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EXHIBIT
10.14
CAPITAL CONTRIBUTION
AGREEMENT
THIS CAPITAL CONTRIBUTION
AGREEMENT (this “ Agreement ”), dated as of
December 30, 2004, is made among BANK OF AMERICA, N.A. (the “
Lender ”), TRX, Inc., a Georgia corporation (the
“ Borrower ”), and BCD HOLDINGS N.V., a
corporation organized under the laws of the Netherlands Antilles
(the “ Parent ”). All terms used but not
otherwise defined herein shall have the meanings ascribed to such
terms in the Credit Agreement described below. Without limitation
of the foregoing, each reference to “Dollars” or
“$” shall mean lawful money of the United States of
America.
W I T N E S S E T H
:
WHEREAS, the Lender
has agreed to provide to the Borrower a $10,000,000 senior secured
revolving credit facility with a letter of credit sublimit pursuant
to a Credit Agreement dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”), between the Borrower and
the Lender;
WHEREAS, the Secured
Parties may from time to time enter into Related Credit
Arrangements for the benefit of the Borrower and/or its
Subsidiaries; and
WHEREAS, the Lender is
unwilling to make the Credit Extensions from time to time pursuant
to the Credit Agreement and the Secured Parties are unwilling to
enter into the Related Credit Arrangements from time to time unless
the Borrower and the Parent enter into this Agreement;
NOW, THEREFORE, in
order to induce the Lender to make the Credit Extensions from time
to time and to induce the Secured Parties to enter into the Related
Credit Arrangements from time to time, and in further consideration
of the premises and the mutual covenants contained herein, the
parties hereto agree as follows:
1. Capital
Contribution . (a) The Parent hereby unconditionally,
absolutely, continually and irrevocably agrees with the Lender
that, upon the election of the Lender following the occurrence of
an Event of Default (as defined below), it will from time to time
make a cash capital contribution to the Borrower (each a “
Capital Contribution ”) in an amount equal to the
lesser of $2,500,000 and the Maximum Contribution Amount (as
defined below). Each such Capital Contribution shall be paid by the
Parent to the Borrower in Dollars and in immediately available
funds without deduction, setoff, recoupment or counterclaim on or
before 12:30 P.M., Atlanta, Georgia time on the fifteenth
(15 th ) day following delivery by the Lender of the
Notice of Election (as defined below), such payment to be made to
such address or account of the Borrower located within the United
States of America as the Lender may specify in its Notice of
Election (any amount not paid by the time or in the manner provided
for herein shall bear interest until paid in full at the Default
Rate). Such capital contribution may be in the form of equity or
Permitted Parent Subordinated Indebtedness.
(b) The Borrower hereby
unconditionally, absolutely, continually and irrevocably agrees
with the Lender that it shall, immediately upon receipt of any
Capital Contribution from the Parent, use, or cause to be used,
100% of the proceeds of such Capital Contribution in accordance
with Section 2.04(c) of the Credit Agreement.
(c) Any Capital Contribution
that is received by the Borrower or any other Subsidiary of the
Parent shall be held in trust by such recipient, shall be
segregated from other funds of such recipient, and shall, promptly
upon receipt thereof, be applied as required by this Agreement and
Section 2.04(c) of the Credit Agreement.
(d) As used herein, “
Event of Default ” means any of the following: (i) the
occurrence of an Event of Default (as defined in the Credit
Agreement); (ii) if there shall occur any default under the terms
applicable to any indebtedness (including guarantees of
indebtedness) of Parent or any of its subsidiaries in a principal
amount greater than $2,000,000 and such default shall (x) consist
of the failure to pay any portion of the principal of such
indebtedness or interest thereon when due or within any applicable
grace period, or (y) cause the holder of such indebtedness to
accelerate the maturity thereof; (iii) the Parent shall fail to
perform any of the covenants, agreements or other obligations
required of it in this Agreement; (iv) any representation,
warranty, certification or statement of fact made or deemed made by
or on behalf of the Parent herein, or in any document delivered in
connection herewith, shall be incorrect or misleading when made or
deemed made; (v) the Parent or any of its subsidiaries institutes
or consents to the institution of any proceeding under any
liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization or similar debtor relief laws of any
applicable jurisdiction (“ Debtor Relief Laws
”), or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person (as hereinafter defined)
and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any part of its property
is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for
relief is entered in any such proceeding; (vi)(A) the Parent or any
subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (B) any
writ or warrant of attachment or execution or similar process is
issued or levied against all or any material part of the property
of any such Person and is not released, vacated or fully bonded
within 30 days after its issue or levy; or (vii) there is entered
against the Parent or any subsidiary (A) a final judgment or order
for the payment of money in an aggregate amount exceeding
$1,000,000 (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or
(B) any non-monetary final judgment that has, or could reasonably
be expected to have a material adverse effect and, in either case,
(I) enforcement proceedings are commenced by any creditor upon such
judgment or order, or (II) there is a period of 10 consecutive days
during which a stay of enforcement of such judgment, by reason of a
pending appeal or otherwise, is not in effect.
(e) As used herein, “
Maximum Contribution Amount ” at any time means
$5,000,000, reduced by the aggregate amount of Capital
Contributions theretofore made and applied as required by
Section 1(b) (other than amounts that are rescinded or
restored for any reason).
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(f) As used herein, “
Notice of Election ” means the written notice by the
Lender addressed to the Parent at the address of the Parent set
forth beneath its signature on the signature page to this Agreement
in which the Lender states (i) that an Event of Default has
occurred, (ii) it is electing to require a Capital Contribution
hereunder, and (iii) the location of (and if applicable the funds
transmittal information for) the account to which the Capital
Contribution is to be made; provided , that an Event of
Default that exists on the date a Notice of Election is delivered
may not be used as a basis for a subsequent Notice of
Election.
2. Absolute Rights and
Obligations . The Parent’s obligations under this
Agreement shall be absolute and unconditional irrespective of, and
the Parent hereby expressly waives, to the extent permitted by law,
any defense to its obligations under this Agreement by reason
of:
(a) any lack of legality,
validity or enforceability of the Credit Agreement, of any other
Loan Document, or of any other agreement or instrument creating,
providing security for, or otherwise relating to any of the
Parent’s obligations, the Borrower’s obligations under
the Loan Documents, or any guaranty of any of the Borrower’s
obligations under the Loan Documents (the Loan Documents and all
such other agreements and instruments being collectively referred
to as the “ Related Agreements ”);
(b) any action taken under
any of the Related Agreements, any exercise of any right or power
therein conferred, any failure or omission to enforce any right
conferred thereby, or any waiver of any covenant or condition
therein provided;
(c) any declaration or other
occurrence of a default or Event of Default with respect to, or
acceleration of the maturity of, any of the Borrower’s
obligations under the Loan Documents or of any other obligations or
liabilities of any person or entity (each, a “ Person
”) under any of the Related Agreements;
(d) any release, exchange,
non-perfection, lapse in perfection, disposal, deterioration in
value, or impairment of any security for any of the
Borrower’s obligations under the Loan Documents, or for any
other obligations or liabilities of any Person under any of the
Related Agreements;
(e) any dissolution of any
party to a Related Agreement, or the combination or consolidation
of any party to a Related Agreement into or with another Person or
any transfer or disposition of any assets of the Borrower or any
other party to a Related Agreement;
(f) any extension (including
without limitation extensions of time for payment), renewal,
amendment, restructuring or restatement of, and any acceptance of
late or partial payments under, the Credit Agreement or any other
Loan Document or any other Related Agreement, in whole or in
part;
(g) the existence, addition,
modification, termination, reduction or impairment of value, or
release of any other guaranty (or security therefor) of the
Borrower’s obligations under the Loan Documents or of any
other obligations or liabilities of any Person under any of the
Related Agreements;
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(h) any waiver of,
forbearance or indulgence under, or other consent to any change in
or departure from any term or provision contained in the Credit
Agreement, any other Loan Document or any other Related Agreement,
including without limitation any term pertaining to the payment or
performance of any of the Borrower’s obligations under the
Loan Documents or any of the obligations or liabilities of any
party to any other Related Agreement;
(i) the performance or
financial condition of the Borrower; and
(j) any other circumstance
whatsoever (with or without notice to or knowledge of the Parent)
which may or might in any manner or to any extent vary the risks of
the Parent, or might otherwise constitute a legal or equitable
defense available to, or discharge of, a surety of the
Parent.
It is the express purpose and intent of
the parties hereto that this Agreement and the Parent’s
obligations hereunder shall be absolute and unconditional under any
and all circumstances and shall not be discharged except by payment
as herein provided.
3. Subordination
. Until this Agreement is terminated in accordance with
Section 19 hereof, the Parent hereby unconditionally
subordinates all present and future debts, liabilities or
obligations now or hereafter owing to the Parent from the Borrower,
to the payment in full of the Borrower’s obligations under
the Loan Documents. All amounts due under such subordinated debts,
liabilities, or obligations shall, upon the occurrence and during
the continuance of any failure to pay or perform any obligation
hereunder, be collected and, upon request by the Lender, paid over
forthwith to the Lender, and, after such request and pending such
payment, shall be held by the Parent as agent and bailee of the
Lender separate and apart from all other funds, property and
accounts of the Parent.
4. Suits . In
the event any Capital Contribution or other payment required to be
made hereunder shall not be made in full when due, the Lender may
proceed to suit against the Parent. At the election of the Lender,
one or more and successive or concurrent suits may be brought
hereon by the Lender against the Parent, whether or not suit has
been commenced against the Borrower, or any other Person and
whether or not the Lender has taken or failed to take any other
action to collect all or any portion of the Borrower’s
obligations under the Loan Documents or have taken or failed to
take any actions against any collateral securing payment or
performance of all or any portion of the Borrower’s
obligations under the Loan Documents, and irrespective of any
event, occurrence, or condition described in Section 2
hereof.
5. Set-Off and
Waiver . The Parent hereby waives any right to assert
against the Borrower or the Lender as a defense, counterclaim,
set-off or cross claim, any defense (legal or equitable) or other
claim which the Parent may now or at any time hereafter have
against the Borrower or the Lender without waiving any additional
defenses, set-offs, counterclaims or other claims otherwise
available to the Parent. The Parent agrees that the Lender shall
have a lien for all the Parent’s obligations hereunder upon
all deposits or deposit accounts, of any kind, or any interest in
any deposits or deposit accounts, now or hereafter pledged,
mortgaged, transferred or assigned to the Lender or otherwise in
the possession or control of the Lender for any purpose for the
account or benefit of the Parent, including any balance of any
deposit account or of any credit of the Parent with the Lender,
whether now existing or hereafter established, and
hereby
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authorizes the Lender from and after the
occurrence of any default in the performance, observance or
fulfillment of any obligation or liability hereunder at any time or
times with or without prior notice to set off and apply such
balances or any part thereof to such of the Parent’s
obligations to the Lender hereunder then due.
6. Waiver of Notice;
Subrogation .
(a) The Parent hereby waives
to the extent permitted by law notice of the following events or
occurrences: (i) acceptance of this Agreement; (ii) the Lender
heretofore, now or from time to time hereafter making Credit
Extensions to or for the benefit of the Borrower, whether pursuant
to the Credit Agreement or any other Loan Document or Related
Agreement or any amendments, modifications, or supplements thereto,
or replacements or extensions thereof; (iii) presentment, demand,
default, non-payment, partial payment and protest; and (iv) any
other event, condition, or occurrence described in Section 2
hereof, including but not limited to the benefits of Official Code
of Georgia Annotated §§10-7-24 and 11-3-601 or any
similar statute. The Parent agrees that the Lender may heretofore,
now or at any time hereafter do any or all of the foregoing in such
manner, upon such terms and at such times as each Lender, in its
sole and absolute discretion, deems advisable, without in any way
or respect impairing, affecting, reducing or releasing the Parent
from its obligations hereunder, and the Parent hereby consents to
each and all of the foregoing events or occurrences.
(b) The Parent hereby agrees
that payment or performance by the Parent of its obligations under
this Agreement may be enforced by the Lender without the Lender
being required to (i) prosecute collection or seek to enforce or
resort to any remedies against any Borrower, or (ii) seek to
enforce or resort to any remedies with respect to any security
interests, liens or encumbrances granted to the Lender or other
party to a Related Agreement by any Borrower, or any other Person
on account of the Borrower’s obligations under the Loan
Documents or any guaranty thereof, and Parent hereby expressly
waives to the maximum extent permitted by law any right that it may
have to require the Lender to do any of the foregoing.
7. Effectiveness;
Enforceability . This Agreement shall be effective
as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 19
hereof. Any claim or claims that the Lender may at any time
hereafter have against the Parent under this Agreement may be
asserted by written notice directed to the Parent in accordance
with Section 21 hereof.
8. Representations and
Warranties . The Parent warrants and represents to
the Lender that (i) it is duly organized and in good standing under
the laws of the jurisdiction of its organization and has full
capacity and right to make and perform this Agreement, and all
necessary authority has been obtained; (ii) this Agreement
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms; (iii) the making and performance of this
Agreement does not and will not violate the provisions of any
applicable law, regulation or order, and does not and will not
result in the breach of, or constitute a default or require
an
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