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Exhibit 10.4
COMMERCIAL LOAN
NOTE NO. 57
PROMISSORY NOTE
$2,000,000.00 Cincinnati, Ohio September 30, 1995
The undersigned, for value received, promises to pay to the order of The
Provident Bank, at any of its offices, the sum of Two Million and no/100
Dollars ($2,000,000.00), (the "Maximum Credit") or so much thereof as is loaned
by the holder pursuant to the provisions hereof, together with interest until
demand or maturity at the rate of the prime rate plus 1% (P + 1%) per year
computed on the basis of a year of 360 days for the actual number of days
elapsed, and after default hereunder, demand or maturity, whether at stated
maturity or by acceleration, at a rate four (4) percentage points greater than
the stated rate (the "Default Rate"). Interest shall be due and payable on the
last day of each month, and at maturity. Principal shall be due and payable on
September 30, 1996. This Note is one of the Notes issued pursuant to Section
2.1 of, and subject to the terms and conditions of, a certain Amended and
Restated Loan and Security Agreement dated December 31, 1994 (the "Loan and
Security Agreement") between the undersigned and The Provident Bank. The
undersigned hereby state(s) that the purpose of the loan evidenced by this Note
is for working capital.
[X] REVOLVING CREDIT: If this box is checked, this Note is a revolving credit
subject to the terms of this paragraph. Subject to the conditions hereof and
of any other agreements between the parties relating hereto and until demand,
if the principal is payable on demand, or maturity (whether at scheduled or
accelerated maturity), if the principal is payable other than on demand, the
undersigned may borrow and reborrow from the holder and the holder may, in its
sole discretion, lend and relend to the undersigned such amounts not to exceed
the Maximum Credit as the undersigned may at any time and from time to time
request upon satisfactory notice to the holder.
Notwithstanding anything to the contrary contained herein or in any other
agreement between the undersigned and the holder, if this Note provides that
the principal hereof is payable on demand, then this Note is a demand Note due
and owing immediately, without prior demand of the holder and immediate action
to enforce its payment may be taken at any time, without notice and without
reason. If any payment of principal or interest is not paid when due, or if an
Event of Default has occurred and is continuing under the Loan and Security
Agreement, this Note shall, if payable other than on demand, at the option of
its holder, become immediately due and payable, without demand or notice. The
undersigned shall promptly provide such financial information as the holder
shall reasonably request from time to time.
As collateral security for the payment of the amounts from time to time
owing hereunder, Borrower and all indorsers hereby grants to the holder a
security interest in (i) all property in which the holder now or hereafter
holds a security interest pursuant to any and all assignments, pledges and
security agreements between the undersigned and the holder and (ii) all
accounts, securities and properties now or hereafter in the possession of the
holder and in which the undersigned or any indorsers have any interest. Upon
this Note becoming due under any of its terms and provisions, and not being
fully paid and satisfied, the total sum then due hereunder may, at any time and
from time to time, be charged against any account or accounts maintained with
the holder hereof by any of the undersigned or any indorser, without notice to
or further consent from any of them, and the undersigned and all indorsers
agree to be and remain jointly and severally liable for all remaining
indebtedness represented by this Note in excess of the amount or amounts so
applied. The undersigned and the holder intend that this indebtedness shall be
secured by any and all mortgages heretofore or hereafter granted by the
undersigned in favor of the holder.
There will be a minimum finance charge of $50.00 for each billing period.
Prime rate is that annual percentage rate of interest which is established by
The Provident Bank from time to time as its prime rate, whether or not such
rate is publicly announced, and which provides a base to which loan rates may
be referenced. Prime rate is not necessarily the lowest lending rate of The
Provident Bank. A rate based on the prime rate will change each time and as of
the date that the prime rate changes. If any payment of principal or interest
is not paid when due or if the undersigned shall otherwise default in the
performance of its obligations hereunder or under any other note or agreement
with the holder, the holder at its option, may charge and collect, or add to
the unpaid balance hereof, a late charge up to the greater of $250 or .1% of
the unpaid balance of this Note at the time of such delinquency for each such
delinquency to cover the extra expense incident to handling delinquent
accounts, and/or increase the interest rate on the unpaid balance to the
Default Rate. The holder may charge interest at the rate provided herein on
all interest and other amounts owing hereunder which are not paid when due.
The undersigned, all indorsers hereof, any other party hereto, and any
guarantor hereof (collectively "Obligors") each (i) waive(s) presentment,
demand, notice of demand, protest, notice of protest and 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, of any
indorsement or guaranty of this Note or of any document or instrument
evidencing any security for payment of this Note; and (ii) consent(s) to any
and all delays, extensions, renewals or other modifications of this Note or
waivers of any term hereof or release or discharge by the holder of any of
Obligors or
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release, substitution or exchange of any security for the payment hereof or the
failure to act on the part of the holder or any indulgence shown by the holder,
from time to time and in one or more instances, (without notice to or further
assent from any of Obligors) and agree(s) 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 any Obligors or be construed as a
waiver by the holder of, or otherwise affect, any of the holder's rights under
this Note, under any indorsement or guaranty of this Note or under any document
or instrument evidencing any security for payment of this Note. The
undersigned and all indorsers further agree to reimburse the holder for all
advances, charges, costs and expenses, including reasonable attorneys' fees,
incurred or paid in exercising any right, power or remedy conferred by this
Note, or in the enforcement thereof. If the undersigned are more than one (1),
the liability of the undersigned hereon is joint and several, and the term
"undersigned", as used herein, means any one or more of them.
The undersigned and all indorsers authorize any attorney at law, including
an attorney engaged by the holder, to appear in any court of record in the
State of Ohio or any other State or Territory of the United States, after the
indebtedness evidenced hereby, or any part thereof, becomes due and waive the
issuance and service of process and confess judgment against any one or more
than one of the undersigned and all indorsers in favor of the holder, for the
amount then appearing due, together with costs of suit and, thereupon, to
release all errors and waive all rights of appeal and stay of execution, but no
such judgment or judgments against any one of the undersigned shall be a bar to
a subsequent judgment or judgments against any one or more than one of such
persons against whom judgment has not been obtained hereon. This warrant of
attorney to confess judgment is a joint and several warrant of attorney. The
foregoing warrant of attorney shall survive any judgment; and if any judgment
be vacated for any reason, the holder hereof nevertheless may hereafter use the
foregoing warrant of attorney to obtain an additional judgment or judgments
against the undersigned and all indorsers or any one or more of them. The
undersigned and all indorsers hereby expressly waive any conflict of interest
that the holder's attorney may have in confessing such judgment against such
parties and expressly consent to the confessing attorney receiving a legal fee
from the holder for confessing such judgment against such parties.
If the undersigned or any indorser or guarantor hereof would have the
right to rescind the loan evidenced by this Note pursuant to a right so to do
under the Truth-in-Lending Act because one or more mortgages now exist in favor
of the holder hereof covering the principal home or homes of the undersigned or
any indorser or guarantor hereof, the holder's acceptance of this Note shall
constitute a waiver of its right under any such mortgage to treat such
principal home or homes as security for the repayment or guaranty of this Note
except for the principal home or homes described in the Mortgage dated
N/A
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THE PROVISIONS OF THIS NOTE SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF OHIO. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR THE HOLDER
TO EXTEND CREDIT TO BORROWER, AND AFTER HAVING THE OPPORTUNITY TO CONSULT
COUNSEL, THE UNDERSIGNED AND ALL INDORSERS HEREBY EXPRESSLY WAIVE THE RIGHT TO
TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATED TO THIS NOTE OR ARISING IN
ANY WAY FROM ANY INDEBTEDNESS OR OTHER TRANSACTIONS INVOLVING THE HOLDER AND
THE UNDERSIGNED. THE UNDERSIGNED HEREBY DESIGNATE(S) ALL COURTS OF RECORD
SITTING IN CINCINNATI, OHIO AND HAVING JURISDICTION OVER THE SUBJECT MATTER,
STATE AND FEDERAL, AS FORUMS WHERE ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF
OR ARISING FROM OR OUT OF THIS NOTE, ITS MAKING, VALIDITY OR PERFORMANCE, MAY
BE PROSECUTED AS TO ALL PARTIES, THEIR SUCCESSORS AND ASSIGNS, AND BY THE
FOREGOING DESIGNATION THE UNDERSIGNED CONSENT(S) TO THE JURISDICTION AND VENUE
OF SUCH COURTS.
WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE, AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT
OR ANY OTHER CAUSE.
DURAMED PHARMACEUTICALS, INC.
By: /s/ E. Thomas Arington
President
Address: 7155 East Kemper Road
Cincinnati, Ohio 45249
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