Exhibit 9
TENDER OFFER NOTE
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$42,000,000.00 New York, New York
December 30, 1997
FOR VALUE RECEIVED, the undersigned, ZEPHYROS
ACQUISITION CORPORATION, as Borrower ("Borrower"), hereby
unconditionally promises to pay to the order of XXXXXX
FINANCIAL, INC., a Delaware corporation ("Lender"), at the
office of Agent (as defined in the Loan Agreement referred to
below) at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at
such other place as the holder of this Tender Offer Note may from
time to time designate in writing, in lawful money of the United
States of America and in immediately available funds, the
principal sum of FORTY-TWO MILLION DOLLARS AND NO CENTS
($42,000,000.00), or, if less, the aggregate unpaid principal
amount of all advances made to Borrower by Lenders under the
Tender Offer Loan Agreement pursuant to subsection 2.1(A) of the
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Loan Agreement (as hereinafter defined), at such times as are
specified in and in accordance with the provisions of the Loan
Agreement.
This Tender Offer Note is the Tender Offer Note
referred to in, was executed and delivered pursuant to, and
evidences obligations of Borrower under, that certain Tender
Offer Loan Agreement dated as of December 30, 1997, by and among
Borrower, Xxxx International Holdings, Inc., the lending
institutions listed therein and Agent (as the same may be
amended, restated, modified or supplemented and in effect from
time to time, the "Loan Agreement"), to which reference is hereby
made for a statement of the terms and conditions under which the
loan evidenced hereby is made and is to be repaid and for a
statement of Agent's and Xxxxxxx' remedies upon the occurrence of
an Event of Default (as defined therein). The Loan Agreement is
incorporated herein by reference in its entirety. Capitalized
terms used but not otherwise defined herein are used in this
Tender Offer Note as defined in the Loan Agreement.
Borrower further promises to pay interest on the unpaid
principal amount of each advance from time to time outstanding
under the Tender Offer Loan from the date of such advance until
payment in full thereof at the rate from time to time applicable
to the Tender Offer Loan as determined in accordance with the
Loan Agreement; provided, that upon the occurrence and during the
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continuance of an Event of Default, as provided in the Loan
Agreement, Borrower shall pay to the Agent, for the benefit of
Lenders, interest on the principal balance of the Tender Offer
Loan from time to time outstanding at the rate of interest
applicable upon the occurrence and during the continuance of an
Event of Default as determined in accordance with the Loan
Agreement.
Interest charges shall be computed as set forth in the
Loan Agreement and shall be payable at the rates, at the times
and from the dates specified in the Loan Agreement, on the date
of any prepayment hereof, at maturity, whether due by
acceleration or otherwise, and as otherwise provided in the Loan
Agreement. From and after the date when the principal balance
hereof becomes due and payable, whether by acceleration or
otherwise, interest hereon shall be payable on demand.
This Tender Offer Note is secured pursuant to the Loan
Agreement and the Loan Documents referred to therein, and
reference is made thereto for a statement of the terms and
conditions of such security.
If a payment hereunder becomes due and payable
hereunder other than on a Business Day, the due date thereof
shall be extended to the next succeeding Business Day, and
interest shall be payable thereon during such extension at the
applicable rate specified in the Loan Agreement. Credit for any
payments made by Borrower shall, for the purpose of computing
interest earned by Xxxxxxx, be given in accordance with the Loan
Agreement. In no contingency or event whatsoever shall interest
charged hereunder, however such interest may be characterized or
computed, exceed the highest rate permissible under any law which
a court of competent jurisdiction shall, in a final
determination, deem applicable hereto. In the event that such a
court determines that Xxxxxxx have received interest hereunder in
excess of the highest rate applicable hereto, such excess shall
be applied in accordance with the terms of the Loan Agreement.
Agent shall have the continuing exclusive right to
apply and to reapply any and all payments hereunder against the
Obligations in such manner, consistent with the terms of the Loan
Agreement, as Agent deems advisable.
Borrower hereby waives demand, presentment and protest
and notice of demand, presentment, protest and nonpayment.
Xxxxxxxx also waives all rights to notice and hearing of any kind
upon the occurrence and continuance of an Event of Default prior
to the exercise by Xxxxxxx, or Agent on behalf of Lenders, of its
right to repossess the Collateral without judicial process or to
replevy, attach or levy upon the Collateral without notice or
hearing.
In addition to, and not in limitation of, the foregoing
and the provisions of the Loan Agreement, the undersigned further
agrees, subject only to any limitation imposed by applicable law,
to pay all expenses, including attorneys' fees and legal
expenses, incurred by the holder of this Tender Offer Note in
endeavoring to collect any amounts payable hereunder which are
not paid when due, whether by acceleration or otherwise.
THIS TENDER OFFER NOTE, INCLUDING PROVISIONS REGARDING
THE PAYMENT OF INTEREST, SHALL BE DEEMED TO HAVE BEEN DELIVERED
AND MADE AT NEW YORK, NEW YORK AND SHALL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW
PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK.
Whenever possible each provision of this Tender Offer
Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Tender
Offer Note shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Tender Offer
Note. Whenever in this Tender Offer Note reference is made to
Agent, Lenders or Borrower, such reference shall be deemed to
include, as applicable, a reference to their respective permitted
successors and assigns and, in the case of any Lender, any
financial institutions to which it has sold or assigned all or
any part of its commitment to make the Tender Offer Loan as
permitted under the Loan Agreement. The provisions of this
Tender Offer Note shall be binding upon and shall inure to the
benefit of such permitted successors and assigns. Xxxxxxxx's
successors and assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for Borrower.
ZEPHYROS ACQUISITION CORPORATION
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Chairman of the Board of Directors
