Exhibit 10.31
AMENDED AND RESTATED INITIAL LOAN NOTE
$7,200,000.00
ROSEMONT, ILLINOIS NOVEMBER 15, 2000
FOR VALUE RECEIVED, the undersigned, AROUND THE WORLD TRAVEL, INC., a
Florida corporation ("Maker"), hereby promises to pay to the order of GALILEO
INTERNATIONAL, L.L.C., a Delaware limited liability company ("Lender"), the
principal sum of SEVEN MILLION TWO HUNDRED THOUSAND AND NO/100THS DOLLARS
($7,200,000.00), or, if less, the aggregate unpaid amount of the Initial Loan
made by Lender pursuant to and in accordance with the applicable provisions of
that certain Amended and Restated Loan Agreement as of November _, 2000 (as the
same may be amended, modified, supplemented or restated from time to time, the
"Loan Agreement"), between Maker and Lender, together with its successors and
assigns, at the office of Lender at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000, or at such other place as the holder hereof may appoint, plus
interest thereon as set forth below.
This Amended and Restated Initial Loan Note (this "Note") is the Initial
Loan Note referred to in the Loan Agreement and is delivered by Maker to Lender
pursuant to and in accordance with the applicable provisions of the Loan
Agreement. All capitalized terms used but not elsewhere defined herein shall
have the respective meanings ascribed to such terms in the Loan Agreement.
The Principal Balance of this Note shall bear interest at the per annum
rate of interest set forth in subsection 2.4.1 of the Loan Agreement.
Accrued and unpaid interest on, and the Principal Balance of, this Note
shall be paid in the manner set forth in Section 2.5 of the Loan Agreement.
Interest shall be: (i) computed on the basis of a year consisting of 360
days and (ii) charged for the actual number of days during the period for which
interest is being charged.
During a Default Rate Period, the Principal Balance of this Note shall bear
interest at the Default Rate, which interest at such Default Rate shall be paid
by Maker to Lender immediately upon demand.
Subject to the provisions of Section 8.2 of the Loan Agreement, at the
election of the holder hereof, upon the occurrence of an Event of Default,
without further notice or demand, the Principal Balance of this Note, and all
accrued and unpaid interest thereon, shall be and become immediately due and
payable in full. Failure to exercise this option shall not constitute a waiver
of the right to exercise the same in the event of any subsequent Event of
Default, and such failure shall not be deemed to establish a custom or course of
dealing or performance between Maker and Lender.
This Note shall or may be prepaid, in whole but not in part, at the times
and in accordance with Section 2.7 of the Loan Agreement.
All funds received by Xxxxxx during the existence of an Event of Default
shall be applied in the manner set forth in Section 8.4 of the Loan Agreement.
All payments to be made by Maker pursuant to this Note shall be made in
accordance with the instructions therefor set forth in the Loan Agreement.
Payment shall not be deemed to have been received by Lender until Lender is in
receipt of Good Funds.
Notwithstanding any provision to the contrary contained herein or in any
other Loan Instrument, Lender shall not collect a rate of interest on any
obligation or liability due and owing by Maker to Lender in excess of the
maximum contract rate of interest permitted by applicable law. If any such
excess interest is provided for or determined by a court of competent
jurisdiction to have been provided for in this Note or any other Loan
Instrument, then in such event the provisions of subsection 2,4.4 of the Loan
Agreement shall apply.
If any suit or action is instituted or attorneys are employed to collect
this Note or any part thereof, Maker promises and agrees to pay all costs of
collection, including all court costs and reasonable attorneys' fees.
Except as provided in the Loan Agreement, Maker hereby waives presentment
for payment, protest and demand and notice of protest, demand, dishonor and
nonpayment of this Note, and expressly agrees that this Note, or any payment
hereunder, may be extended from time to time before, at or after maturity,
without in any way affecting the liability of Maker hereunder or any guarantor
hereof.
Maker hereby agrees that all actions or proceedings initiated by Maker and
arising directly or indirectly out of this Note or any or all of the other Loan
Instruments shall be litigated in the Circuit Court of Cook County, Illinois or
in the United States District Court for the Northern District of Illinois, or,
if Lender initiates such action, in addition to the foregoing courts, any court
in which Lender shall initiate or to which Lender shall remove such action, to
the extent such court otherwise has jurisdiction. Maker hereby expressly submits
and consents in advance to such jurisdiction in any action or proceeding
commenced in or removed by Lender to any of such courts, and hereby waives
personal service of the summons and complaint, or other process or papers issued
therein, and agrees that service of such summons and complaint or other process
or papers may be made by registered or certified mail addressed to Maker at the
address to which notices arc to be sent pursuant to Section 12.1 of the Loan
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Agreement. Maker waives any claim that either the Circuit Court of Cook County,
Illinois or the United States District Court for the Northern District of
Illinois is an inconvenient forum or an improper forum based on lack of venue.
Should Maker, after being so served, fail to appear or answer to any summons,
complaint, process or papers so served within the period of time prescribed by
law after the mailing thereof, Maker shall be deemed in default and an order
and/or judgment may be entered by Lender against Maker as demanded or prayed for
in such summons, complaint, process or papers. The exclusive choice of forum for
Maker set forth in this paragraph shall not be deemed to preclude the
enforcement, by Xxxxxx, of any judgment obtained in any other forum or the
taking, by Xxxxxx, of any action to enforce the same in any other appropriate
jurisdiction, and Maker hereby waives the right to collaterally attack any such
judgment or action.
This Note shall be construed in accordance with and governed by the laws
and decisions of the State of Illinois. All funds disbursed to or for the
benefit of Maker will be deemed to have been disbursed in Cook County, Illinois.
Maker acknowledges and agrees that any controversy which may arise under
this Note would be based upon difficult and complex issues and therefore, Xxxxx
agrees that any court proceeding arising out of any such controversy will be
tried in a court of competent jurisdiction by a judge sitting without a jury.
This Note may not be changed or amended orally, but only by an instrument
in writing signed by the party against whom enforcement of the change or
amendment is sought.
This Note shall be binding upon Maker and upon Maker's successors and
assigns, and shall inure to the benefit of the successors and permitted assigns
of Lender.
In the event that any provision hereof shall be deemed to be invalid by
reason of the operation of any law, or by reason of the interpretation placed
thereon by any court or any Governmental Body, as applicable, the validity,
legality and enforceability of the remaining terms and provisions of this Note
shall not in any way be affected or impaired thereby, all of which shall remain
in full force and effect, and the affected term or provision shall be modified
to the minimum extent permitted by law so as to achieve most fully the intention
of this Note.
Time for the performance of Maker's obligations under this Note is of the
essence.
This Note is entitled to the benefit of certain collateral security, all as
more fully set forth in the Loan Agreement.
The Note (i) is issued in substitution for that certain Initial Loan Note
dated December 23, 1999 (the "Initial Note") in the original principal amount of
$7,200,000 by Maker to Lender, (ii) evidences the Initial Loan and (iii) does
not constitute a novation of the Indebtedness for Borrowed money evidenced by
the Initial Note.
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IN WITNESS WHEREOF, this Note has been executed and delivered by Maker by its
duly authorized officer on the date first set forth above.
AROUND THE WORLD TRAVEL, INC.,
a Florida corporation
State of New York
County of New York
By: /s/ Xxxxx Xx. Xxxxx
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Xxxxx Xx. Xxxxx
Chief Executive Officer
On this l5th day of November, 2000, XXXXX XX. XXXXX (print name of above
signatory) appeared before me and, having been duly sworn by me, signed the Note
in my presence.
Notary Seal
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My commission expires on
