Exhibit 4.5
EXHIBIT E
SUBSIDIARY GUARANTEE
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.
W I T N E S S E T H:
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.
(i) 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.
(ii) 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)).
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(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:
(i) 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;
(ii) 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;
(iii) 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) 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
(v) 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.
(m) Acknowledgements. Each Guarantor hereby acknowledges that:
(i) 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;
(ii) 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
(iii) 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.
(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.
[SUBSIDIARY]
By:
---------------------------------
Name:
Title:
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SCHEDULE 1
GUARANTORS
The following are the names, notice addresses and jurisdiction
of organization of each Guarantor.
JURISDICTION OF COMPANY OWNED
NAME ADDRESS INCORPORATION BY PERCENTAGE
-------------------- -------------------- --------------- -------------
Nationwide Money 224 Ponte Vedra Park Nevada 100%
Services Xxx Xxxxx, Xxxxx Xxxxx
Xxxxx, XX, 00000
EFT Integration Inc. 000 Xxxxx Xxxxx Xxxx Xxxxxxx 100%
Drive, Xxxxx Xxxxx
Xxxxx, XX, 00000
Electronic Payment & 000 Xxxxx Xxxxx Xxxx Xxxxxx 100%
Transfer Xxxx Xxxxx, Xxxxx Xxxxx
Xxxxx, XX, 00000
Axcess Technology 224 Ponte Vedra Park Nevada 100%
Xxxx Xxxxx, Xxxxx Xxxxx
Xxxxx, XX, 00000
Axcess Technology South Africa South Africa 100%
Corp SA
Cash Axcess Corp South Africa South Africa 100%
Nationwide Money 224 Ponte Vedra Park Nevada 100%
Services Xxx Xxxxx, Xxxxx Xxxxx
Xxxxx, XX, 00000
EFT Integration Inc. 000 Xxxxx Xxxxx Xxxx Xxxxxxx 000%
Xxxxx, Xxxxx Xxxxx
Xxxxx, XX, 00000
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Annex 1 to
SUBSIDIARY GUARANTEE
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.
W I T N E S S E T H :
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.
[ADDITIONALGUARANTOR]
By:
----------------------------
Name:
Title:
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