1
EXHIBIT 10.9
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION.
CONVERTIBLE DEBENTURE
DUE DECEMBER 1, 2000
$1,288,000 DECEMBER 19, 1994
BOSTON, MASSACHUSETTS
FOR VALUE RECEIVED, XXXXX-XXXXXXX & ASSOCIATES, INC., a Florida
corporation (the "Maker"), promises to pay to Advent Industrial II L.P.
(hereinafter called the "Payee"), or to its order, at its address c/o TA
Associates, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000, the
principal sum of One Million Two Hundred Eighty-eight Thousand Dollars
($1,288,000), together with interest in arrears on the unpaid principal balance
from time to time outstanding from the date hereof until the entire principal
amount due hereunder is paid in full at the rates provided in that certain
Debenture Purchase Agreement of even date herewith by and between the Payee,
certain other entities and the Maker (the "Agreement"). Principal shall be
paid, and interest shall accrue and be paid, as provided in the Agreement.
This Debenture is one of the Debentures referred to in and issued
pursuant to the Agreement, and is entitled to the benefits of the terms and
provisions of the Agreement, including without limitation the terms and
provisions relating to payment and conversion of the Debentures. The
outstanding principal amount of this Debenture shall be paid in full as
provided in the Agreement and may only be prepaid in accordance with the
provisions of the Agreement.
Upon the occurrence of an Event of Default as defined in the
Agreement, the Lenders (as such parties are defined in the Agreement) may
declare the entire unpaid principal balance hereunder and any accrued and
unpaid interest thereon immediately due and payable without notice, demand,
presentment or protest and may exercise any of its rights under the Agreement.
In the event that the Payee or any subsequent holder of this Debenture shall
exercise or endeavor to exercise any of its remedies hereunder or under the
Agreement, the Maker shall pay on demand all reasonable costs and expenses
incurred in connection therewith including, without limitation, reasonable
attorneys' fees, and the Payee may take judgment for all such amounts in
addition to all other sums due hereunder.
The Maker, to the extent permitted by applicable law, waives
presentment for payment, protest and demand, and notice of protest, demand
and/or dishonor and nonpayment of this Debenture, notice of any Event of
Default under the Agreement except as specifically provided therein, and all
other notices or demands otherwise required by law that the Maker may lawfully
waive. No unilateral consent or waiver by the Payee with respect to any action
or failure to act which, without consent, would constitute a breach of any
provision of this Debenture or the
2
Agreement shall be valid and binding unless in writing and signed by a majority
in interest of the Lenders as provided in accordance with Section 14.1 of the
Agreement.
The rights and obligations of the Maker and all provisions hereof
shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts.
All agreements between the Maker and the Payee are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Payee for the use,
forbearance or detention of the indebtedness evidenced hereby exceed the
maximum permissible under applicable law. As used herein, the term "applicable
law" shall mean the law in effect as of the date hereof, provided, however,
that in the event there is a change in the law which results in a higher
permissible rate of interest, then this Debenture shall be governed by such new
law as of its effective date. If, from any circumstance whatsoever, fulfillment
of any provision hereof or the Agreement at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by law, then the obligation to be fulfilled shall automatically be
reduced to the limit of such validity, and if from any circumstances the Payee
should ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal balance evidenced hereby and not to the payment of
interest. This provision shall control every other provision of all agreements
between the Maker and the Payee.
IN WITNESS WHEREOF, the Maker has caused this Debenture to be
executed by its duly authorized representative as of the day and year first
above written.
WITNESS: XXXXX-XXXXXXX & ASSOCIATES, INC.
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxx
--------------------------- -----------------------------
Xxxxx Xxxxxxx
Name: Xxxxxxx Xxxxx
---------------------------
Title: President
---------------------------
- 2 -