents specify various defaults (each, a "Default")
upon the happening of which all sums owing on this Note may, at the Lender's
option, be declared immediately due and payable without demand or notice.
During the continuance of a Default, the Amount of Note outstanding
shall bear interest at four percent (4%) per annum in excess of the Interest
Rate in effect from time to time, each change in such rate to be effective as of
the date of such change ("Default Rate").
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceedings (whether at the trial or appellate level), or should this Note be
placed in the hands of attorneys for collection upon the occurrence of a
Default, Borrower agrees to pay, in addition to the principal, premium and
interest due and payable hereon, all costs of collection, including reasonable
attorneys' fees and expenses.
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All parties to this Note, whether Borrower, principal, surety,
guarantor or endorser, hereby jointly and severally waive presentment for
payment, demand, protest, notice of protest, notice of dishonor and any other
notice required to be given by law in connection with the delivery, acceptance,
performance, default or enforcement of this Note or any endorsement or guaranty
of this Note, except as provided in the Mortgage or the Guaranty, and consent to
all forbearance or waiver of any term hereof or release or discharge by the
holder hereof of any of the Borrower, guarantors, endorsers or sureties or the
release, substitution or exchange of any security for the payment hereof or the
failure to act on the part of the holder or any other indulgence shown by the
holder from time to time, in one or more instances (without notice to or further
assent from the Borrower, guarantors, endorsers or sureties) and the Borrower,
guarantors, endorsers or sureties agree that no such action, failure to act or
failure to exercise any right or remedy on the part of the holder shall in any
way affect or impair the obligations of the Borrower hereunder or of any
guarantors, endorsers or sureties or be construed as a waiver by the holder of
or otherwise affect any of the holder's rights under this Note, under any
endorsement or guaranty of this Note or under any document or instrument
evidencing any security for payment of this Note.
This Note may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any change or
modification is sought.
Anything herein to the contrary notwithstanding, the obligations of
Borrower under this Note, the Mortgage or other Loan Documents shall be subject
to the limitation that payments of interest shall not be required to the extent
that receipt of any such payment by the Lender would be contrary to provisions
of law applicable to the Lender limiting the maximum rate of interest that may
be charged or collected by the Lender.
The Borrower shall have the right to prepay all, or any part, of the
Amount of Note outstanding and all accrued interest thereon without premium or
penalty. Any partial prepayments of principal shall be applied against
installments of principal due hereunder in the inverse order of maturity.
This Note shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of Ohio.
Remainder of page intentionally left blank. Signature page follows.
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AS A SPECIFICALLY BARGAINED INDUCEMENT FOR LENDER TO EXTEND CREDIT TO
BORROWER, THE BORROWER HEREBY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
LAWSUIT OR PROCEEDING RELATED TO THIS NOTE OR ARISING IN ANY WAY FROM THE
INDEBTEDNESS OR TRANSACTIONS INVOLVING THE LENDER AND THE BORROWER.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note on
the day and year first above written.
BORROWER:
DURAMED PHARMACEUTICALS, INC.
a Delaware corporation
By: /s/ Timothy J. Holt
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Name: Timothy J. Holt
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Title: Senior Vice President
Finance & Administration
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