THIRD AMENDED AND RESTATED LOAN AGREEMENT
Wachovia Bank, National Association
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as the "Bank")
Global Axcess Corp.
000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Nationwide Money Services, Inc.
000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
EFT Integration, Inc.
000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Electronic Payment & Transfer Corp.
000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Axcess Technology Corporation
000 Xxxxx Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
(Individually and collectively "Borrower")
This Third Amended and Restated Loan Agreement ("Agreement") is entered into
October 27, 2005, by and between Bank and Borrower and amends and restates that
certain Second Amended and Restated Loan Agreement dated June 22, 2005, between
Bank and Borrower.
Borrower has applied to Bank for a loan or loans (individually and collectively,
the "Loan") evidenced by one or more promissory notes as follows:
Line of credit in the principal amount of $500,000 (the "Revolving Loan") which
is evidenced by a Renewal Promissory Note dated June 24, 2005 ("Line of Credit
Note"), under which Borrower may borrow, repay, and reborrow, from time to time,
so long as the total indebtedness outstanding at any one time does not exceed
the principal amount of the Line of Credit Note. Bank's obligation to make
advances under the Line of Credit Note shall terminate if demand is made for
payment of the Line of Credit Note or the Borrower is in Default (as defined
below) under any Loan Document, or in any event, on June 30, 2006, unless
renewed or extended by Bank in writing upon such terms then satisfactory to Bank
in its sole discretion; and
Term loan in the principal amount of $1,250,000 (the "Term Loan 1") which is
evidenced by a Promissory Note dated September 24, 2004 ("Term Note 1").
Term loan in the principal amount of $500,000 (the "Term Loan 2") which is
evidenced by a Promissory Note of even date herewith ("Term Note 2").
Term loan in the principal amount of $3,000,000 (the "Term Loan 3") which is
evidenced by a Promissory Note of even date herewith ("Term Note 3") (the Line
of Credit Note, Term Note 1, Term Note 2 and Term Note 3 are hereinafter
sometimes collectively referred to as the "Note").
The proceeds of Term Loan 1 were to be used by Borrower to finance business
acquisitions. The proceeds of Term Loan 2 are to be used by Borrower to pay down
the $500,000.00 line of credit promissory note dated July 7, 2004. The proceeds
of Term Loan 3 are to be used by Borrower to finance the acquisition of
Amer-E-Com Digital Corporation.
The term "Loan Documents", as used in this Agreement, shall mean, collectively,
the Loan Documents as that term is defined in the Line of Credit Note, Term Note
1, Term Note 2 and Term Note 3, and the term "Obligations", as used in this
Agreement, shall mean, collectively, the Obligations as that term is defined in
the Line of Credit Note, Term Note 1, Term Note 2 and Term Note 3.
Relying upon the covenants, agreements, representations and warranties contained
in this Agreement, Bank is willing to extend credit to Borrower upon the terms
and subject to the conditions set forth herein, and Bank and Borrower agree as
follows:
REPRESENTATIONS. Accurate Information. All information now and hereafter
furnished to Bank is and will be true, correct and complete. Any such
information relating to Borrower's financial condition will accurately reflect
Borrower's financial condition as of the date(s) thereof (including all
contingent liabilities of every type), and Borrower further represents that its
financial condition has not changed materially or adversely since the date(s) of
such documents. Authorization; Non-Contravention. The execution, delivery and
performance by Borrower, of this Agreement and other Loan Documents to which it
is a party are within its power, have been duly authorized as may be required
and, if necessary, by making appropriate filings with any governmental agency or
unit and are the legal, binding, valid and enforceable obligations of Borrower;
and do not (i) contravene, or constitute (with or without the giving of notice
or lapse of time or both) a violation of any provision of applicable law, a
violation of the organizational documents of Borrower, or a default under any
agreement, judgment, injunction, order, decree or other instrument binding upon
or affecting Borrower, (ii) result in the creation or imposition of any lien
(other than the lien(s) created by the Loan Documents) on any of Borrower's
assets, or (iii) give cause for the acceleration of any obligations of Borrower
to any other creditor. Asset Ownership. Borrower has good and marketable title
to all of the properties and assets reflected on the balance sheets and
financial statements supplied Bank by Borrower, and all such properties and
assets are free and clear of mortgages, security deeds, pledges, liens, charges,
and all other encumbrances, except as otherwise disclosed to Bank by Borrower in
writing and approved by Bank ("Permitted Liens"). To Borrower's knowledge, no
default has occurred under any Permitted Liens and no claims or interests
adverse to Borrower's present rights in its properties and assets have arisen.
Discharge of Liens and Taxes. Borrower has duly filed, paid and/or discharged
all taxes or other claims which may become a lien on any of its property or
assets, except to the extent that such items are being appropriately contested
in good faith and an adequate reserve for the payment thereof is being
maintained. Sufficiency of Capital. Borrower is not, and after consummation of
this Agreement and after giving effect to all indebtedness incurred and liens
created by Borrower in connection with the Note and any other Loan Documents,
will not be, insolvent within the meaning of 11 U.S.C. ss. 101(32). Compliance
with Laws. Borrower is in compliance in all respects with all federal, state and
local laws, rules and regulations applicable to its properties, operations,
business, and finances, including, without limitation, any federal or state laws
relating to liquor (including 18 U.S.C. ss. 3617, et seq.) or narcotics
(including 21 U.S.C. ss. 801, et seq.) and/or any commercial crimes; all
applicable federal, state and local laws and regulations intended to protect the
environment; and the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), if applicable. Organization and Authority. Borrower is duly created,
validly existing and in good standing under the laws of the state of its
organization, and has all powers, governmental licenses, authorizations,
consents and approvals required to operate its business as now conducted.
Borrower is duly qualified, licensed and in good standing in each jurisdiction
where qualification or licensing is required by the nature of its business or
the character and location of its property, business or customers, and in which
the failure to so qualify or be licensed, as the case may be, in the aggregate,
could have a material adverse effect on the business, financial position,
results of operations, properties or prospects of Borrower. No Litigation. There
are no pending or threatened suits, claims or demands against Borrower that have
not been disclosed to Bank by Borrower in writing, and approved by Bank.
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AFFIRMATIVE COVENANTS. Borrower agrees that from the date hereof and until final
payment in full of the Obligations, unless Bank shall otherwise consent in
writing, Borrower will: Access to Books and Records. Allow Bank, or its agents,
during normal business hours, access to the books, records and such other
documents of Borrower as Bank shall reasonably require, and allow Bank, at
Borrower's expense, to inspect, audit and examine the same and to make extracts
therefrom and to make copies thereof. Business Continuity. Conduct its business
in substantially the same manner and locations as such business is now and has
previously been conducted. Compliance with Other Agreements. Comply with all
terms and conditions contained in this Agreement, and any other Loan Documents,
and swap agreements, if applicable, as defined in the 11 U.S.C. ss. 101, as in
effect from time to time. Estoppel Certificate. Furnish, within 15 days after
request by Bank, a written statement duly acknowledged of the amount due under
the Loan and whether offsets or defenses exist against the Obligations.
Insurance. Maintain adequate insurance coverage with respect to its properties
and business against loss or damage of the kinds and in the amounts customarily
insured against by companies of established reputation engaged in the same or
similar businesses including, without limitation, commercial general liability
insurance, workers compensation insurance, and business interruption insurance;
all acquired in such amounts and from such companies as Bank may reasonably
require. Maintain Properties. Maintain, preserve and keep its property in good
repair, working order and condition, making all replacements, additions and
improvements thereto necessary for the proper conduct of its business, unless
prohibited by the Loan Documents. Notice of Default and Other Notices. (a)
Notice of Default. Furnish to Bank immediately upon becoming aware of the
existence of any condition or event which constitutes a Default (as defined in
the Loan Documents) or any event which, upon the giving of notice or lapse of
time or both, may become a Default, written notice specifying the nature and
period of existence thereof and the action which Borrower is taking or proposes
to take with respect thereto. (b) Other Notices. Promptly notify Bank in writing
of (i) any material adverse change in its financial condition or its business;
(ii) any default under any material agreement, contract or other instrument to
which it is a party or by which any of its properties are bound, or any
acceleration of the maturity of any indebtedness owing by Borrower; (iii) any
material adverse claim against or affecting Borrower or any part of its
properties; (iv) the commencement of, and any material determination in, any
litigation with any third party or any proceeding before any governmental agency
or unit affecting Borrower; and (v) at least 30 days prior thereto, any change
in Borrower's name or address as shown above, and/or any change in Borrower's
structure. Other Financial Information. Deliver promptly such other information
regarding the operation, business affairs, and financial condition of Borrower
which Bank may reasonably request. Payment of Debts. Pay and discharge when due,
and before subject to penalty or further charge, and otherwise satisfy before
maturity or delinquency, all obligations, debts, taxes, and liabilities of
whatever nature or amount, except those which Borrower in good faith disputes.
Reports and Proxies. Deliver to Bank, promptly, a copy of all financial
statements, reports, notices, and proxy statements, sent by Borrower to
stockholders, and all regular or periodic reports required to be filed by
Borrower with any governmental agency or authority.
NEGATIVE COVENANTS. Borrower agrees that from the date hereof and until final
payment in full of the Obligations, unless Bank shall otherwise consent in
writing, Borrower will not: Nonpayment; Nonperformance. Fail to pay or perform
the Obligations or Default (as defined in the Loan Documents) under any of the
Loan Documents. Cross Default. Default in payment or performance of any
obligation under any other loans, contracts or agreements of Borrower, any
Subsidiary or Affiliate of Borrower ("Affiliate" shall have the meaning as
defined in 11 U.S.C. ss. 101, except that the term "debtor" therein shall be
substituted by the term "Borrower" herein, and "Subsidiary" shall mean any
corporation of which more than 50% of the issued and outstanding voting stock is
owned directly or indirectly by Borrower), any general partner of the holder(s)
of the majority ownership interests of Borrower with Bank or its affiliates.
Material Capital Structure or Business Alteration. Materially alter the type or
kind of Borrower's business or that of its Subsidiaries or Affiliates, if any,
or suffer or permit the acquisition of substantially all of Borrower's business
or assets, or a material portion (10% or more) of such business or assets if
such a sale is outside Borrower's ordinary course of business, or more than 50%
of its outstanding stock or voting power in a single transaction or a series of
transactions. Prepayment of Other Debt. Retire any long-term debt entered into
prior to the date of this Agreement at a date in advance of its legal obligation
to do so. Change in Fiscal Year. Change its fiscal year without the prior
written consent of the Bank. Default on Other Contracts or Obligations. Default
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on any material contract with or obligation when due to a third party or default
in the performance of any obligation to a third party incurred for money
borrowed. Government Intervention. Permit the assertion or making of any
seizure, vesting or intervention by or under authority of any governmental
entity, as a result of which the management of Borrower or any guarantor is
displaced of its authority in the conduct of its respective business or such
business is curtailed or materially impaired. Encumbrances. Create, assume, or
permit to exist any mortgage, security deed, deed of trust, pledge, lien, charge
or other encumbrance on any of its assets, whether now owned or hereafter
acquired, other than: (i) security interests required by the Loan Documents;
(ii) liens for taxes contested in good faith; (iii) liens accruing by law for
employee benefits; (iv) liens granted pursuant to capitalized leases entered
into in connection with the acquisition of automated teller machines ("ATMs");
or (v) Permitted Liens. Limitation on Debt. Directly or indirectly create,
incur, assume or become liable for any additional indebtedness, whether
contingent or direct, other than (i) indebtedness approved by Bank, such
approval not to be unreasonably withheld, and (ii) obligations of the Borrower
not exceeding $5,000,000 in aggregate amount outstanding at any time incurred
under capitalized leases entered into in connection with the acquisition of
ATMs. Judgment Entered. Permit the entry of any monetary judgment or the
assessment against, the filing of any tax lien against, or the issuance of any
writ of garnishment or attachment against any property of or debts due. Retire
or Repurchase Capital Stock. Retire or otherwise acquire any of its capital
stock.
ANNUAL FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 120 days
after the close of each fiscal year, audited financial statements reflecting its
operations during such fiscal year, including, without limitation, a balance
sheet, profit and loss statement and statement of cash flows, with supporting
schedules; all on a consolidated and consolidating basis with respect to
Borrower and its subsidiaries, affiliates and parent or holding company, as
applicable, and in reasonable detail, prepared in conformity with generally
accepted accounting principles, applied on a basis consistent with that of the
preceding year. All such statements shall be examined by an independent
certified public accountant acceptable to Bank. The opinion of such independent
certified public accountant shall not be acceptable to Bank if qualified due to
any limitations in scope imposed by Borrower or any other person or entity. Any
other qualification of the opinion by the accountant shall render the
acceptability of the financial statements subject to Bank's approval.
PERIODIC FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 45 days
after the end of each fiscal quarter, unaudited management-prepared quarterly
financial statements including, without limitation, a balance sheet, profit and
loss statement and statement of cash flows, with supporting schedules; all on a
consolidated and consolidating basis with respect to Borrower and its
subsidiaries, affiliates and parent or holding company, as applicable, all in
reasonable detail and prepared in conformity with generally accepted accounting
principles, applied on a basis consistent with that of the preceding year. Such
statements shall be certified as to their correctness by a principal financial
officer of Borrower and in each case, if audited statements are required,
subject to audit and year-end adjustments, and shall be accompanied by a
Compliance Certificate in the form attached as Exhibit A. .
FINANCIAL COVENANTS. Debt Service Coverage Ratio. Borrower shall, at all times,
maintain a Debt Service Coverage Ratio of not less than 1.25 to 1.00, to be
calculated quarterly, on a rolling four quarters basis. "Debt Service Coverage
Ratio" means the ratio of (i) the sum of net income (determined in accordance
with generally accepted accounting principles) plus interest expense on all
Funded Debt, divided by (ii) the aggregate principal maturities and interest
expense on all Funded Debt, all for the preceding four quarters. For the
purposes of this calculation, "Funded Debt" shall mean, as applied to any person
or entity, the sum of all indebtedness for borrowed money, (including, without
limitation, capital lease and synthetic lease obligations, subordinated debt
(including debt subordinated to the Bank), and unreimbursed drawings under
letters of credit), or any other monetary obligation evidenced by a note, bond,
debenture or other agreement or similar instrument of that person or entity.
Senior Funded Debt to EBITDA Ratio. Borrower shall at all times maintain a
Senior Funded Debt to EBITDA Ratio of not more than 2.00 to 1.00 on or before
December 31, 2006, and not more than 1.50 to 1.00 thereafter. This covenant
shall be calculated quarterly, on a rolling four quarters basis. "Senior Funded
Debt to EBITDA Ratio" shall mean the sum of all Senior Funded Debt divided by
the sum of earnings before interest, taxes, depreciation and amortization.
"Senior Funded Debt" shall mean, as applied to any person or entity, the sum of
all indebtedness for borrowed money, including, without limitation, capital
lease and synthetic lease obligations and unreimbursed drawings under letters of
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credit, or any other monetary obligation evidenced by a note, bond, debenture or
other agreement or similar instrument of that person or entity, excluding any
debt fully subordinated to Bank on terms and conditions acceptable to Bank.
Senior Liabilities to Effective Tangible Net Worth Ratio. Borrower shall at all
times, maintain a ratio of Senior Liabilities to Effective Tangible Net Worth of
not more than 2.50 to 1.00 on or before December 31, 2005 and not more than 2.00
to 1.00 thereafter. This covenant shall be calculated quarterly. "Senior
Liabilities" shall mean the sum of Total Liabilities, including capitalized
leases and all reserves for deferred taxes and other deferred sums appearing on
the liabilities side of a balance sheet, and all obligations as lessee under
off-balance sheet synthetic leases, all in accordance with generally accepted
accounting principles applied on a consistent basis, excluding debt fully
subordinated to Bank on terms and conditions acceptable to Bank. "Effective
Tangible Net Worth" shall mean total assets minus Senior Liabilities, but in no
event shall Effective Tangible Net Worth, for purposes of this calculation, be
less than $1.00. For purposes of this computation, the aggregate amount of any
intangible assets of Borrower including without limitation, merchant contracts,
goodwill, franchises, licenses, patents, trademarks, trade names, copyrights,
service marks, and brand names, shall be subtracted from total assets. "Total
Liabilities" shall mean all liabilities of Borrower, including capitalized
leases and all reserves for deferred taxes, debt fully subordinated to Bank on
terms and conditions acceptable to Bank, and other deferred sums appearing on
the liabilities side of a balance sheet, and all obligations as lessee under
off-balance sheet synthetic leases, of Borrower, all in accordance with
generally accepted accounting principles applied on a consistent basis. Deposit
Relationship. The Borrower shall maintain its primary depository account with
the Bank.
DEFAULT. If any of the following occurs, a default ("Default") under this
Agreement shall exist: Nonpayment; Nonperformance. The failure of timely payment
or performance of the Obligations or Default under this Agreement or any other
Loan Document. False Warranty. A warranty or representation made or deemed made
in the Loan Documents or furnished Bank in connection with the loan evidenced by
this Agreement proves materially false, or if of a continuing nature, becomes
materially false. Cross Default. At Bank's option, any default in payment or
performance of any obligation under any other loans, contracts or agreements of
Borrower, any Subsidiary or Affiliate of Borrower, any general partner of or the
holder(s) of the majority ownership interests of Borrower with Bank or its
affiliates ("Affiliate" shall have the meaning as defined in 11 U.S.C. ss. 101,
as in effect from time to time, except that the term "Borrower" shall be
substituted for the term "Debtor" therein; "Subsidiary" shall mean any business
in which Borrower holds, directly or indirectly, a controlling interest).
Cessation; Bankruptcy. The death of, appointment of a guardian for, dissolution
of, termination of existence of, loss of good standing status by, appointment of
a receiver for, assignment for the benefit of creditors of, or commencement of
any bankruptcy or insolvency proceeding by or against Borrower, its Subsidiaries
or Affiliates, if any, or any general partner of or the holder(s) of the
majority ownership interests of Borrower, or any party to the Loan Documents.
Material Capital Structure or Business Alteration. Without prior written consent
of Bank, (i) a material alteration in the kind or type of Borrower's business or
that of Borrower's Subsidiaries or Affiliates, if any; and (ii) the sale of
substantially all of the business or assets of Borrower, any of Borrower's
Subsidiaries or Affiliates or any guarantor, or a material portion (10% or more)
of such business or assets if such a sale is outside the ordinary course of
business of Borrower, or any of Borrower's Subsidiaries or Affiliates or any
guarantor, or more than 50% of the outstanding stock or voting power of or in
any such entity in a single transaction or a series of transactions. Material
Adverse Change. Bank determines in good faith, in its sole discretion, that the
prospects for payment or performance of the Obligations are impaired or there
has occurred a material adverse change in the business or prospects of Borrower,
financial or otherwise. Default under Master Lease. The occurrence of a default
under that Master Equipment Lease Agreement between Borrower and First Union
Commercial Corporation or its nominee dated August 4, 2004, as amended or
modified from time to time. Material Contracts. The termination of the
Borrower's contract with STAR Network.
THE FOREGOING ENUMERATION OF EVENTS OF DEFAULT NOTWITHSTANDING, NOTHING HEREIN
SHALL BE DEEMED TO LIMIT, RESTRICT, IMPAIR OR DIMINISH THE ABSOLUTE RIGHT OF
BANK TO DEMAND PAYMENT OF THE REVOLVING LOAN IN FULL, AT ANY TIME, WITHOUT
CAUSE.
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REMEDIES UPON DEFAULT. If a Default occurs under this Agreement or any other
Loan Document, Bank may at any time thereafter, take the following actions: Bank
Lien. Foreclose its security interest or lien against Borrower's accounts
without notice. Acceleration Upon Default. Accelerate the maturity of the Term
Note and, at Bank's option, any or all other Obligations, other than Obligations
under any swap agreements (as defined in 11 U.S.C. ss. 101, as in effect from
time to time) between Borrower and Bank, or its affiliates, which shall be due
in accordance with and governed by the provisions of said swap agreements;
whereupon the Term Note and the accelerated Obligations shall be immediately due
and payable; provided, however, if the Default is based upon a bankruptcy or
insolvency proceeding commenced by or against Borrower or any guarantor or
endorser of this Note, all Obligations (other than Obligations under any swap
agreement as referenced above) shall automatically and immediately be due and
payable. Cumulative. Exercise any rights and remedies as provided under the Note
and other Loan Documents, or as provided by law or equity.
REAFFIRMATION OF SECURITY AGREEMENT. The Note, this Agreement and all Loan
Documents shall be secured by that certain Security Agreement between Borrower
and Bank as of July 7, 2004.
NO THIRD PARTY BENEFICIARY. The parties hereto do not intend the benefits of
this Agreement to inure to any third party. Notwithstanding anything contained
in this Agreement or any other Loan Document, or any course of conduct by any of
the parties hereto, this Agreement shall not be construed as creating any
rights, claims, or causes of action against Bank, or any of its officers,
agents, or employees, in favor of any contractor, subcontractor, supplier of
labor, materials or services, or any of their respective creditors, or any other
person or entity other than Borrower.
CONDITIONS PRECEDENT. The obligations of Bank to make the loan and any advances
pursuant to this Agreement are subject to the following conditions precedent:
Additional Documents. Receipt by Bank of such additional supporting documents as
Bank or its counsel may reasonably request.
IN WITNESS WHEREOF, Borrower and Bank, on the day and year first written above,
have caused this Agreement to be executed under seal.
Global Axcess Corp., a Nevada corporation
By: ____________________________________(SEAL)
Name: Xxxxx X. Xxxxxxx
Its: Chief Financial Officer
Nationwide Money Services, Inc., a Nevada corporation
By: ____________________________________(SEAL)
Name: Xxxxx X. Xxxxxxx
Its: Chief Financial Officer
EFT Integration, Inc., a Florida corporation
By: ____________________________________(SEAL)
Name: Xxxxx X. Xxxxxxx
Its: Chief Financial Officer
Electronic Payment & Transfer Corp., a Nevada corporation
By: ____________________________________(SEAL)
Name: Xxxxx X. Xxxxxxx
Its: Chief Financial Officer
[Signatures continued on next page.]
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Axcess Technology Corporation, a Nevada corporation
By: ____________________________________(SEAL)
Name: Xxxxx X. Xxxxxxx
Its: Chief Financial Officer
Wachovia Bank, National Association
By: __________________________________________(SEAL)
Name:
-----------------------------------------
Its: Vice President
-----------------------------
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EXHIBIT A
