SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement") is made as of October
27, 2005, by and among WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association (the "Senior Lender"), the lenders listed on Schedule A attached
hereto (each a "Junior Lender", and collectively, the "Junior Lenders"), and
GLOBAL AXCESS CORP, a Nevada corporation (the "Borrower").
RECITALS
A. The Senior Lender has made certain credit available to the
Borrower and certain of its affiliates and intends to make certain additional
credit available to the Borrower and its affiliates pursuant to the terms and
provisions of the Third Amended and Restated Loan Agreement, dated as of October
27, 2005 (as amended, modified or amended and restated from time to time, the
"Loan Agreement"), by and among the Senior Lender, the Borrower, Nationwide
Money Services, Inc. ("Nationwide"), EFT Integration, Inc. ("EFT"), Electronic
Payment & Transfer Corp. ("Electronic"), and Axcess Technology Corporation
("Axcess", and together with Nationwide, EFT, and Electronic; collectively the
"Co-Borrowers");
B. The Junior Lenders intend to make certain credit available
to the Borrower pursuant to the terms and provisions of certain 9% Senior
Subordinated Secured Convertible Notes, dated as of October 27, 2005, by and
between the Junior Lenders and the Borrower, each in the principal amount set
forth opposite the Junior Lender's name on Schedule A, and in connection
therewith the Co-Borrowers will be required to guarantee the payment and
performance of certain obligations of the Borrower pursuant to the Junior Notes
(as defined below), the Securities Purchase Agreement (as defined below) and
certain other obligations pursuant to a Subsidiary Guarantee dated October 27,
2005 (the "Junior Guaranty"); and
C. It is a condition to the Senior Lender's obligations to
furnish credit to the Borrower that the Junior Lenders enter into this
Agreement;
NOW, THEREFORE, in consideration of the above recitals and the
provisions set forth herein, and other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows, intending to be legally bound:
AGREEMENT
Section 1. Definitions. For purpose of this Agreement, the following
terms used herein shall have the following meanings:
"Collateral" means any and all property which now constitutes or
hereafter will constitute collateral or other security for payment of the Senior
Debt pursuant to the Senior Loan Documents.
"Default" means a default or event of default under the Junior Notes,
or any of them, or under any other instrument or agreement evidencing the Junior
Debt.
"Junior Debt" means all indebtedness, obligations, and liabilities of
the Borrower or any Co-Borrower or guarantor to the Junior Lenders, whether
under the Junior Note, the Securities Purchase Agreement, the Junior Guaranty,
the Junior Security Agreement, any other Security Document (as defined in the
Securities Purchase Agreement), the Registration Rights Agreement (as defined in
Securities Purchase Agreement), or otherwise, including, without limitation, all
principal and interest (including, without limitation, any interest accruing
after the filing of any petition in bankruptcy or the commencement of any
Proceeding, whether or not a claim for post-filing or post-petition interest is
allowed in such Proceeding) and late fees payable thereunder, and any obligation
to redeem, repurchase or otherwise acquire any Junior Securities.
"Junior Guaranty" has the meaning ascribed thereto in the Recitals.
"Junior Notes" means those certain 9% Senior Subordinated Secured
Convertible Notes, dated as of October 27, 2005, of the Borrowers in favor of
the Junior Lenders, dated the date hereof, in the aggregate original principal
amount of $3,500,000 and all note(s) issued in substitution therefor.
"Junior Securities" means any securities (including common stock,
warrants or other equity securities), issued pursuant to the Securities Purchase
Agreement or upon conversion of the Junior Notes or in exchange for any of the
Junior Debt.
"Junior Security Agreement" means the Security Agreement dated October
27, 2005, by the Borrower and Co-Borrowers in favor of the Junior Lenders
granting the Junior Lenders a security interest in certain collateral to secure
the payment and performance of the Junior Debt.
"Person" means any corporation, association, joint venture,
partnership, limited liability company, organization, business, individual,
trust, government or agency or political subdivision thereof, or any other legal
entity.
"Proceeding" means (a) any insolvency, bankruptcy, receivership,
custodianship, liquidation, reorganization, readjustment, composition, or other
similar proceeding relating to Borrower or any Co-Borrower or any of their
respective properties, whether under any bankruptcy, reorganization, or
insolvency laws or any law relating to relief of debtors, readjustment of
indebtedness, reorganization, composition, or extension; (b) any proceeding for
the liquidation, liquidating distribution, dissolution, or other winding up of
Borrower or any Co-Borrower, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings; (c) any assignment for the benefit of
creditors of Borrower or any Co-Borrower; or (d) any other marshalling of the
assets of Borrower or any Co-Borrower.
"Remedy" means, with respect to a Default, the acceleration of any
Junior Note or the exercise of any remedies in respect of such Default
(including, without limitation, the right to xxx the Borrower or any
Co-Borrower, to exercise any right of set off, to put or otherwise tender for
repurchase any Junior Notes or Junior Securities, and to file or participate in
any involuntary bankruptcy proceeding against the Borrower or any Co-Borrower,
and explicitly including the imposition of default rate interest).
"Securities Purchase Agreement" means that certain Securities Purchase
Agreement, dated as of the date hereof, among the Junior Lenders and the
Borrower.
"Senior Debt" means all of the following: (a) the aggregate principal
indebtedness outstanding from time to time under the Loan Agreement, (b) all
interest accrued and accruing on such aggregate principal amounts from time to
time (including, without limitation, any interest accruing after the filing of
any petition in bankruptcy or the commencement of any Proceeding, whether or not
a claim for post-filing or post-petition interest is allowed in such
Proceeding), (c) all other costs, fees, and expenses owed from time to time
under the Senior Loan Documents and (d) all other liabilities, indebtedness and
obligations of Borrower or any Co-Borrower to the Senior Lender, whether now
existing or hereafter arising, direct or indirect, contingent or non-contingent,
secured or unsecured, due or not due.
"Senior Event of Default" means the occurrence and continuance of an
"Event of Default" under the Senior Loan Documents.
"Senior Loan Documents" means the Loan Agreement, the Senior Note, and
the other Loan Documents (as defined in the Loan Agreement), as they may be
amended, modified, extended, or amended and restated from time to time.
"Senior Note" means the Note (as defined in the Loan Agreement) and any
other promissory note executed and delivered by the Borrower or any Co-Borrower
to the Senior Lender from time to time, as amended, modified, renewed or
extended from time to time.
Section 2. General.
The Borrower and each Co-Borrower and the Junior Lender agree that on
the terms and conditions herein the payment of the Junior Debt by the Borrower
or any Co-Borrower is subordinated, to the extent and in the manner provided in
this Agreement, to the prior payment in full of all the Senior Debt; provided,
however, the failure of the Borrower or any Co-Borrower to make a payment of any
of the Junior Debt by reason of any provision of this Agreement shall not be
construed as preventing the occurrence of a Default with respect to the Junior
Debt. Notwithstanding the foregoing, except as provided in Section 3, the
Borrower may pay, and the Junior Lender may retain, all scheduled interest
payments under the Note at non-default interest rates. Nothing herein shall be
deemed to prohibit the accrual of default interest (to the extent it exceeds the
non-default interest rate), late fees or other liquidated damage amounts,
provided that such amounts shall only be paid with the consent of the Senior
Lender or upon the payment in full of all of the Senior Debt.
Section 3. Subordination in the Event of Certain Senior Debt Defaults.
If a Senior Event of Default occurs and is continuing or a Blockage
Period (as defined below) exists (a "Senior Payment Blockage Period"), then
during the period (such period, the "Blockage Period") (x) commencing on the
date that the Senior Lender gives a written notice to the Borrower, the
Co-Borrowers and the Junior Lender identifying the Senior Event of Default or
stating that a Senior Payment Blockage Period is in effect and stating that a
Blockage Period will commence (the "Blockage Notice") and (y) ending on the
earliest to occur of:
(i) the date, if any, on which the Senior Debt is indefeasibly
paid in full;
(ii) the date on which the Borrower, the Co-Borrowers and the
Junior Lender receive from the Senior Lender a written notice that (A)
the Blockage Period has been terminated; or (B) that the Senior Event
of Default is cured or waived in accordance with the Senior Loan
Documents; and
(iii) the date that is 180 days after the Blockage Notice was
given,
no payment shall be made by or on behalf of the Borrower or any Co-Borrowers on
account of the Junior Debt. Upon the expiration of a Blockage Period, the
Borrower or any Co-Borrower may make, and the Junior Lender shall be entitled to
retain, all payments to the Junior Lender that were prohibited during the
Blockage Period; provided that such payments shall include interest payments at
the non-default rate. Any interest accruing at a rate in excess of the
non-default rate after the expiration of a Blockage Period shall be paid only
with the prior written consent of the Senior Lender, in its sole discretion. No
Senior Event of Default that formed the basis for a Blockage Period shall serve
as the basis for the commencement of any subsequent Blockage Period unless such
Senior Event of Default is cured or waived for a period of 90 consecutive days.
Section 4. Subordination in the Event of a Proceeding.
Upon any distribution of assets of the Borrower or any Co-Borrower upon
any Proceeding:
(i) the Senior Lender shall first be entitled to receive payments
in full of the Senior Debt in cash, property or securities (with any
such property or securities being valued based on its fair market value
after deducting liquidation and sale expenses) before the Junior Lender
is entitled to receive any payment (other than Junior Securities) on
account of the Junior Debt;
(ii) any payment or distribution of assets of the Borrower or any
Co-Borrower of any kind or character, whether in cash, property, or
securities (other than Junior Securities) to which the Junior Lender
would be entitled except for the provisions of this Agreement, shall be
paid by the liquidating trustee or agent or other Person making such a
payment or distribution, directly to the Senior Lender, to the extent
necessary to pay the Senior Debt in full in cash, property or
securities (valued as provided in subsection (i) above) after giving
effect to all concurrent payments and distributions; and
(iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Borrower or any Co-Borrower of
any kind or character, whether in cash, property, or securities (other
than Junior Securities), shall be received by the Junior Lender on
account of the Junior Debt before the Senior Debt is paid in full in
cash, property or securities (valued as provided in subsection (i)
above), such payment or distribution shall be received and held in
trust by the Junior Lender for the benefit of the Senior Lender, to the
extent necessary to pay the Senior Debt in full in cash, property or
securities (valued as provided in subsection (i) above) after giving
effect to all concurrent payments and distributions.
The Borrower or any Co-Borrower shall give written notice to the Senior Lender
and the Junior Lender within three days of receipt of notice of any Proceeding.
Section 5. Remedy Standstill.
The Junior Lender shall not exercise any Remedy in respect of any
Default until the earliest of (i) the date the Senior Debt has been paid in
full, (ii) the date a Proceeding is commenced, (iii) the date the Senior Debt
has been accelerated in writing, (iv) at least one hundred and eighty (180) days
shall have elapsed after Senior Lender's receipt of a written notice from the
Junior Lender stating that the Junior Lender intends to commence an action
against the Borrower or any Co-Borrower by reason of a Default, or (v) such time
as Senior Lender consents in writing to the termination of the Standstill Period
(the "Standstill Period"). Upon the termination of any Standstill Period, then
the Junior Lender may, at its sole election, exercise any and all Remedies
available to it under applicable law.
Section 6. Payments Held in Trust, Subrogation, Right to Cure and
Purchase.
(i) If any payment or distribution of assets on account of the
Junior Debt shall be made by the Borrower or any Co-Borrower or
received by the Junior Lender (x) at a time when such payment or
distribution was prohibited by the provisions of this Agreement or (y)
in connection with any indemnity claim under the Securities Purchase
Agreement (including Section 4.11 of the Securities Purchase Agreement)
(any payment received in connection with such indemnity claim, an
"Indemnity Payment"), then such payment or distribution shall be
received and held in trust by the Junior Lender for the benefit of the
Senior Lender and shall be paid or delivered by the Junior Lender to
the Senior Lender to the extent necessary to enable payment in full of
the Senior Debt.
(ii) After the payment in full of all Senior Debt, the Junior
Lender shall be subrogated to the rights of the holders of such Senior
Debt to receive payments or distributions of assets of the Borrower or
any Co-Borrower applicable to the Senior Debt until all amounts owing
on the Junior Debt plus the Indemnity Payment (plus interest as set
forth above) shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders of the
Senior Debt by or on behalf of the Borrower or any Co-Borrower, or by
or on behalf of the Junior Lender by virtue of this Agreement, that
otherwise would have been made to the Junior Lender shall, as between
the Borrower and the Junior Lender, be deemed to be payment by the
Borrower to or on account of the Senior Debt in respect thereof, it
being understood that the provisions of this Agreement are and are
intended solely for the purpose of defining the relative rights of the
Junior Lender, on the one hand, and the holders of such Senior Debt, on
the other hand. If any payment or distribution to which the Junior
Lender would otherwise have been entitled but for the provisions of
this Agreement shall have been applied, pursuant to the provisions of
this Agreement, to the payment of amounts payable under the Senior
Debt, then the Junior Lender shall be entitled to receive from the
holders of the Senior Debt any payments or distributions received by
such holders of the Senior Debt in excess of the amount sufficient to
pay all amounts payable under or in respect of such Senior Debt in
full.
(iii) The Senior Lender hereby grants the Junior Lender the right,
but not the obligation, to cure any and all defaults under the Senior
Debt (to the extent any such defaults are curable) within the same
period of time afforded the Borrower or any Co-Borrower for curing such
defaults before the same become Senior Events of Default. The Senior
Lender shall have no obligation hereunder, however, to provide notice
of any Senior Event of Default to the Junior Lender, and the lack of
any such notice shall not affect the existence or occurrence of any
Event of Default.
Section 7. No Prejudice or Impairment.
Nothing contained in this Agreement, is intended to or shall impair, as
between the Borrower or any Co-Borrowers and the Junior Lender, the obligation
of the Borrower or any Co- Borrowers, which is absolute and unconditional, to
pay to the Junior Lender the Junior Debt as and when the same shall become due
and payable in accordance with its terms, or is intended to or shall affect the
relative rights of the Junior Lender and creditors of the Borrower or any
Co-Borrowers (other than the holders of the Senior Debt).
Section 8. Proofs of Claim.
In connection with any Proceeding involving any Borrower, the Junior
Lender is entitled to file proofs of claim in respect of the Junior Debt. Upon
the failure of the Junior Lender to take any such action as of the fifteenth
Business Day preceding the bar date for the filing of proofs of claims, the
Senior Lender is hereby irrevocably authorized and empowered, but shall have no
obligation to file proofs of claim with respect to the Junior Debt.
Notwithstanding the foregoing, the Senior Lender shall not have any right
whatsoever to vote any claim that the Junior Lender may have in the Proceeding
to accept or reject any plan or partial or complete liquidation, reorganization,
arrangement, composition, or extension; provided, that the Junior Lender shall
not vote with respect to any such plan or take any other action in any way so as
to contest (i) the relative rights and duties of the Senior Lender under the
Senior Loan Documents with respect to any collateral or guaranties or (ii) the
Junior Lender's obligations and agreements set forth in this Agreement.
Section 9. Benefit of Agreement; Amendments of Certain Documents; etc.
This Agreement shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become a Senior Lender, and such provisions
are made for the benefit of each subsequent Senior Lender and each of them may
enforce such provisions.
The Senior Loan Documents may be amended, supplemented, waived,
altered, modified, or otherwise changed in any manner approved by the Senior
Lender and the Borrower or any Co-Borrower without the consent or approval of
the Junior Lender. The Junior Loan Documents may be amended, supplemented,
waived, altered, modified, or otherwise changed in any manner approved by the
Junior Lender and the Borrower or any Co-Borrower, except that the Junior Lender
shall not, without the prior written approval of the Senior Lender, amend the
Junior Loan Documents if the effect of such amendment is to (1) increase the
interest rate other than as a result of the application of a default rate of
interest; (2) provide for any loan or similar fees to be paid by the Borrower or
any Co-Borrower; (3) accelerate the amortization or maturity date of any
payments of principal or any other amounts; (4) change any other repayment
provisions or provide for any collateral, guaranty, or pledge (other than as
required by the Junior Loan Documents as in effect on the Closing Date); or (5)
add or modify any covenant in the Junior Loan Documents in a manner so as to
make it more restrictive on the Borrower or any Co-Borrower.
The Senior Lender shall have no obligation to preserve rights in the
Collateral against any prior parties or to marshal any of the Collateral for the
benefit of any Person. No failure to exercise, and no delay in exercising on the
part of any party hereto, any right, power, or privilege under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power, or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies provided in this Agreement are cumulative and
shall not be exclusive of any rights or remedies provided by law.
Except as expressly set forth herein, there shall be no third party
beneficiaries of this Agreement.
Section 10. Further Agreements Concerning the Collateral and Senior
Debt.
Each Junior Lender agrees that (i) it will not at any time contest the
validity, perfection, priority or enforceability of the security interests and
liens granted by the Borrower or any Co-Borrower to the Senior Lender in the
Borrower's assets; (ii) the Senior Lender may administer the Senior Debt and any
of the Senior Lender's agreements with the Borrower or any Co-Borrower in any
way the Senior Lender deems appropriate consistent with the terms and provisions
of the Senior Loan Documents, without regard to the Junior Lenders or the Junior
Debt; (iii) the Senior Lender shall have no obligation to preserve rights in the
Collateral against any prior parties or to marshal any of the Collateral for the
benefit of any Person; (iv) nothing in this Agreement shall impair or adversely
affect the manner or timing with which the Senior Lender enforces any of its
security; (vi) nothing in this Agreement shall impair or adversely affect any
right, privilege, power or remedy of the Senior Lender with respect to the
Senior Debt, the Borrower, any Co-Borrower or any assets of the Borrower or any
Co-Borrower, including without limitation, the Senior Lender's right to (x)
waive or release any of the Senior Lender's security or rights, (y) waive or
ignore any defaults by the Borrower or any Co-Borrower; and/or (z) restructure,
renew, modify, or supplement the Senior Debt or any portion thereof or any
agreement with the Borrower or any Co-Borrower relating to the Senior Debt or to
increase the outstanding principal amount of the Senior Debt by extending
additional credit to the Borrower or any Co-Borrower; and (vi) nothing contained
herein is intended to alter or deprive the Senior Lender of any of its rights as
the senior secured creditor of the Borrower and the Co-Borrowers to collect or
otherwise foreclose upon any of the Borrower's assets.
Section 11. Instrument Legend.
Any instrument evidencing any of the Junior Debt (including, without
limitation, the Junior Notes), or any portion thereof, will, on the date hereof,
have affixed to it a document conspicuously indicating that payment thereof is
subordinated to the claims of the Senior Creditor pursuant to the terms of this
Agreement: "THIS INSTRUMENT IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT
DATED AS OF OCTOBER 27, 2005 BY AND BETWEEN THE HOLDER HEREOF AND WACHOVIA BANK,
NATIONAL ASSOCIATION." Any instruments evidencing any of the Junior Debt, or any
portion thereof, which is hereafter executed by the Borrower or any Co-Borrower,
will, on the date thereof, be inscribed with the aforesaid legend, and copies of
such instrument will be delivered to the Senior Lender on the date of its
execution or within five (5) business days thereafter and the original of such
instrument will be delivered to the Senior Lender upon request therefor to the
Senior Lender after the occurrence of a Senior Event of Default.
Section 12. Representations and Warranties.
Each of the parties hereto hereby represents and warrants that (i) it has full
power, authority and legal right to make and perform this Agreement and (ii)
this Agreement is its legal, valid, and binding obligation, enforceable against
it in accordance with its terms.
Section 13. Amendment. Neither this Agreement nor any of the terms
hereof may be amended, waived, discharged, or terminated unless such amendment,
waiver, discharge, or termination is in writing signed by the Senior Lender and
the Junior Lender.
Section 14. Successors and Assigns. This Agreement and the terms,
covenants, and conditions hereof shall be binding upon and inure to the benefit
of the parties hereto, and their respective successors and assigns, and neither
the Senior Debt nor the Junior Debt shall be sold, assigned, or transferred
unless the assignee or transferee thereof expressly takes such debt subject to
and agrees to be bound by the terms and conditions of this Agreement.
Section 15. Governing Law. This Agreement will be construed in
accordance with and governed by the law of the State of Florida, without regard
to the choice of law principles thereof.
Section 16. Notices. Whenever it is provided herein that any notice,
demand, request, consent, approval, declaration, or other communication shall or
may be given to or served upon any of the parties by another, or whenever any of
the parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration, or other communication shall be in writing and shall be deemed to
have been duly given and received, for purposes hereof, when (i) delivered by
hand, (ii) four days after being deposited in the mail, postage prepaid, and
(iii) one Business Day after having been sent by reputable overnight courier, in
each case addressed as set forth on Annex I hereto or at such address as may be
substituted by notice given as herein provided. Failure to delay in delivering
copies of any communication to the persons designated to receive copies shall in
no way adversely affect the effectiveness of such communication.
Section 17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 18. Final Agreement. THIS AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL
AGREEMENTS BETWEEN THE PARTIES.
Section 19. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE SENIOR LENDER, THE JUNIOR LENDER AND THE BORROWERS HEREBY
IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED
THEREBY OR THE ACTIONS OF THE SENIOR LENDER OR THE JUNIOR LENDER IN THE
NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY; SIGNATURES PAGES FOLLOW.]
IN WITNESS WHEREOF, the parties hereto have caused this Subordination
Agreement to be duly executed by their proper and duly authorized officers as of
the day and year first above written.
SENIOR LENDER:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
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Its:
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JUNIOR LENDERS:
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By:
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Its:
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BORROWERS:
GLOBAL AXCESS CORP.
By:
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Its:
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NATIONWIDE MONEY SERVICES, INC.
By:
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Its:
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EFT INTEGRATION, INC.
By:
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Its:
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ELECTRONIC PAYMENT & TRANSFER CORP.
By:
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Its:
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AXCESS TECHNOLOGY CORPORATION
By:
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Its:
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ANNEX I
ADDRESSES FOR NOTICE
Senior Lender
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Wachovia Bank, National Association
---------------------------------
---------------------------------
Attn:
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with a copy to:
Xxxxx & Lardner LLP
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Junior Lender
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CAMOFI Master LDC
c/o Centrecourt Asset Management
000 Xxxxxxx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxxxx X. Xxxxxxx, General Counsel
Borrowers
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with a copy to:
