Exhibit 10.4
EXHIBIT 3.2(a)
ASSIGNMENT OF MERCHANT & OTHER CONTRACTS
AND ACKNOWLEDGMENT BY ASSIGNOR AND ASSIGNEE
THIS ASSIGNMENT OF MERCHANT & OTHER CONTRACTS AND ACKNOWLEDGMENT BY
ASSIGNOR AND ASSIGNEE ("Assignment Agreement"), made and entered into as of the
_____ day of _______________, 2004, among Progressive Ventures, Inc., a Texas
corporation, with offices at 0000 Xxxxxxxxx Xxxx. Xxxx 000, Xxxxx 000, Xxxxxx,
XX 00000, ("Assignor") and Global Axcess Corporation, a Nevada corporation, with
offices at 000 Xxxxx Xxxxx Xxxx Xx., Xxxxx Xxxxx Xxxxx, XX 00000 ("Assignee")
with an Effective Date of February 1, 2004("Effective Date").
W I T N E S S E T H :
WHEREAS, Assignor, entered into those certain Merchant Agreements, Investor
Agreements, Coredata Agreement, Contractor Agreements and an Advertising
Agreement(the "Contracts"), attached hereto in Exhibit A is a list of each
contract and date of contract and by this reference made a part hereof; and
WHEREAS, Assignor, in accordance with the Asset Purchase Agreement dated
January 21, 2004 between Global Axcess Corporation, a Nevada corporation, and
Progressive Ventures, Inc., a Texas corporation (the "Asset Purchase
Agreement"), is agreeing to assign all rights and obligations under the
Contracts to Assignee; and
WHEREAS, Assignee desires to assume all of the rights, covenants and
obligations of Assignor under the Contracts; and
WHEREAS, the parties hereto desire to evidence and confirm the assignment
of the Contracts by Assignor to Assignee and the assumption by Assignee of all
the covenants and obligations of Assignor under the Contracts as if Assignee
were to provide the original Services there under;
NOW THEREFORE, for and in consideration of the rights and terms of the
Contracts, and for other good and valuable consideration as noted in the Asset
Purchase Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. In the event of any inconsistency between the provisions,
terms, conditions and agreements in the Contracts or in this Assignment
Agreement, the provisions, terms, conditions and agreements of this Assignment
Agreement shall control. Capitalized terms used herein and not defined herein
shall have the meanings ascribed to them in the Contracts.
"Assignor" shall include Progressive Ventures, Inc. dba/Progressive ATM,
its officers, directors, managers, employees, agents and any of its subsidiaries
or subdivisions when and if created.
"Assignee" shall include Global Axcess Corp., and any of its subsidiaries
or subdivisions when and if created.
"Customers" shall include the current or future Assignor and/or Assignee
customers in the market of purchasing or using the services of an ATM, or ATM
related device, such that an ATM makes cash available for a convenience or
surcharge fee and the transaction is processed for an interchange fee.
"ATM Placement" whereby an automated teller machine(ATM) or related device
like a script machine is used to dispense, or make available to a customer, cash
for a surcharge or convenience fee and/or interchange fee and shall mean any
activity providing, selling or renting automated teller machines or script
machines to merchants, businesses, investors or anyone which is a competitive
activity to Assignee.
"Transaction Processing" is a financial transaction transfer of data, from
a customer initiated transaction through a network involving monetary amounts
for purposes of paying for products or services or providing cash to the
customer initiating the transaction and include any financial transaction
related service of either buying or selling or providing the activity of
processing transactions for merchants, businesses, investors or anyone which is
a competitive activity to Assignee.
2. Assignment and Assumption. As of the Effective Date Assignor hereby
transfers, conveys and assigns unto Assignee all of Assignor's rights, title and
interest in and to the Contracts. As of the Effective Date, Assignee accepts
such assignment and assumes all of Assignor's duties, covenants and obligations
under the Contracts (other than liabilities and expenses relating to Seller's
breach of default thereunder prior to February 1, 2004), to the same extent and
with the same force and effect as if Assignee had executed the Contracts and had
been the original provider of Services thereunder. The Assignor hereby assigns,
conveys and transfers as of the effective date parties herby ratify the acts set
forth herein. Assignee shall have the right to assign this Assignment Agreement
to its subsidiaries, and all covenants and agreements hereunder shall be inure
to the benefit of and be enforceable by said subsidiaries.
3. Exclusivity under the Contracts and Assignment Agreement. Assignor
grants to Assignee, as of the Effective Date, the exclusive right to perform the
services set forth in the Contracts, including without limitation, to process
all transactions for all Assignor's Customers, in form and substance as follows:
Assignee will have the exclusive marketing rights to Assignor's Customers for
purposes of ATM Placement or Transaction Processing of financial services to
include: ATM/Debit/VISA/Mastercard, for as long as Customers are under verbal or
written Merchant Contracts for products or services.
Assignor also grants to Assignee, as of the Effective Date, the exclusive
right to perform the services set forth in the Contracts, including without
limitation, to process all transactions for all and any of Assignor's future
Customers, in form and substance as follows: Assignee will have the exclusive
marketing rights to Assignor's future Customers for purposes of ATM Placement or
Transaction Processing of financial services to include:
ATM/Debit/VISA/Mastercard, for as long as Customers are under verbal or written
Merchant Contracts for products or services.
4. Non-Compete. Assignor agrees not to compete in any way, form or
substance with Assignee for any of the services noted in the Contracts, nor
provide any financial services or transaction processing to Customers or Future
Customers of Assignee. Description of non-compete provisions are detailed in the
Non-Compete Agreement dated as of the date hereof.
Further assurances both parties hereby agree to execute additional
documents that may be reasonably requested by the other parties to effectuate
provisions of this agreements
5. Ratification of Contracts. Assignee hereby ratifies and confirms all of
the terms and provisions of the Contracts and agrees that the Contracts remain
in full force and effect without modification, and represents and warrants that,
as of the Effective Date, the Contracts are subject to no offsets, liens,
claims, counterclaims or defenses of any nature whatsoever.
6. Modifications. This Assignment Agreement may not be changed, modified,
discharged or terminated orally or in any manner other than by a writing signed
by Assignor and Assignee or their respective successors and permitted assigns.
7. Miscellaneous. The use of headings herein is solely for the convenience
of indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of the Assignment Agreement. The
submission of the Contracts for examination does not constitute an offer or
option and the Assignment Agreement shall be effective only upon execution
hereof by all parties hereto. Time is of the essence of this Assignment
Agreement. If any clause or provision of this Assignment Agreement is illegal,
invalid or unenforceable under present or future laws, the remainder of this
Assignment Agreement shall not be affected thereby, and in lieu of each clause
or provision of this Assignment Agreement which is illegal, invalid or
unenforceable, there shall be added as a part of this Assignment Agreement a
clause or provision as nearly identical to the said clause or provision as may
be legal, valid and enforceable. This Assignment Agreement and the Asset
Purchase Agreement contains the entire Assignment Agreement of the parties with
respect to the subject matter hereof and no representations, inducements,
promises or Assignment Agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. This Assignment Agreement is
not in recordable form, and Assignor and Assignee agree not to record or cause
to be recorded this Assignment Agreement or any short form or memorandum
thereof. The laws of the State of Florida shall govern the validity, performance
and enforcement of this Assignment Agreement. Each of the persons executing this
Assignment Agreement on behalf of Assignee does hereby personally represent and
warrant that such Assignee, if a corporation, is a duly qualified corporation
and is fully authorized and qualified to do business in the State of Florida,
that the corporation has full right and authority to enter into this Assignment
Agreement, and that each person signing on behalf of the corporation is
authorized to sign on behalf of Assignee.
[Signatures continued on next page.]
IN WITNESS WHEREOF, the parties hereto have executed and sealed this
Assignment Agreement as of the date first above written.
"ASSIGNOR":
Signed, sealed and delivered PROGRESSIVE VENTURES, INC.
this _____ day of ______________,
2004, in the presence of: By:_______________________
Name:________
Title:_______
Witness_______________ Attest:______
Title:_______
[CORPORATE SEAL]
"ASSIGNEE":
Signed, sealed and delivered GLOBAL AXCESS CORPORATION
this _____ day of ______________,
2004, in the presence of: By:
Name:_________
Title:________
Witness Attest:_______
Title:________
[CORPORATE SEAL]