SUBSIDIARY GUARANTEE
EXHIBIT
E
SUBSIDIARY
GUARANTEE, dated as of October 27, 2005, made by each of the signatories hereto
(together with any other entity that may become a party hereto as provided
herein, (the "Guarantors"), in favor of the Purchasers signatory (the
"Purchasers") to that certain Securities Purchase Agreement, dated as of the
date hereof, between Global Axcess Corp., a Nevada corporation (the "Company")
and the Purchasers.
WITNESSETH:
Whereas,
pursuant to that certain Securities Purchase Agreement, dated as of the date
hereof, by and between the Company and the Purchasers (the "Purchase
Agreement"), the Company has agreed to sell and issue to the Purchasers, and the
Purchasers has agreed to purchase from the Company the Company's 9% Senior
Subordinated Secured Convertible Notes, due October 27, 2010 (the "Notes"),
subject to the terms and conditions set forth therein; and
Whereas,
each Guarantor will directly benefit from the extension of credit to the Company
represented by the issuance of the Notes; and
NOW,
THEREFORE, in consideration of the premises and to induce the Purchasers to
enter into the Purchase Agreement and to carry out the transactions contemplated
thereby, each Guarantor hereby agrees with the Purchasers as
follows:
1.
Definitions. Unless otherwise defined herein, terms defined in the Purchase
Agreement and used herein shall have the meanings given to them in the Purchase
Agreement. The words "hereof," "herein," "hereto" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and Section and
Schedule references are to this Guarantee unless otherwise specified. The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms. The following terms shall have the
following meanings:
"Guarantee"
means this Subsidiary Guarantee, as the same may be amended, supplemented or
otherwise modified from time to time.
"Obligations"
means the collective reference to all obligations and undertakings of the
Company of whatever nature, monetary or otherwise, under the Notes, the Purchase
Agreement, the Security Agreement, the Warrants, the Registration Rights
Agreement or any other future agreement or obligations undertaken by the Company
to the Purchasers, together with all reasonable attorneys' fees, disbursements
and all other costs and expenses of collection incurred by Purchasers in
enforcing any of such Obligations and/or this Guarantee.
2.
Guarantee.
(a)
Guarantee.
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(i)
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The
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantee to the Purchasers and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance
by the Company when due (whether at the stated maturity, by acceleration
or otherwise) of the Obligations.
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(ii)
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Anything
herein or in any other Transaction Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Transaction Documents shall in no event exceed the amount
which can be guaranteed by such Guarantor under applicable federal and
state laws, including laws relating to the insolvency of debtors,
fraudulent conveyance or transfer or laws affecting the rights of
creditors generally (after giving effect to the right of contribution
established in Section 2(b)).
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(iii)
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Each
Guarantor agrees that the Obligations may at any time and from time to
time exceed the amount of the liability of such Guarantor hereunder
without impairing the guarantee contained in this Section 2 or affecting
the rights and remedies of the Purchasers
hereunder.
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(iv)
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The
guarantee contained in this Section 2 shall remain in full force and
effect until all the Obligations and the obligations of each Guarantor
under the guarantee contained in this Section 2 shall have been satisfied
by payment in full.
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(v)
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No
payment made by the Company, any of the Guarantors, any other guarantor or
any other Person or received or collected by the Purchasers from the
Company, any of the Guarantors, any other guarantor or any other Person by
virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment
of the Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of any Guarantor hereunder which shall,
notwithstanding any such payment (other than any payment made by such
Guarantor in respect of the Obligations or any payment received or
collected from such Guarantor in respect of the Obligations), remain
liable for the Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in
full.
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(vi)
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Notwithstanding
anything to the contrary in this Agreement, with respect to any defaulted
non-monetary Obligations the specific performance of which by the
Guarantors is not reasonably possible (e.g. the issuance of the Company's
Common Stock), the Guarantors shall only be liable for making the
Purchasers whole on a monetary basis for the Company's failure to perform
such Obligations in accordance with the Transaction
Documents.
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(b)
Right of Contribution. Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share of any payment made
hereunder, such Guarantor shall be entitled to seek and receive contribution
from and against any other Guarantor hereunder which has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2(c). The provisions of
this Section 2(b) shall in no respect limit the obligations and liabilities of
any Guarantor to the Purchasers, and each Guarantor shall remain liable to the
Purchasers for the full amount guaranteed by such Guarantor
hereunder.
(c) No
Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any
set-off or application of funds of any Guarantor by the Purchasers, no Guarantor
shall be entitled to be subrogated to any of the rights of the Purchasers
against the Company or any other Guarantor or any collateral security or
guarantee or right of offset held by the Purchasers for the payment of the
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company or any other Guarantor in respect
of payments made by such Guarantor hereunder, until all amounts owing to the
Purchasers by the Company on account of the Obligations are paid in full. If any
amount shall be paid to any Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Purchasers, segregated
from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Purchasers in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Purchasers, if required), to
be applied against the Obligations, whether matured or unmatured, in such order
as the Purchasers may determine.
(d)
Amendments, Etc. With Respect to the Obligations. Each Guarantor shall remain
obligated hereunder notwithstanding that, without any reservation of rights
against any Guarantor and without notice to or further assent by any Guarantor,
any demand for payment of any of the Obligations made by the Purchasers may be
rescinded by the Purchasers and any of the Obligations continued, and the
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Purchasers, and the Purchase Agreement and the other Transaction Documents
and any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Purchasers may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Purchasers for the payment
of the Obligations may be sold, exchanged, waived, surrendered or released. The
Purchasers shall have no obligation to protect, secure, perfect or insure any
Lien at any time held by them as security for the Obligations or for the
guarantee contained in this Section 2 or any property subject
thereto.
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(e)
Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice
of the creation, renewal, extension or accrual of any of the Obligations and
notice of or proof of reliance by the Purchasers upon the guarantee contained in
this Section 2 or acceptance of the guarantee contained in this Section 2; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings between the
Company and any of the Guarantors, on the one hand, and the Purchasers, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2. Each
Guarantor waives to the extent permitted by law diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Company or
any of the Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that the guarantee contained in this Section 2 shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the Purchase Agreement
or any other Transaction Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Purchasers, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance
or fraud or misconduct by Purchasers) which may at any time be available to or
be asserted by the Company or any other Person against the Purchasers, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the
Company or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the Obligations,
or of such Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Purchasers may, but shall be under no obligation to, make a similar demand on or
otherwise pursue such rights and remedies as it may have against the Company,
any other Guarantor or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Purchasers to make any such demand, to pursue such other
rights or remedies or to collect any payments from the Company, any other
Guarantor or any other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the
Company, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Purchasers against any Guarantor. For the purposes hereof, "demand" shall
include the commencement and continuance of any legal proceedings.
(f)
Reinstatement. The guarantee contained in this Section 2 shall continue to
be effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Purchasers upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Company or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Company or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
(g)
Payments. Each Guarantor hereby guarantees that payments hereunder will be paid
to the Purchasers without set-off or counterclaim in U.S. dollars at the address
set forth or referred to in the Purchase Agreement.
3.
Representations and Warranties. Each Guarantor hereby makes the following
representations and warranties to Purchasers as of the date hereof:
(a)
Organization and Qualification. The Guarantor is a corporation or limited
liability company, duly incorporated, validly existing and in good standing
under the laws of the applicable jurisdiction set forth on Schedule 1, with the
requisite corporate power and authority to own and use its properties and assets
and to carry on its business as currently conducted. The Guarantor has no
subsidiaries other than those identified as such on the Disclosure Schedules to
the Purchase Agreement. The Guarantor is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not, individually or in the aggregate, (x) adversely
affect the legality, validity or enforceability of any of this Guaranty in any
material respect, (y) have a material adverse effect on the results of
operations, assets, prospects, or financial condition of the Guarantor or (z)
adversely impair in any material respect the Guarantor's ability to perform
fully on a timely basis its obligations under this Guaranty (a "Material Adverse
Effect").
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(b)
Authorization; Enforcement. The Guarantor has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Guaranty, and otherwise to carry out its obligations hereunder. The execution
and delivery of this Guaranty by the Guarantor and the consummation by it of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action on the part of the Guarantor. This Guaranty has been duly
executed and delivered by the Guarantor and constitutes the valid and binding
obligation of the Guarantor enforceable against the Guarantor in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application.
(c)
No Conflicts. The execution, delivery and performance of this Guaranty by
the Guarantor and the consummation by the Guarantor of the transactions
contemplated thereby do not and will not (i) conflict with or violate any
provision of its Certificate of Incorporation or By-laws or (ii) conflict with,
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Guarantor is a party, or (iii) result in a violation of
any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the Guarantor is
subject (including Federal and state securities laws and regulations), or by
which any material property or asset of the Guarantor is bound or affected,
except in the case of each of clauses (ii) and (iii), such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as could
not, individually or in the aggregate, have or result in a Material Adverse
Effect. The business of the Guarantor is not being conducted in violation of any
law, ordinance or regulation of any governmental authority, except for
violations which, individually or in the aggregate, do not have a Material
Adverse Effect.
(d)
Consents and Approvals. The Guarantor is not required to obtain any consent,
waiver, authorization or order of, or make any filing or registration with, any
court or other federal, state, local, foreign or other governmental authority or
other person in connection with the execution, delivery and performance by the
Guarantor of this Guaranty.
(e) Purchase
Agreement. The representations and warranties of the Company set forth in the
Purchase Agreement as they relate to such Guarantor, each of which is hereby
incorporated herein by reference, are true and correct as of each time such
representations are deemed to be made pursuant to such Purchase Agreement, and
the Purchasers shall be entitled to rely on each of them as if they were fully
set forth herein, provided, that each reference in each such representation and
warranty to the Company's knowledge shall, for the purposes of this Section 3,
be deemed to be a reference to such Guarantor's knowledge.
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(f)
Foreign Law. Each Guarantor has consulted with appropriate foreign legal counsel
with respect to any of the above representations for which non-U.S. law is
applicable. Such foreign counsel have advised each applicable Guarantor that
such counsel knows of no reason why any of the above representations would not
be true and accurate. Such foreign counsel were provided with copies of this
Subsidiary Guarantee and the Transaction Documents prior to rendering their
advice.
4. Covenants.
Each Guarantor covenants and agrees with the Purchasers that, from and after the
date of this Guarantee until the Obligations shall have been paid in full, such
Guarantor shall take, and/or shall refrain from taking, as the case may be, each
commercially reasonable action (including complying with all of its obligations
in Section 7 of the Note) that is necessary to be taken or not taken, as the
case may be, so that no Event of Default is caused by the failure to take such
action or to refrain from taking such action by such Guarantor.
5.
Miscellaneous.
(a)
Amendments in Writing. None of the terms or provisions of this Guarantee
may be waived, amended, supplemented or otherwise modified except in writing by
the majority in interest (based on the then-outstanding principal amount of the
Notes at the time of such determination) of the Purchasers.
(b)
Notices. All notices, requests and demands to or upon the Purchasers or
any Guarantor hereunder shall be effected in the manner provided for in the
Purchase Agreement; provided that any such notice, request or demand to or upon
any Guarantor shall be addressed to such Guarantor at its notice address set
forth on Schedule 5(b).
(c)
No Waiver By Course Of Conduct; Cumulative Remedies. The Purchasers shall not by
any act (except by a written instrument pursuant to Section 5(a)), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default under the Transaction Documents
or Event of Default. No failure to exercise, nor any delay in exercising, on the
part of the Purchasers, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Purchasers of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Purchasers would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
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(d)
Enforcement Expenses; Indemnification.
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(i)
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Each
Guarantor agrees to pay, or reimburse the Purchasers for, all its costs
and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any
rights under this Guarantee and the other Transaction Documents to which
such Guarantor is a party, including, without limitation, the reasonable
fees and disbursements of counsel to the
Purchasers.
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(ii)
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Each
Guarantor agrees to pay, and to save the Purchasers harmless from, any and
all liabilities with respect to, or resulting from any delay in paying,
any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable in connection with any of the transactions
contemplated by this Guarantee.
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(iii)
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Each
Guarantor agrees to pay, and to save the Purchasers harmless from, any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Guarantee to the extent the Company
would be required to do so pursuant to the Purchase
Agreement.
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(iv)
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The
agreements in this Section shall survive repayment of the Obligations and
all other amounts payable under the Purchase Agreement and the other
Transaction Documents.
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(e)
Successor and Assigns. This Guarantee shall be binding upon the successors and
assigns of each Guarantor and shall inure to the benefit of the Purchasers and
their respective successors and assigns; provided that no Guarantor may assign,
transfer or delegate any of its rights or obligations under this Guarantee
without the prior written consent of the Purchasers.
(f)
Set-Off. Each Guarantor hereby irrevocably authorizes the Purchasers at any time
and from time to time while an Event of Default under any of the Transaction
Documents shall have occurred and be continuing, without notice to such
Guarantor or any other Guarantor, any such notice being expressly waived by each
Guarantor, to set-off and appropriate and apply any and all deposits, credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Purchasers to or for the credit or the account of such Guarantor,
or any part thereof in such amounts as the Purchasers may elect, against and on
account of the obligations and liabilities of such Guarantor to the Purchasers
hereunder and claims of every nature and description of the Purchasers against
such Guarantor, in any currency, whether arising hereunder, under the Purchase
Agreement, any other Transaction Document or otherwise, as the Purchasers may
elect, whether or not the Purchasers have made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Purchasers shall notify such Guarantor promptly of any such
set-off and the application made by the Purchasers of the proceeds thereof,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Purchasers under this Section
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Purchasers may have.
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(g)
Counterparts. This Guarantee may be executed by one or more of the parties to
this Guarantee on any number of separate counterparts (including by telecopy),
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
(h)
Severability. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(i)
Section Headings. The Section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
(j) Integration.
This Guarantee and the other Transaction Documents represent the agreement of
the Guarantors and the Purchasers with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties
by the Purchasers relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Transaction
Documents.
(k)
Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO ANY PRINCIPLES OF CONFLICTS OF LAWS.
(l)
Submission to Jurisdictional; Waiver. Each Guarantor hereby irrevocably
and unconditionally:
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(i)
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submits
for itself and its property in any legal action or proceeding relating to
this Guarantee and the other Transaction Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the Courts of the State of New
York, located in New York County, New York, the courts of the United
States of America for the Southern District of New York, and appellate
courts from any thereof;
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(ii)
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consents
that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
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(iii)
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agrees
that service of process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Guarantor at
its address referred to in the Purchase Agreement or at such other address
of which the Purchasers shall have been notified pursuant
thereto;
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(iv)
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agrees
that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to xxx in any
other jurisdiction; and
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(v)
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waives,
to the maximum extent not prohibited by law, any right it may have to
claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential
damages.
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(m)
Acknowledgements.
Each Guarantor hereby acknowledges that:
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(i)
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it
has been advised by counsel in the negotiation, execution and delivery of
this Guarantee and the other Transaction Documents to which it is a
party;
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(ii)
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the
Purchasers have no fiduciary relationship with or duty to any Guarantor
arising out of or in connection with this Guarantee or any of the other
Transaction Documents, and the relationship between the Guarantors, on the
one hand, and the Purchasers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor;
and
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(iii)
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no
joint venture is created hereby or by the other Transaction Documents or
otherwise exists by virtue of the transactions contemplated hereby among
the Guarantors and the Purchasers.
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(n)
Additional Guarantors. The Company shall cause each of its subsidiaries formed
or acquired on or subsequent to the date hereof to become a Guarantor for all
purposes of this Guarantee by executing and delivering an Assumption Agreement
in the form of Annex 1 hereto.
(o)
Release of Guarantors. Subject to Section 2(f), each Guarantor will be released
from all liability hereunder concurrently with the repayment in full of all
amounts owed under the Purchase Agreement, the Notes and the other Transaction
Documents; provided, however, that in the event that the Company sells all of
the assets or stock of ______________, on terms satisfactory to the Purchaser,
__________ will be released from all liability hereunder.
(p)
Seniority. The Obligations of each of the Guarantors hereunder rank senior in
priority to any other debt of such Guarantor other than debt in favor of the
Senior Lender.
(q)
Waiver of Jury Trial. EACH GUARANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF,
THE PURCHASERS, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY
COUNTERCLAIM THEREIN.
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IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be duly
executed and delivered as of the date first above written.
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[SUBSIDIARY]
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
Xxxxxxx Xxxxx
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Title:
Chief
Executive
Officer
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SCHEDULE
1
GUARANTORS
The
following are the names, notice addresses and jurisdiction of organization of
each Guarantor.
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JURISDICTION OF
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COMPANY OWNED
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NAME
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ADDRESS
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INCORPORATION
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BY PERCENTAGE
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Nationwide Money
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224
Ponte Vedra Park
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Nevada
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100%
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|||
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Services
Xxx
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Xxxxx,
Xxxxx Xxxxx
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|||||
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Xxxxx,
XX, 00000
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||||||
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EFT
Integration Inc.
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000
Xxxxx Xxxxx Xxxx
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Xxxxxxx
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100%
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|||
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Drive,
Xxxxx Xxxxx
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||||||
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Xxxxx,
XX, 00000
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||||||
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Electronic
Payment &
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000
Xxxxx Xxxxx Xxxx
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Xxxxxx
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100%
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|||
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Transfer
Xxxx
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Xxxxx,
Xxxxx Xxxxx
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|||||
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Xxxxx,
XX, 00000
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||||||
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Axcess
Technology
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224
Ponte Vedra Park
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Nevada
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100%
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|||
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Xxxx
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Xxxxx,
Xxxxx Xxxxx
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|||||
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Xxxxx,
XX, 00000
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||||||
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Axcess
Technology
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South
Africa
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South
Africa
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100%
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Corp
SA
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||||||
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Cash
Axcess Corp
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South
Africa
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South
Africa
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100%
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|||
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Nationwide
Money
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224
Ponte Vedra Park
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Nevada
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100%
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|||
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Services
Xxx
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Xxxxx,
Xxxxx Xxxxx
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|||||
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Xxxxx,
XX, 00000
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||||||
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EFT
Integration Inc.
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000
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Annex 1
to
ASSUMPTION
AGREEMENT, dated as of ____ __, ______ made by ______________________________, a
______________ corporation (the "Additional Guarantor"), in favor of the
Purchasers pursuant to the Purchase Agreement referred to below. All capitalized
terms not defined herein shall have the meaning ascribed to them in such
Purchase Agreement.
WITNESSETH:
WHEREAS,
Global Axcess Corp., a _____________ corporation (the "Company") and the
Purchasers have entered into a Securities Purchase Agreement, dated as of
October 27, 2005 (as amended, supplemented or otherwise modified from time to
time, the "Purchase Agreement");
WHEREAS,
in connection with the Purchase Agreement, the Company and its Subsidiaries
(other than the Additional Guarantor) have entered into the Subsidiary
Guarantee, dated as of October 27, 2005 (as amended, supplemented or otherwise
modified from time to time, the "Guarantee") in favor of the
Purchasers;
WHEREAS,
the Purchase Agreement requires the Additional Guarantor to become a party to
the Guarantee; and
WHEREAS,
the Additional Guarantor has agreed to execute and deliver this Assumption
Agreement in order to become a party to the Guarantee;
NOW,
THEREFORE, IT IS AGREED:
1.
Guarantee. By executing and delivering this Assumption Agreement, the Additional
Guarantor, as provided in Section 5(n) of the Guarantee, hereby becomes a party
to the Guarantee as a Guarantor thereunder with the same force and effect as if
originally named therein as a Guarantor and, without limiting the generality of
the foregoing, hereby expressly assumes all obligations and liabilities of a
Guarantor thereunder. The information set forth in Annex 1-A hereto is hereby
added to the information set forth in Schedule 1 to the Guarantee. The
Additional Guarantor hereby represents and warrants that each of the
representations and warranties contained in Section 3 of the Guarantee is true
and correct on and as the date hereof as to such Additional Guarantor (after
giving effect to this Assumption Agreement) as if made on and as of such
date.
2.
Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly
executed and delivered as of the date first above written.
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[ADDITIONALGUARANTOR]
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By:
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Name:
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Title:
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