Promissory Note
$241,000.00 Dated: October 12, 2000
For value received, Lorilei Communications, Inc., a Florida corporation
(hereinafter referred to as the "Maker"), promises to pay to the order of
AmeriNet Group.com, Inc., a publicly held Delaware corporation with a class of
securities registered under Section 12(g) of the Exchange Act and a current
principle address at The Crystal Corporate Center; 2500 North Military Trail,
Suite 225-C; Boca Raton, Florida 33431 (the "Payee" or "AmeriNet"), the
principal sum of $241,000.00 heretofore loaned by AmeriNet to the Maker as
described in exhibit 0.1 annexed hereto and made a part hereof, with interest at
the annualized rate of 8%, on demand at any time after December 31, 2000,
subject to acceleration or forfeiture, as hereinafter described, in lawful money
of the United States at the Payee's address or at such other address as may be
designated by the Payee.
Terms
1. Forfeiture, Prepayment & Acceleration
(a) This Note may be prepaid by the Maker at any time without penalty.
(b) The Maker and any endorsers of this Note agree to waive demand, notice
of non-payment, and protest, and in the event suit shall be brought for
the collection hereof or the same has to be collected by the demand of
an attorney, to pay reasonable attorney's fees for making such
collection.
2. Collateral
(a) This Note is secured by all of the Assets described in exhibit 2(a)
annexed hereto and made a part hereof (the"Collateral"), none of which
may be transferred, conveyed, hypothecated or encumbered in any manner
without the payee's prior written consent until this Note is fully
paid.
(b) The Maker has executed UCC Forms 1, as required to perfect the security
interest established hereby in the State of Florida.
3. Representations & Warranties
The Maker hereby represents, warrants and covenants that:
(a) No material adverse change in the business or the financial condition
of the Maker since the date of the latest financial information
furnished by the Maker to AmeriNet has occurred, other than as
heretofore disclosed to AmeriNet's chief financial officer;
(b) All acts, conditions and things (including, without limitation, the
making of any required filings, recordings or registrations) required
to be done or performed and to have happened pursuant to this Note have
been done and performed;
(c) All corporate, and legal proceedings and all documents and instruments
in connection with the authorization of the this Note, this Note and
all related instruments and ancillary documentation thereto will be
delivered to AmeriNet and its legal counsel concurrently with the
execution of this Note and AmeriNet will be immediately provided with
all information and copies of all other related documents and
instruments, including records of corporate proceedings, which AmeriNet
and its legal counsel may reasonably have requested in connection
therewith, such documents and instruments, where appropriate, to be
certified by proper corporate, or governmental authorities; and
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(d) AmeriNet will be immediately provided with the duly executed originals
of the Forms UCC-1 and this Note and all related ancillary
documentation thereto and delivered in connection therewith, and copies
or originals of all other documents, agreements and instruments
relating to any aspect of the transactions required hereby to including
evidence of insurance coverage of the Collateral required by AmeriNet.
4. Mandatory Prepayment in the Event of Loss; Loan Repayment.
(a) The Maker shall keep all of the Collateral fully insured under all risk
insurance policies acceptable in form and substance to the Payee, such
insurance to be in an amount adequate to fully replace all the
Collateral in the event of its damage or loss.
(b) In the event that the Collateral shall be lost, stolen, destroyed,
damaged or rendered unfit for normal use, or in the event of any
condemnation, confiscation, seizure, or requisition of title to or use
of the Collateral, the Maker agrees to immediately make available any
insurance proceeds for the exclusive purpose of replacing the
Collateral; if, however, the Maker elects not to repair or replace the
Collateral within 10 days of the Maker's receipt of the insurance
proceeds, all insurance proceeds shall be applied to a then mandatory
prepayment of this Note.
5. Place of Payments.
Payment of principal, interest and other sums due or to become due with
respect to this Note are to be made at the office of principal executive offices
of AmeriNet in Boca Raton, Florida, or such other place as AmeriNet shall
designate to the Maker in writing, in lawful money of the United States of
America in immediately available funds.
6. Late Payments & Other Charges.
(a) If any amount due with respect to the payment of this Note is not paid
when the same shall be due, the Maker will, unless excused, on a
specific case by case basis, in writing by AmeriNet, pay interest on
any such overdue amount at the highest rate permitted by law until the
date such amount is paid.
(b) The Maker shall pay or cause to be paid, in addition to all other
amounts payable hereunder:
(1) Premiums for insurance required to be obtained in connection with
the Loans and the Collateral;
(2) Fees paid for filing documents in public offices in connection
with the transactions contemplated hereby; and
(3) Actual expenditures, including reasonable attorney's fees, for
proceedings to collect this Note or to enforce, preserve and
protect the Collateral (as such term is defined herein) and the
rights and interest of AmeriNet therein.
7. Rights and Powers with Respect to the Collateral.
The Maker hereby authorizes AmeriNet to do every act and thing in the
name of the Maker which AmeriNet may deem advisable to enforce effectively its
rights and interest in and to the Collateral and the maker hereby irrevocably
appoints AmeriNet its true and lawful attorney, with full power of substitution
and revocation, to demand, enforce, collect, receive, receipt and give releases
for any funds due or to become due under or arising out of or with respect to,
any of the Collateral and to endorse all checks and other instruments, and to do
and take all such other actions relating to any of the Collateral, to file any
claims or institute any proceedings with respect to any of the foregoing which
AmeriNet deems necessary to advisable and to compromise any such demand, claim
or action.
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8. Assignments, Encumbrances, Transfers.
(a) The Maker will not, without the prior consent of AmeriNet, assign or
transfer any of its rights to or sell, dispose or otherwise grant any
interest in or to any of the Collateral, or create, incur or suffer to
exist any lien, charge, mortgage, security interest or encumbrances upon
any of the Collateral, except the lien of AmeriNet created by this Note;
provided, however, that Maker may sell, transfer or otherwise dispose of
its ownership interest or grant a lien, charge, mortgage, security interest
to encumbrance in and to the Collateral if such sale, transfer, or other
disposition or grant of lien, charge, mortgage, security interest or
encumbrance is expressly made subject and subordinate to AmeriNet's first
priority security interest as created by this Note and the Maker's buyer,
transferee of lien holder acknowledges AmeriNet's first priority security
interest in and to the Collateral by executing and delivering to AmeriNet
such acknowledgment, provided that, AmeriNet shall have previously given
its consent and approval as to such buyer or transferee, which consent and
approval may be withheld for any reason.
(b) In the event of any conveyance, foreclosure or other disposition of
collateral without AmeriNet's consent, then the entire principal balance
under all Loans and guarantees, together with all accrued interest shall be
immediately due and payable.
9. Further Representations and Warranties.
The Maker hereby represents, warrants and covenants that:
(a) As of the date of this Note it is not insolvent within the meaning of
applicable state and federal law;
(b) It is a corporation duly organized and validly existing in good standing
under the laws of the State of Florida and that it has full power and
authority to enter into this Note, respectively, and to consummate the
transactions contemplated hereby and thereby;
(c) This Note, the assignments and the granting of the security interests
provided for herein have been duly authorized by all necessary corporate
action and hereby and thereby constitute legal, valid and binding
obligations of the Maker, enforceable in accordance with their respective
terms;
(d) The making and performance by the Maker of the obligations undertaken under
this Note, and any related documents and the transactions contemplated
hereby and thereby do not contravene any provisions of law applicable to it
and do not conflict or are not inconsistent with, and will not result (with
or without the giving of notice or both) in a breach of or constitute a
default or require any consent under, or result in the creation of any
lien, charge or encumbrance upon the Collateral pursuant to the terms of
any credit agreement, indenture, mortgage, purchase agreement, deed of
trust, security agreement, lease guarantee or other instrument to which it
is a party or by which it may be bound or to which its properties may be
subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or
other fees, bonds, permits or certificates which were or may be required to
be paid or obtained in connection with the acquisition of the Collateral
will have been, or when due will be, paid in full or obtained;
(f) The Maker has good, valid and marketable title to the Collateral free and
clear of all liens, claims and encumbrances, other than a lien in favor of
Yankees pursuant to the terms of the revolving loan agreement between
AmeriNet and Yankees, a copy of which has been filed with the Securities
and Exchange Commission, and, the specific liens and encumbrances disclosed
in exhibit 9(f) annexed hereto and made a part hereof (the "Pre-existing
Liens");
(g) At least concurrently with the date of this Note AmeriNet will have a
perfected continuing first priority security interest in and to all the
Collateral, except with reference to the Pre-existing Liens, in which case
the continuing security interest shall be inferior only to the Pre-existing
Liens; and
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(h) The Maker has not entered into any understanding or agreement, (oral or
in writing) relating to the transactions contemplated herein, or any
other transactions contemplated or permitted by this Note with any
person or entity which understanding, agreement or other writing would,
in the determination of AmeriNet, affect the Collateral in any manner
whatsoever or any of the rights or interests of AmeriNet with respect
thereto.
10. Default; Remedies.
In the event:
(a) Of a failure of the Maker to pay any amount when due hereunder for a
period of 10 days after written notice by AmeriNet to the Maker;
(b) Of a failure by the Maker to perform any agreement or undertaking under
this Note or any other agreement or document given to evidence or
secure any of this Note;
(c) Any warranty, representation, covenant or agreement made by the Maker
to AmeriNet under this Note relating to any related document or this
Note proves to be incorrect or untrue in any material respect at the
time when made;
(d) The Maker shall become insolvent or cease doing business as a going
concern or become unable to pay its debts generally as such debts
become due, or a petition or order for relief under the bankruptcy laws
or insolvency laws or for reorganization, composition, adjustment, or
other relief of debtors under any law is filed by or against the Maker
and such petition is not dismissed within 30 days, or the Maker makes
an assignment for the benefit of creditors, or a receiver or liquidator
is appointed for the Maker, or a court of competent jurisdiction orders
the winding up or liquidation of the affairs of the Maker;
(e) The Maker is dissolved;
(f) A major shareholder's interest in the corporation shall be conveyed,
foreclosed upon or transferred in any manner, without the Payee's prior
consent; or
(g) Any person, entity or governmental instrumentality shall make a claim
against the Maker or any part of the Collateral;
(each of the events referred to in the foregoing Subsections (a) through (g)
being hereinafter referred to as a "Default"), then, in any such event, AmeriNet
may accelerate the full amount of this Note in which event such amount will
become immediately due and payable by the Maker without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived,
and AmeriNet may pursue all of the rights and remedies with respect to the
Collateral accruing to AmeriNet hereunder or by operation of law as a secured
creditor under the Uniform Commercial Code or other applicable law and all such
available rights and remedies, to the full extent permitted by the law, shall be
cumulative and not exclusive.
11. Application of Proceeds.
Upon enforcement of this Note, all funds received upon the foreclosure
and liquidation of the Collateral shall be applied by AmeriNet as follows:
(a) To the payment of all costs, expenses, liabilities and compensation of
AmeriNet (including fees and expenses of its agents and legal counsel)
incurred or accrued in connection with any action or proceeding brought
by AmeriNet or in connection with the maintenance, sale or other
disposition of the Collateral or any portion thereof.
(b) To the payments of all amounts then due and payable on this Note.
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(c) To the payment of any surplus then remaining to the Maker or other
person legally entitled thereto.
12. Receipt of Funds by the Maker.
Notwithstanding the granting to AmeriNet of a first priority security
interest in and to the Collateral, and a first lien on the capital stock of the
Maker, if, at any time while this Note remains unsatisfied, the Maker shall
receive any amount representing funds due, or proceeds of, any of the
Collateral, such sums shall be held by the Maker in trust for AmeriNet and shall
be immediately paid by the Maker to AmeriNet in the form so received, together
with any necessary endorsement thereon.
13. Further Assurances.
The Maker agrees to execute and deliver to AmeriNet, or cause to be
executed and delivered to AmeriNet, such further instruments and documents as
may be reasonably requested by AmeriNet to carry out fully the intent and
accomplish the purposes of this Note, and the transactions referred to herein
and therein, and to protect and maintain the first priority security interest of
AmeriNet in and to the Collateral.
14. Financials.
The Maker hereby represents, warrants, and covenants to AmeriNet that
it will cause to be delivered to AmeriNet as soon as practicable:
(a) but in any event within 90 days after the end of each fiscal
year, statements of earnings and retained earnings and changes
in its financial position for such year, and its balance sheet
at the end to such fiscal year, setting forth in each case in
comparative form the corresponding figures of the previous
annual audit, all in reasonable detail and certified by, and
accompanied by a report or opinion of, independent certified
public accountants of recognized standing acceptable to
AmeriNet, and
(b) within 45 days after the end of each fiscal quarter, its
statements of earnings and retained earnings and changes in
financial position for such fiscal quarter, and its balance
sheet at the end of such fiscal quarter,
setting forth in each case in comparative form the corresponding
figures of the previous quarterly audit, all in reasonable detail and
prepared in accordance with generally accepted accounting principles
and certified by the Maker's Chief Financial Officer.
18. Miscellaneous.
(a) No Waiver; Cumulative Remedies.
(1) No failure or delay on the part of AmeriNet in exercising any
right, power or privilege hereunder or under this Note shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder or
thereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
(2) No right or remedy in this Note is intended to be exclusive
but each shall be cumulative and in addition to any given
AmeriNet at law or in equity; and the exercise by AmeriNet of
any one or more of such remedies shall not preclude the
simultaneous or later exercise by AmeriNet of any or all such
other remedies. No express or implied waiver by AmeriNet of
any future or subsequent Default.
(3) To the extend permitted by law, the Maker waives any rights
now or hereafter conferred by statute or otherwise which limit
or modify any of AmeriNet's rights or remedies under this
Note.
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(b) Notices.
All notices, requests and demands to or upon any party hereto shall be
deemed to have been duly given or made when deposited in the United States mail,
first class postage prepaid, addressed to such party at such address as may be
hereafter designated in writing by such party to the other Party hereto.
(c) Payment of Expenses and Taxes; Performance by AmeriNet of Maker's
Obligations.
(1) The Maker agrees to pay all:
(A) Costs and expenses of AmeriNet in connection with the
negotiation, preparation, execution and delivery of
this Note and the other documents relating hereto,
including, without limitation, the reasonable fees
and disbursements of counsel to AmeriNet;
(B) Fees and taxes in connection with the recording of
this Note or any other document or instrument
required hereby; and
(C) Costs and expenses of AmeriNet in connection with the
enforcement of this Note including all legal fees and
disbursements arising in connection therewith.
(2) The Maker also agrees to pay, and to indemnify and hold
AmeriNet harmless from any delay in paying: all taxes,
including without limitation, sales, use, stamp and personal
property taxes (other than any corporate income, capital,
franchise or similar taxes payable by AmeriNet with respect to
the payments made to AmeriNet hereunder or thereunder); and,
all license, filing, and registration fees and assessments and
other charges, if any, which may be payable in connection with
the execution, delivery and performance of this Note, or any
modification thereof.
(3) If the Maker fails to perform or comply with any of its
agreements contained herein and AmeriNet shall itself perform
or comply, or otherwise cause performance or compliance, with
such agreement, the expenses of AmeriNet incurred in
connection with such performance or compliance, together with
interest thereon at the highest rate legally permitted shall
be payable by Maker to AmeriNet on demand and until such
payment shall constitute part of this Note secured hereby.
(d) Survival of Representations and Warranties.
All representations and warranties made in this Note and any documents
delivered pursuant hereto or thereto shall survive the execution and delivery of
this Note.
(e) Amendments.
This Note may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
a change, waiver, discharge or termination is sought.
(f) Counterparts.
This Note may be executed by the parties hereto on any number of
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
(g) Headings.
The headings of the Sections and Paragraphs are for convenience only,
are not part of this Note and shall not be deemed to effect the meaning or
construction of any of the provisions hereof.
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(h) Successors or Assigns.
This Note shall be binding upon and inure to the benefit of Maker and
AmeriNet and their respective successors and assigns, except that Maker may not
assign or transfer its rights or obligations hereunder or any interest herein
without the prior written consent of AmeriNet.
(i) Construction.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Florida.
(j) Severability.
If any provision or any portion of any provision of this Note, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Note or the application of
such provision or portion of such provision as is held invalid or unenforceable
to persons or circumstances other than those to which it is held invalid or
unenforceable, shall not be affected thereby.
(k) Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the party or
parties, or their personal representatives, successors and assigns may require.
(l) Jurisdiction.
(1) The Maker hereby irrevocably consents and agrees that any
legal action, suit or proceeding arising out of or in any way
related to this Note or the transactions contemplated hereby,
shall be instituted or brought in a forum, either legal or
arbitral, in Palm Beach County, Florida, and by execution and
delivery of this Note, the Maker hereby irrevocably accepts
and submits to, for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction
of any such tribunal, and to all proceedings in such tribunal.
(2) The Maker irrevocably consents to service of any summons
and/or legal process by registered or certified United States
air mail, postage prepaid, to Maker at the address set forth
in any filing with the Florida Department of State or the
Securities and Exchange Commission, such method of service to
constitute, in every respect, sufficient and effective service
of process in any such legal action or proceeding.
(3) Nothing in this Note shall affect the right to service of
process in any other manner permitted by law or limit the
right of AmeriNet to bring actions, suits or proceedings in
the courts or tribunals of any other jurisdiction.
(4) The Maker further agrees that final judgment against it in any
such legal action, suit or proceeding shall be conclusive and
may be enforced in any other jurisdiction, within or outside
the United States of America, by suit on the judgment, a
certified or exemplified copy of which shall be conclusive
evidence of the fact and the amount of the Maker's liability.
(m) License.
This form of Note is the property of The Yankee Companies, Inc.. The
use hereof by the Parties is authorized hereby solely for purposes of this
transaction and, the use of this form of agreement or of any derivation thereof
without The Yankee Companies, Inc.'s prior written permission is prohibited.
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* * *
IN WITNESS WHEREOF, the Maker has executed this instrument, effective as of
the 12th day of October, 2000.
Signed, Sealed & Delivered
In Our Presence:
Lorilei Communications, Inc.
------------------------
________________________ By: /s/ Lawrence R. Van Etten
Lawrence R. Van Etten, President
Attest: /s/ Vanessa H. Lindsey
Vanessa H. Lindsey, Secretary
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Exhibit 0.1
Schedule of Money Loaned to Lorilei by AmeriNet
Date Amount Loaned
5/15/00 $95,000.00
5/18/00 $5,000.00
6/30/00 $7,000.00
7/6/00 $20,000.00
7/7/00 $3,000.00
7/11/00 $7,000.00
8/3/00 $10,000.00
8/4/00 $7,000.00
8/9/00 $10,000.00
8/21/00 $10,000.00
8/25/00 $10,000.00
8/29/00 $5,000.00
9/5/00 $12,000.00
9/11/00 $8,000.00
9/20/00 $4,000.00
9/21/00 $11,000.00
10/5/00 $17,000.00
Total Loaned as of 10/5/00 $241,000.00
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Exhibit 2(a)
Legal Description of the Collateral
The information reflected in Exhibit 1.1 (W), Material Contracts; Exhibit
1.1 (Z), Legal Description of Real Property and Improvements; Schedule 1.1 (Y),
Work Orders, of the Asset Purchase Agreement between AmeriNet Group.com and
Lorilei Communications, Inc. is incorporated herein.
Exhibit 9(f)
The Pre-existing Liens
The information reflected in Exhibit 1.1(C), The Assumed Liabilities;
Schedule 2.1(B)(2), Excluded Liabilities, or the Asset Purchase Agreement
between AmeriNet Group.com and Lorilei Communications, Inc. is incorporated
herein.
