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GAXC > SEC Filings for GAXC > Form 8-K on 31-May-2013All Recent SEC Filings

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Form 8-K for GLOBAL AXCESS CORP


31-May-2013

Entry into a Material Definitive Agreement, Creation of a Direct Financial Obl


Item 1.01 Entry into a Material Definitive Agreement.

On May 30, 2013, Global Axcess Corp., a Nevada corporation (the "Company"), and certain affiliates of the Company, entered into a Fourth Forbearance Agreement and Amendment (the "Forbearance Agreement") relating to several existing credit facilities with Fifth Third Bank ("Fifth Third"). The Forbearance Agreement (executed and delivered May 30, 2013, dated May 24, 2013 and effective as of May 21, 2013) relates to facilities entered into in connection with:

1. That certain Loan and Security Agreement, as amended (the "Loan and Security Agreement") and corresponding $5.0 million term note and $2.0 million inventory draw note that were entered into and issued by the Company to Fifth Third on June 18, 2010, and several draw loans that were extended to the Company in 2011 pursuant thereto. The Loan and Security Agreement was previously amended by the first amendment, entered into December 17, 2010, the second amendment entered into January 4, 2012, the third amendment entered into May 10, 2012, the fourth amendment entered into May 31, 2012, the fifth amendment entered into June 30, 2012, the sixth amendment entered into August 13, 2012, the first Forbearance Agreement and Amendment entered into November 12, 2012 (effective November 8, 2012) (the "First Forbearance Agreement"), the Second Forbearance Agreement and Amendment (executed and delivered April 23, 2013, dated April 18, 2013 and effective as of February 15, 2013) (the "Second Forbearance Agreement") and the Third Forbearance Agreement and Amendment (executed and delivered May 9, 2013 and effective as of May 7, 2013) (the "Third Forbearance Agreement").

2.That certain 2011-A Loan and Security Agreement, as amended (the "A-Loan"), dated as of September 28, 2011 (providing a $960,000 draw loan facility) and related draw loans that were extended to the Company in 2011 pursuant thereto.

3.That certain 2011-B Loan and Security Agreement, as amended, (the "B-Loan"), dated as of November 23, 2011 (providing a $1.0 million draw loan facility) and related draw loans that were extended to the Company in 2011 pursuant thereto.

4. That certain 2011-C Loan and Security Agreement, as amended (the "C-Loan", and, collectively with the Loan and Security Agreement, the A-Loan and the B-Loan, the "Loan Agreements"), dated as of December 29, 2011 (providing a $3.0 million draw loan facility) and related draw loans that were extended to the Company in 2011 pursuant thereto.

5. That certain Master Equipment Lease Agreement (the "Lease Agreement"), dated June 18, 2010, and certain related specified loans on various equipments schedules extended to the Company thereunder in 2011 and 2012.

The Forbearance Agreement operates as a forbearance by Fifth Third of its rights against the Company with respect to several existing defaults by the Company under the Loan Agreements and the Lease Agreement. Specifically, Fifth Third agreed not to exercise certain rights in respect to the existing defaults for a period commencing on the effective date of the Forbearance Agreement and ending on the date which is the earliest of (i) June 11, 2013, (ii) at Fifth Third's election, the occurrence or existence of any event of default, other than the existing defaults, or (iii) the occurrence of any Termination Event (as defined in the Forbearance Agreement) (the breadth of such time being the "Fourth Forbearance Period").

The Forbearance Agreement also operates as an omnibus amendment to certain terms contained in the Loan Agreements and the Lease Agreement, in exchange for certain agreements and representations made by the Company. The descriptions below details the amendments contained in the Forbearance Agreement which differ from those amendments contained in the First Forbearance Agreement (incorporated by reference to Exhibit 4.1 attached to Form 8-K, filed by the Company with the Securities and Exchange Commission (the "SEC") on November 15, 2012), the Second Forbearance Agreement (incorporated by reference to Exhibit 4.1 attached to Form 8-K, filed by the Company with the SEC on April 26, 2013) and the Third Forbearance Agreement (incorporated by reference to Exhibit 4.1 attached to Form 8-K, filed by the Company with the SEC on May 14, 2013). To the extent that the amendments contained in the Forbearance Agreement do not specifically supersede such amendments contained in the First Forbearance Agreement, the Second Forbearance Agreement and the Third Forbearance Agreement, such amendments in the First Forbearance Agreement, the Second Forbearance Agreement and the Third Forbearance Agreement remain in full force and effect.

The Forbearance Agreement effects the following additional amendments to the Loan Agreements and Lease Agreement:

Budget Covenants

The Forbearance Agreement requires the Company to comply with certain cash flow and budget forecast covenants. Specifically, the Company must deliver cash flow forecasts and reconciliations (and explanations of material variances) to Fifth Third on a weekly basis. Pursuant to these covenants (an extension of the requirement put in place by the September 28, 2012 amendment to the Loan Agreements, by the First Forbearance Agreement, by the Second Forbearance Agreement and by the Third Forbearance Agreement), the Company must also (i) generate cash receipts in an amount equal to at least ninety percent (90%) of the aggregate amount set forth in the weekly budget projections (with a reference period beginning on May 20, 2013), and (ii) make aggregate cash disbursements no greater than ten percent (10%) more than the amount set in the weekly budget projections (with a reference period beginning on May 20, 2013). Furthermore, any proceeds collected by the Company based on enumerated collateral (including proceeds from the equity raise described above), must only be used for the purposes specified in the Company's provided budget.

Letter of Intent

On or before May 28, 2013, the Company shall deliver to Fifth Third one or more letters of intent or other indications of interest (each a "Letter of Intent") from prospective purchasers regarding the potential sale of all or substantially all of the Company's assets and/or business, which Letter(s) of Intent shall be in form and substance reasonably acceptable to Fifth Third (including, without limitation, as to the price, manner and timing of any such transaction).

NOL Analysis; Information

On or before May 28, 2013, the Company, in consultation with its designated consultant and the Company's counsel, accountants and any other advisers that the Company deems necessary, shall deliver to Fifth Third (i) a detailed written analysis, together with supporting financial information acceptable to Fifth Third, that sets forth the amount of the Company's current net operating losses, the year(s) in which such net operating losses were generated, and an assessment and analysis of the treatment of such net operating losses in connection with potential transactions and/or restructurings identified by Fifth Third from time to time; and (ii) such other drafts, documents and materials as Fifth Third may reasonably request in connection therewith.

Strategic Initiatives

At all times during the Fourth Forbearance Period, the Company shall use best efforts to pursue additional capital, financing and/or other investments in connection with the Company's ongoing restructuring efforts and shall update Fifth Third (as and when requested by Fifth Third from time to time) regarding such efforts and prospects.

Additional Commitments

The following additional commitments were also made by the Company in connection with the Forbearance Agreement:

The Company must pay $27,463.50 in immediately available funds to reimburse Fifth Third for accrued professional fees.

Except as modified by the Forbearance Agreement, the terms of the Loan Agreements and the Lease Agreement (and each of the related equipment schedules), as amended, remain in full force and effect.

The foregoing description of the Forbearance Agreement, including all exhibits attached thereto, is qualified in its entirety by reference to the text of the Forbearance Agreement, a copy of which is attached to this Current Report on Form 8-K (this "Report") as Exhibit 4.1.



Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information contained in Item 1.01 is incorporated herein by reference.



Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

4.1 Forbearance Agreement and Amendment, entered May 30, 2013, by and between Global Axcess Corp. (and affiliates) and Fifth Third Bank.

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