FOURTH AMENDED AND RESTATED LOAN AGREEMENT
FOURTH
AMENDED AND RESTATED LOAN AGREEMENT
Wachovia
Bank, National Association
000
Xxxxx
Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
(Hereinafter
referred to as the "Bank")
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Nationwide
Money Services, Inc.
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
EFT
Integration, Inc.
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
(Individually
and collectively "Borrower")
This
Fourth Amended and Restated Loan Agreement (“Agreement”) is entered into as of
September 28, 2007, by and between Bank and Borrower and amends and restates
in
its entirety that certain Third Amended and Restated Loan Agreement dated
October 27, 2005, by and among the Bank, the Borrower and Electronic Payment
& Transfer Corp., a Nevada corporation, and Axcess Technology Corporation, a
Nevada corporation (the
“Additional Borrower(s)”). The Additional Borrowers subsequently discontinued
operations and have voluntarily dissolved. This Agreement applies to the loan
or
loans (individually and collectively, the "Loan") evidenced by (i) that certain
Consolidated Renewal Promissory Note of even date herewith between Bank and
Borrower in the original principal sum of $2,350,000.00 and (ii) other
promissory notes, if an, from tome to time made subject hereto, as such notes
may be amended, modified or extended from time to time (whether one or more,
the
"Note") and all Loan Documents. The terms "Loan Documents" and "Obligations,"
as
used in this Agreement, are defined in the Note.
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. § 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. § 3617, et seq.) or narcotics (including 21 U.S.C. §
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.
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.
§
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. § 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
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
1.00 to 1.00, on or before December 31, 2007, and of not less than 1.25 to
1.00
at all times thereafter, 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, plus depreciation and amortization,
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 1.50 to 1.00 on or before December 31, 2007, and of not more than 1.25
to
1.00 at all times 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 EBITDA. “EBITDA”
shall mean, for any period, the sum of net income, plus interest, taxes,
depreciation and amortization expense, all as determined in accordance with
generally accepted accounting principles.
"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
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 2.75 to 1.00 on or before September 30,
2007, of not more than 2.50 to 1.00 after September 30, 2007, and on or before
December 31, 2007, of not more than 2.25 to 1.00 after December 31, 2007, and
on
or before June 30, 2008, and of not more than 2.00 to 1.00 at all times
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. § 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.
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. § 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 are and shall continue to 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.
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Global
Axcess Corp., a Nevada corporation
By:
____________________________________(SEAL)
Name:
Xxxxxxx X. Xxxxxxxx
Its: Chief
Financial Officer
Nationwide
Money Services, Inc., a Nevada corporation
By:
____________________________________(SEAL)
Name: Xxxxxxx
X. Xxxxxxxx
Its: Chief
Financial Officer
EFT
Integration, Inc., a Florida corporation
By:
____________________________________(SEAL)
Name: Xxxxxxx
X. Xxxxxxxx
Its: Chief
Financial Officer
Wachovia
Bank, National Association
By:
__________________________________________(SEAL)
Name:
X. X. Xxxxxxx, Xx.
Its:
Senior Vice President
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EXHIBIT
A
