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EXHIBIT 2.6
EXHIBIT E TO MERGER AGREEMENT
PROMISSORY NOTE
$__________ ________________, ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned, THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP, INC., a
California corporation (hereinafter referred to as ("Maker"), promises to pay
to the order of) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP, GROUP, LLC., a California limited
liability company (together with any subsequent holder(s) hereof, being
hereinafter referred to collectively as "Holder"), pursuant to the terms
hereinafter set forth, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as Holder may designate to Maker in
writing from time to time, the principal sum of ____________________
(__________), together with interest thereon at the rate hereinafter set forth,
in lawful money of the United States of America.
The entire principal balance hereof, and all accrued interest
hereunder, shall be due and payable on the closing date of the initial public
offering of the common stock of 800 Travel Systems, Inc. a Delaware Corporation
("Travel Systems").
Interest on the amount from time to time outstanding hereunder shall
accrue at a fluctuating per annum rate of interest equal to the "Prime Rate,"
as hereinafter defined. Interest shall be computed on the daily outstanding
principal balance hereunder on a 365-day year simple interest basis.
There is no cure period that will be applicable to the payment of
principal, interest, or other amount now or hereafter due under this Note.
As used herein, the term "Prime Rate.' shall mean the rate from time
to time published in The Wall Street Journal as the Prime Rate under the column
"Money Rates," and set forth as "Prime Rate: X percent. The base rate on
corporate loans posted by at least 75% of the nations 30 largest banks," or in
such other column as the name thereof may change from time to time. If at any
time, or from time to time, the Prime Rate increases or decreases, then the
rate of interest hereunder shall be correspondingly increased or decreased
effective on the day on which any such increase or decrease of the Prime Rate
is published in The Wall Street Journal. In the event that The Wall Street
Journal, during the term hereof, shall abolish or abandon the practice of
publishing such Prime Rate, or should the same become unascertainable, Holder
shall designate a comparable reference rate which shall be deemed to be the
"Prime Rate."
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It is the intention of Maker and Holder to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated hereby
would be usurious under applicable law, then, in that event, notwithstanding
anything to the contrary in any agreement entered into in connection with this
Note, it is agreed as follows: (i) the aggregate of all consideration which
constitutes interest under applicable law that is taken, reserved, contracted
for, charged or received under this Note or under any of the other aforesaid
agreements or otherwise in connection with this Note shall under no
circumstances exceed the maximum amount of interest allowed by applicable law,
and any excess shall be credited on this Note by the holder hereof (or, if this
Note shall have been paid in full, refunded to Maker); and (ii) in the event
that maturity of this Note is accelerated by reason of an election by the
holder hereof resulting from any default hereunder or otherwise, or in the
event of any required or permitted prepayment, then such consideration that
constitutes interest may never include more than the maximum amount allowed by
applicable law, and excess interest, if any, provided for in this Note or
otherwise shall be canceled automatically as of the date of such acceleration
or prepayment and, if thereforeto prepaid, shall be credited on this Note (or
if this Note shall have been paid in full, refunded to Maker). In determining
whether the amount of interest charged and paid might otherwise exceed the
limit prescribed by law, Maker and Holder intend and agree that interest shall
be computed upon the assumption that this Note will be paid according to the
agreed terms.
As of the date hereof, the Prime Rate is __________ percent (____%)
and, consequently, the rate of interest hereunder as of the date hereof is
percent (____%).
Unless otherwise specified below, this Note shall be construed under
and governed by the internal laws of the State of Florida (and applicable
federal law).
This Note may be prepaid in whole or in part at any time or from time
to time, without penalty, premium or fee.
The happening of any of the following events or conditions, whether
voluntarily or involuntarily, shall constitute an "Event of Default" under this
Note:
(i) Maker shall fail to pay, when due, any payment of principal or
interest hereunder; or
(ii) Maker shall cease to operate as a going concern, shall
liquidate or initiate dissolution proceedings; or
(iii) The appointment of a receiver for all or any part of the
property of, assignment for the benefit of
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creditors by, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Maker.
Upon and after the occurrence of an Event of Default, Holder shall
have the right at any time to declare all or any portion of the amounts due
hereunder to be due and payable immediately, without presentment, demand,
protest, notice of protest, or other notice of dishonor of any kind, all of
which are hereby expressly waived by Maker.
Time is of the essence of this Note. In the event this Note, or any
part thereof, is collected by or through an attorney-at-law, Maker agrees to
pay all costs of collection including, but not limited reasonable attorney's
fees actually incurred by Holder.
Presentment for payment, demand, protest and notice of demand, protest
and non-payment and all other notices are hereby waived by Maker. No failure to
demand payment of the debt evidenced hereby for any reason whatsoever, no
acceptance of any partial payment, nor any indulgences granted from time to
time shall be construed (i) as a novation of this Note or as a reinstatement of
the indebtedness evidenced hereby or as a waiver of such right to demand
payment or of the right of Holder thereafter to insist upon strict compliance
with the terms of this Note, or (ii) to prevent the exercise of such demand for
payment or any other right granted hereunder or by the laws of the State of
Florida; and Maker hereby expressly waives the benefit of any statute or rule
of law or equity now provided, or which may hereafter be provided, which would
produce a result contrary to or in conflict with the foregoing. No extension of
the time for the payment of this Note or any installment due hereunder, made by
agreement with any person now or hereafter liable for the payment of this Note
shall operate to release, discharge, modify, change or affect the original
liability of Maker under this Note, either in whole or in part unless Holder
agrees otherwise in writing. This Note may not be changed orally, but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
This Note is secured by that certain Security and Pledge Agreement of
even date among Maker, Holder and 800 Travel Systems, Inc. ("Travel Systems"),
a Delaware corporation.
Notwithstanding any provisions to the contrary herein contained, it is
agreed and understood that this Note, and the amounts now or hereafter due
hereunder, are subject to the offset rights as described in Article XV of that
certain Amended and Restated Agreement and Plan of Merger dated November 11,
1996 among Maker, Holder and Travel Systems.
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As used herein, the terms "Maker" and "Holder" shall be deemed to
include their respective heirs, successors, legal representatives and assigns,
whether by voluntary action of the parties or by operation of law.
This Note has been executed by Maker and delivered originally in
escrow pursuant to the terms of that certain Amended and Restated Agreement and
Plan of Merger of even date herewith between Holder, Maker, and Travel
Systems, and the terms of the Escrow Agreement (as therein defined). The
release of this Note from escrow, and Maker's obligations hereunder, are
specifically subject to the terms of such Agreement and the Escrow Agreement.
IN WITNESS WHEREOF, Maker has executed this Note under seal as of the
date first above written.
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP, INC.
By:
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Name:
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Title:
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