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EXHIBIT 10.2
ASSET PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of September 29, 1998 is by
and among Cherry Communications Incorporated, an Illinois corporation (d/b/a
Resurgens Communications Group, the "Seller"), World Access, Inc., a Delaware
corporation ("World Access"), and Maxxis Group, Inc., a Georgia corporation (the
"Buyer").
W I T N E S S E T H:
WHEREAS, Buyer desires to acquire assets (including a
telecommunications switch, other equipment and related licenses, authorizations
and carrier identification and access codes) that will provide Buyer with a
system (the "System") to provide intrastate and interstate long distance
telecommunications services in each State and the District of Columbia and
throughout the United States;
WHEREAS, concurrently with the execution hereof, Buyer is entering into
a Master Lease Agreement (the "Lease Agreement") with Rockford Industries, Inc.
("Rockford") to lease certain equipment set forth on the schedules thereto (the
"Equipment"), certain of which Equipment was owned by Seller and has been sold
to World Access and subsequently sold to Rockford; and
WHEREAS, the lease of the Equipment by the Buyer pursuant to the Lease
Agreement is a material benefit to Seller and World Access; and
WHEREAS, Buyer is entering into this Agreement to purchase certain
assets from Seller and to obtain certain representations and warranties from
World Access and Seller regarding such assets, the Equipment and the System;
NOW, THEREFORE, with the intent of inducing the Buyer to enter into the
Lease Agreement, in consideration of the representations, warranties and
covenants contained herein, for other good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, and upon and
subject to the terms and conditions hereinafter set forth, the parties hereto do
hereby agree as follows:
1. Acquisition of Equipment. Concurrently with the execution of this
Agreement, Buyer agrees to enter into the Lease Agreement, to cause the lease
Agreement to be delivered and to lease the Equipment pursuant to the terms set
forth in the Lease Agreement.
2. Transfer of Assets. Seller agrees to transfer assets and rights to
Buyer, solely as set forth and provided for in this Agreement, that are used by
the Seller in the operation of the System. To such end:
(a) Upon the terms and subject to the conditions of this Agreement,
Seller hereby agrees to sell, transfer and convey to Buyer, and Buyer agrees to
purchase, accept and acquire,
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all right, title and interest in and to any written registration, license,
certificate, approval, other authorization or tariff to provide intrastate
telecommunications services (collectively, "Authorizations") and related assets
set forth on Exhibit A hereto (individually, a "License," and collectively, the
"Licenses") for the Purchase Price (as defined below) and the other
consideration set forth in this Section 2.
(b) The transfer contemplated hereunder of each License is expressly
contingent upon obtaining the applicable necessary governmental consent or
approval with respect to such License. If any License is unable to be
transferred, Seller shall make all necessary filings in the applicable
jurisdiction to cause a new Authorization to be issued to Buyer. In transferring
the Licenses and in applying for new Authorizations, Buyer and Seller shall
follow the procedures described in this Section 2(b):
(i) Seller shall cause its agents to prepare promptly all filings
necessary to cause the Licenses to be transferred to Buyer.
(ii) In any jurisdiction in the United States where Seller does not
as of the date of this Agreement hold a License that entitles
it the unencumbered and unrestricted right to provide
intrastate long distance service, the Seller shall be
responsible for promptly filing new applications on behalf of
the Buyer for authority to provide such service.
(iii) Following preparation of all filings, the Seller shall forward
such filings to Buyer for Buyer's review prior to making the
filings. Buyer shall promptly review all such draft filings
and provide any comments to Seller's agent. Seller will not
cause such filings or any amendments or supplements thereto to
be made unless approved by the Buyer.
(iv) Recognizing that Buyer's customers are concentrated in certain
geographic areas, if Buyer provides Seller a written list of
jurisdictions ranked in the priority in which it desires to
obtain Authorizations, Seller shall thereafter make filings in
such jurisdictions in the specified order.
(v) If any state commission rejects or comments on a filing, the
Seller shall cause its agent to amend such filing, supply
additional information or make a new filing, as may be
necessary or advisable.
(vi) Seller shall bear all costs and expenses of making the filings
required pursuant to this Section 2, excepting only the costs
and expenses (including travel costs) incurred by officers of
Buyer in appearing in person before public utility commissions
or similar bodies of various jurisdictions.
(vii) Seller shall make all required filings within 30 days
following the date of this Agreement. Seller shall use its
best efforts to cause Buyer to obtain all necessary licenses
and approvals in a minimum of 30 states within 90
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days following the execution of this Agreement and in all 50
states and the District of Columbia within 180 days following
the execution of this Agreement.
(viii) If Seller fails to make the filings or to cause Buyer to
become qualified upon the schedule set forth in Section
2(vii), in addition to the obligations of indemnity set forth
elsewhere herein, Seller shall, at no additional cost to
Buyer, provide services under licenses, certificates and
tariffs held by Seller to customers to whom Buyer's agents
have marketed long distance services; provided, however, that
until Buyer and Seller shall agree in their reasonable
judgment that it is improbable that such Licenses can be
transferred to or acquired by Buyer, Seller shall have a
continuing obligation to pursue the transfer and acquisition
of the Licenses as contemplated by this Section 2 and, upon
Buyer obtaining Licenses to provide long distance service, all
such customers of Seller shall be transferred to Buyer without
the payment of any additional consideration. In the event that
Seller is required to provide services under its Licenses
pursuant to this Section 2(b)(viii), Buyer shall indemnify and
hold harmless Seller from and against all claims, liabilities,
expenses and damages that Seller incurs by reason of Buyer
engaging in improper activities with respect to such Licenses
or telecommunications customers who receive services pursuant
to such Licenses.
(c) The aggregate purchase price for the Licenses and services to be
provided pursuant to this Section 2 shall be $100,000.00 (the "Purchase Price")
which shall be payable by Buyer's delivery to Seller of a promissory note in the
form attached hereto as Exhibit B.
3. Assignment of Receivables to Seller. In exchange for the sum of
$150,000 which shall be paid in cash to Buyer by World Access concurrently with
the execution of this Agreement, Buyer hereby agrees to convey to World Access,
upon the terms and conditions set forth in this Section 3, all amounts paid to
Buyer by Colorado River Communications Corp. ("CRC"). Buyer shall deliver such
amounts to World Access, properly endorsed, in the same form as such amounts are
delivered to Buyer, promptly following receipt of such amounts by Buyer.
Following execution of this Agreement, Buyer shall use its commercially
reasonable best efforts to obtain the consent of CRC to an assignment of all
amounts payable to Buyer by CRC ("CRC Accounts Receivable"). Following receipt
of such consent, Buyer will convey all CRC Accounts Receivable to World Access.
Following such conveyance, World Access shall use its diligent best efforts to
collect such CRC Accounts Receivable. World Access shall retain one-half of all
amounts delivered to or collected by it pursuant to this Section 3 until the
total amount retained by World Access equals $150,000. Thereafter, World Access
shall promptly remit to Buyer all amounts that World Access is not entitled to
retain pursuant to this Section 3. If by December 31, 1998, World Access has not
retained at least $150,000 in the aggregate pursuant to this Section 3, Buyer
shall pay to World Access in cash within ten business days the difference
between $150,000 and the amount that had been withheld by World Access pursuant
to this Section 3 in the aggregate as of December 31, 1998.
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4. Representations and Warranties of Seller and World Access. As an
inducement for Buyer to enter into this Agreement and the Lease Agreement and to
consummate the transactions contemplated hereby and thereby, intending that
Buyer rely thereon in entering into and performing this Agreement and the Lease
Agreement, Seller and World Access jointly and severally represent and warrant
to Buyer that each and all of the following are true and correct in all respects
as of the date hereof:
(a) Each of Seller and World Access is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation or organization.
(b) Each of Seller and World Access has the corporate power, authority
and legal right to execute and deliver this Agreement and perform the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by each of Seller and World Access have been duly authorized by
all necessary corporate action. This Agreement constitutes the legal, valid and
binding obligation of Seller and World Access, enforceable against each of
Seller and World Access in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by each
of the Seller and World Access does not violate, conflict with or result in the
breach of any term, condition or provision of, or require the consent of any
other person under (a) any existing law, rule or regulation to which either the
Seller or World Access is subject, (b) any judgment or order to which either the
Seller or World Access is subject, (c) the charter documents of the Seller or
World Access or (d) any mortgage, contract, or other instrument, document or
understanding, oral or written, to which either the Seller or World Access is a
party or by which either Seller or World Access is otherwise bound.
(d) Seller conveyed to World Access, and World Access conveyed to
Rockford, good and marketable title to all of the Equipment, free and clear of
any and all liens, encumbrances, security devices, security interests, financing
statements, mortgages, pledges, conditional sales agreements, factor's liens,
environmental liens, charges, leases, leasehold interests, licenses, sales
taxes, use taxes, tax claims, judgments, restrictions, covenants, easements,
attachments, equities, liabilities or claims of any kind, nature or description
whatsoever (collectively, the "Encumbrances").
(e) Prior to the sale of the Equipment to Rockford and as of the date
hereof, all of the Equipment to be leased under the Lease Agreement has been
maintained in all material respects in accordance with general industry
practices. By December 30, 1998, the Equipment will be in good operating
condition and repair, subject only to ordinary wear and tear, and will be usable
and fit in all material respects in accordance with general industry practices
for its intended purposes.
(f) Seller had the corporate power and authority and the legal right to
transfer the Equipment to World Access. The transfer of the Equipment by Seller
to World Access had been duly authorized by all necessary corporate action.
World Access had the corporate power and authority and the legal right to
transfer the Equipment to Rockford. The transfer of the
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Equipment by World Access to Rockford had been duly authorized by all necessary
corporate action.
(g) With respect to In Re: Cherry Communications Incorporated (d/b/a
Resurgens Communications Group) (United States Bankruptcy Court Northern
District of Illinois Eastern Division, Case No. 97 B 32873) (the "Seller's
Bankruptcy"), the Confirmation Order dated September 3, 1998 has been executed
and entered by the judge in the Seller's Bankruptcy prior to the date hereof.
Neither Seller nor World Access is required to obtain any consent or approval of
any court, governmental agency or other party that has not been obtained
(including, without limitation, any consent or approval in connection with
Seller's Bankruptcy) in connection with the entering into of this Agreement or
the transfer of the Licenses or the Equipment pursuant to this Agreement or as
contemplated hereby.
(h) Seller has good, valid and marketable title to the Licenses, free
and clear of all Encumbrances. Except as set forth on Exhibit A, Seller is not
in default, nor has it received any notice of any claim of default, with respect
to any such License.
(i) Seller has complied with each, and is not in violation of any, law,
ordinance, or governmental or regulatory rule or regulation, whether federal,
state, local or foreign, to which the Licenses or the Equipment are subject.
(j) No representation or warranty by Seller or World Access in this
Agreement contains any untrue statement of a material fact or omits a material
fact required to be stated herein or necessary to make any statement herein not
misleading.
5. Representations and Warranties of Buyer. The Buyer hereby represents
and warrants to Seller and World Access that:
(a) Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Georgia.
(b) Buyer has the corporate power, authority and legal right to
execute, deliver and perform this Agreement. The execution, delivery and
performance of this Agreement by Buyer have been duly authorized by all
necessary corporate action. This Agreement has been duly executed and delivered
by Buyer and constitutes the legal, valid and binding obligation of Buyer
enforceable against Buyer in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by Buyer
does not violate, conflict with or result in the breach of any term, condition
or provision of, or require the consent of any other person under (a) any
existing law, rule or regulation to which Buyer is subject, (b) any judgment or
order to which Buyer is subject, (c) the charter documents of the Buyer or (d)
any mortgage, contract, or other instrument, document or understanding, oral or
written, to which Buyer is a party or by which Buyer is otherwise bound.
6. Indemnification of Buyer. The Seller and World Access will jointly
and severally indemnify, reimburse and hold harmless Buyer, the directors,
officers, employees
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and agents of Buyer and each person, if any, who controls Buyer, from and
against any and all losses, claims, liabilities, expenses and damages (including
any and all investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted) (including, but not limited to, all amounts
required to be paid pursuant to the Lease Agreement), to which they, or any of
them, may become subject, at common law or otherwise, insofar as such losses,
claims, liabilities, expenses or damages are caused by (i) any inaccuracy in the
representations and warranties of Seller or World Access contained herein or
(ii) any failure of Seller or World Access to perform its obligations hereunder
or under law.
7. Indemnification of Seller. The Buyer will indemnify, reimburse and
hold harmless Seller, the directors, officers, employees and agents of Seller
and each person, if any, who controls Seller, from and against any and all
losses, claims, liabilities, expenses and damages (including any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject, at common
law or otherwise, insofar as such losses, claims, liabilities, expenses or
damages are caused by (i) any inaccuracy in the representations and warranties
of Buyer contained herein or (ii) any failure of Buyer to perform its
obligations hereunder or under law.
8. Indemnification of World Access. Buyer will indemnify, reimburse and
hold harmless World Access, the directors, officers, employees and agents of
World Access and each person, if any, who controls World Access, from and
against any and all losses, claims, liabilities, expenses and damages (including
any and all investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them, may become
subject, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages are caused by: (i) any inaccuracy in the
representations and warranties of Buyer contained herein; (ii) any failure of
Buyer to perform its obligations hereunder or under law; or (iii) World Access
being required to pay any amount pursuant to its guaranty of the obligations of
Buyer pursuant to the Lease Agreement.
9. Miscellaneous.
(a) Seller and Buyer each represent and warrant that all negotiations
relative to this Agreement have been carried on by it directly without the
intervention of any person who may be entitled to any brokerage or finder's fee
or other commission in respect of this Agreement or the consummation of the
transactions contemplated hereby, and Seller and Buyer each agree to indemnify
and hold harmless the other against any and all claims, losses, liabilities and
expenses which may be asserted against or incurred by it as a result of any
dealings, arrangements or agreements with any such person.
(b) Seller shall pay all federal, state and local sales, documentary
and other transfer taxes, if any, due as a result of the purchase, sale or
transfer of the Licenses in accordance herewith.
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(c) Each party hereto shall pay its own expenses incidental to the
preparation of this Agreement and the consummation of the transactions
contemplated hereby.
(d) This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby. It shall not be
amended or modified except by written instrument duly executed by each of the
parties hereto. Any and all previous agreements and understandings between or
among the parties regarding the subject matter hereof, whether written or oral,
are superseded by this Agreement.
(e) Any term or provision of this Agreement may be waived at any time
by the party entitled to the benefit thereof by a written instrument duly
executed by such party.
(f) Any notice, request, demand, waiver, consent, approval or other
communication which is required or permitted hereunder shall be in writing and
shall be deemed given only if delivered personally, by telegram, by a nationally
recognized overnight carrier or by registered or certified mail, postage
prepaid, as follows:
If to Buyer, to:
Maxxis Group, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
With a copy to:
Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
First Union Plaza, Suite 1400
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx IV, Esq.
If to Seller, to:
Cherry Communications, Inc. (d/b/a Resurgens
Communications Group)
000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxx
If to World Access, to:
World Access, Inc.
000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
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or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given as of
the date so delivered, telegraphed or mailed.
(g) This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of Georgia, without regard to its conflict
of law principles.
(h) The invalidity or unenforceability of any provision of this
Agreement in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
(i) This Agreement may be executed in any number of counterparts and
any party hereto may execute any such counterpart, each of which when executed
and delivered shall be deemed to be an original and all of which counterparts
taken together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above:
MAXXIS GROUP, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
By: Xxxxxx X. Xxxxx
Title: Chief Executive Officer and
President
CHERRY COMMUNICATIONS
INCORPORATED (d/b/a RESURGENS
COMMUNICATIONS GROUP)
/s/ W. Xxx Xxxxx
--------------------------------------------
By: W. Xxx Xxxxx
Title: Executive Vice President
WORLD ACCESS, INC.
/s/ Xxxx X. Xxxxxx
--------------------------------------------
By: Xxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
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EXHIBIT A
LICENSES
All licenses described on the attachment hereto.
All numerical access codes which customers use to obtain access to
Seller's services including, but not limited to, all Carrier Identification
Codes described on the attachment hereto.
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SECOND DRAFT SEPTEMBER 28, 1998 INTRASTATE AUTHORITY PRIVILEGED AND CONFIDENTIAL
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GOVERNMENTAL AGENCY REFERENCE EFF. DATE AUTHORITY GRANTED
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Certificate of Public Convenience and
1. Alabama Public Service Necessity authorizing operations as a
Commission Docket No. 22594 10/5/92 provider of Telephone Toll Resale Service
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Authority to provider interexchange
telecommunications services via
Registration filed 6/24/92. Subsequent
Reseller Certification Application filed
2. Arizona Corporation 11/30/95 in Docket #T-02677A-92-0181
Commission Registration 6/24/92 (still pending).
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Certificate of Public Convenience and
Necessity to operate as a reseller of
3. Arkansas Public Service competitive intrastate long distance toll
Commission Docket No. 92-173-U 8/5/92 services.
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Certificate of Public Convenience and
Necessity granting authority to operate
as a reseller of the InterLATA
4. California Public telecommunication service offered by
Utilities Commission Application No. 00-00-000 3/10/93 communication common carriers.
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See copy of California PUC 1.95-10-007
Settlement Agreement attached herein
effective September 4, 1996 when it was
signed by the Commission; a copy of the
September 4, 1996 order is attached
" " " " herein.
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5. Colorado Public Authority to provide interexchange
Utilities Commission Registration 12/9/92 telecommunications services.
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Certificate of Public Convenience and
6. Delaware Public Necessity to provide intrastate
Utilities Commission Docket No. 94-187 12/20/94 telecommunications services to the public.
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7. District of Columbia Unregulated
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Non-dominant interexchange carrier
Certificate No. 3134. See Florida
8. Florida Public Service September 21, 1995 PSC Order accepting
Commission Docket No. 920732-TI 11/12/92 settlement attached herein.
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Interim Certificate of Public Convenience
and Necessity to Resell Interexchange
Telecommunications Services. Interim
Certificate has recently expired.
Waiting for status response from Georgia
9. Georgia Public Service PSC staff which shall be shortly
Commission Docket No. 5426-U 5/2/95 forthcoming.
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SECOND DRAFT SEPTEMBER 28, 1998 INTRASTATE AUTHORITY PRIVILEGED AND CONFIDENTIAL
Per Xxxxxx Xxxxxx September 28, 1998, 2 pm
CST, Cherry was granted another 12 month
Interim Certificate so that the Georgia PSC
could wait and see the outcome of Cherry's
Chapter 11 reorganization. In addition,
Xxxxxx Xxxxxx asked for some additional
information from Cherry. Waiting for
" " " " " confirmation and information requests fax
from Xxxxxx Xxxxxx.
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" " " " "
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10. Idaho Public Utilities Authority to provide interexchange
Commission Registration 8/16/92 telecommunications services
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Certificate of Interexchange Service
Authority granted to provide resold
11. Illinois Commerce interexchange IntraMSA and InterMSA
Commission File No. 92-0234 8/26/92 telecommunications services.
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TF 92-58 (Tariff) Reseller of interexchange
12. Iowa Utilities Board WRU-92-19 (Waivers) 3/31/92 telecommunications services.
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13. Kansas Corporation Docket No. 183.413-U Certificate of Convenience and Authority
Commission 93-CHRC-090-C 10/19/92 to resell telecommunication services.
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14. Commonwealth of
Kentucky Public Service Authority to resell intrastate
Commission Case No. 94-423 3/15/95 long-distance telecommunications services.
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Certificate of Authority to provide
15. Louisiana Public resold interexchange telecommunication
Service Commission Registration 7/23/92 services.
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16. Maryland Public Service Authorization to operate as a reseller of
Commission ML##s 44064 & 44478; TE-785 7/20/94 MTS and WATS telephone services.
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Cherry Communications, Inc.'s Mass.
Tariff No. 1 Allowed to go into effect as
17. Massachusetts filed to provide intrastate interexchange
Department of Public telecommunications services on a reseller
Utilities Registration 7/13/95 basis.
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18. Michigan Public Service
Commission Registration 12/17/92 Resale Interexchange carrier
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SECOND DRAFT SEPTEMBER 28, 1998 INTRASTATE AUTHORITY PRIVILEGED AND CONFIDENTIAL
Certificate of Public Convenience and
Necessity to provide InterLATA and
19. Mississippi Public IntraLATA toll telecommunications
Service Commission Case No. 95-UA-0095 4/6/95 services on a resale basis.
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20. Montana Public Service Authority to provide telecommunication
Commission Registration 12/10/92 services on a resale basis.
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Extension of Conditional Authority to
provide InterLATA and IntraLATA
Interexchange telecommunications
services. See copy of Conditional
Authority Order from the Nebraska PSC
21. Nebraska Public Service dated July 31, 1995; copy of the January
Commission Application No. C-1183 7/31/95 9, 1996 Nebraska PSC Order.
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Copy of the June 16, 1998 Nebraska PSC
Rule to Show Cause Order to Revoke
Cherry's Conditional Authority; and a
copy of Attorney Xxxx Xxxxxx'x (Cherry's
local Nebraska Attorney) July 29,1998
22. " " " " letter to the Nebraska PSC.
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Certificate of Public Convenience and
Necessity to operate as a reseller of
23. Nevada Public Service intrastate interexchange
Commission Docket No. 95-7018 9/21/95 telecommunications services.
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24. New Jersey Board of Authorization as a non-dominant
Public Utilities Registration 11/16/92 interexchange carrier.
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25. New Mexico State Certificate of Public Convenience and
Corporation Necessity for authority to provide public
Commission Docket No. 92-249-TC 12/27/94 intrastate telecommunications services.
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Certificate of Public Convenience and
Necessity to operate as a reseller of
telephone services via landline telephone
26. New York Public Service company or other common carrier
Commission Case No. 92-C-0585 8/27/92 facilities.
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Certificate of Registration No. 231 as
27. North Dakota Public Intrastate long distance
Service Commission Case No. PU-1346-95-121 4/12/95 telecommunications reseller.
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Certificate of Public Convenience and
28. Public Utilities Necessity to provide competitive
Commission of Ohio Case No. 94-1982-CT-ACE 5/22/95 telecommunication services.
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Registration authorizing interexchange
carrier service on December 11, 1992.
Subsequent application for Certificate of
Public Convenience and Necessity filed
29. Oklahoma Corporation 10/30/95, Case No. PUD-95-0000318 (still
Commission Registration 12/11/92 pending).
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Application for authority to provide
30. Oregon Public Utility telecommunications services as a
Commission UM 489, Order No. 92-992 7/7/92 competitive provider.
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SECOND DRAFT SEPTEMBER 28, 1998 INTRASTATE AUTHORITY PRIVILEGED AND CONFIDENTIAL
Certificate of Public Convenience to
31. Pennsylvania Public furnish service as a reseller of
Utility Commission Application A.310123 8/5/93 interexchange telecommunication service.
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Certificate of Public Convenience and
necessity to provide intrastate InterLATA
service on a one year probationary basis
issued 7/13/95. Order removing probation
32. South Carolina Public status and granting permanent status
Service Commission Docket No. 94-621-C 7/13/95 dated August 19, 1996.
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33. South Dakota Public Certificate of Authority to provide
Utilities Commission Docket No. TC95-059 4/23/96 intrastate telecommunications services
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Certificate of Convenience and Necessity
34. Tennessee Regulatory as an interexchange telecommunications
Authority Case Number 95-03214 10/13/95 reseller.
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35. Texas Public Utility Authority as a non-dominant interexchange
Commission Registration 9/22/92 carrier
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36. Utah Public Service Authority as a non-dominant interexchange
Commission Registration 12/16/92 carrier
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37. Virginia State Registration as a non-dominant
Corporation Commission Registration 12/8/92 interexchange carrier
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38. Washington Utilities Authorizing registration as a
and Transportation telecommunications company to provide
Commission Docket No. UT-930978 9/30/92 service.
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39. Public Service Certificate of Convenience and Necessity
Commission of West to provide resold telecommunications
Virginia Docket No. 95-0151-T-CN 7/11/95 services.
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40. Wisconsin Public Authorized to provide services as an
Service Commission Docket No. 7814-TI-101 3/30/95 Alternative Telecommunications Utility
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Cherry Communications
Incorporated's CIC
(Carrier Identification
Code) is 270.
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Page 4
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EXHIBIT B
PROMISSORY NOTE
$100,000.00 SEPTEMBER 29, 1998
MAXXIS GROUP, INC. (hereinafter referred to as "Maker"), for value
received, hereby promises to pay to the order of CHERRY COMMUNICATIONS
INCORPORATED d/b/a Resurgens Communications Group, an Illinois corporation
(hereinafter referred to as "Payee"), the aggregate principal sum of ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) on the earlier of (i) March 1, 2000 or (ii) the
closing of an initial public offering of Maker's capital stock for cash which is
offered and sold in a transaction registered under the Securities Act of 1933,
as amended, through one or more underwriters, all pursuant to an underwriting
agreement between Maker and such underwriters, resulting in aggregate gross
proceeds of $7,500,000 to the Company. After January 1, 1999, Maker shall pay
monthly in arrears simple interest on the principal at the rate of 8.00% per
annum. Maker and Payee expressly agree that no interest on the principal shall
begin to accrue until January 1, 1999. The principal hereof and the interest
thereon are payable at 000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, or at such other place as Payee may from time to time designate to Maker
in writing, in coin or currency of the United States of America.
Maker may, at any time and from time to time, prepay all or any portion
of the principal of this Note remaining unpaid, without penalty or premium.
Prepayments shall be applied first to the payment of accrued but unpaid interest
on this Note and the balance to principal.
This Note is without recourse to any assets of Maker.
This Note shall be governed by, and enforced and interpreted in
accordance with, the laws of the State of Georgia without regard to the
principles of conflict of laws.
In the event that Maker fails to make any payment when due, Payee shall
provide written notice of default to Maker, which notice shall allow Maker 30
days from the date of receipt of such notice in which to cure such default. If
such default is not cured within the time allowed, the balance hereof shall be
deemed to be immediately accelerated without further notice to Maker.
IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the
date first set forth above.
MAXXIS GROUP, INC.
By:
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Title:
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