Exhibit 10.3
FIRST AMENDMENT TO CREDIT
AGREEMENT
THIS FIRST AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”) dated as of
December 2, 2008 by and among TRX, INC. (the
“Borrower”) and ATLANTIC CAPITAL BANK, as Lender (the
“Lender”).
WHEREAS, the Borrower and the Lender
have entered into that certain Credit Agreement dated as of
May 30, 2008 (as in effect immediately prior to the date
hereof, the “Credit Agreement”); and
WHEREAS, the Borrower and the Lender
desire to amend certain provisions of the Credit Agreement on the
terms and conditions contained herein; and
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto
hereby agree as follows:
Section 1. Specific
Amendments to Credit Agreement . The parties hereto agree that
the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended
by inserting the following defined terms into
Section 1.01:
“ BCD Guaranty ”
means that certain Guaranty Agreement dated as of the First
Amendment Date made by BCD in favor of the Lender.
“ BCD Guaranty Fee
Letter ” means that certain letter agreement between the
Borrower and BCD dated as of the First Amendment Date, which sets
forth the fee payable by the Borrower to BCD relating to the BCD
Guaranty.
“ BCD Travel ”
means BCD Travel B.V.
“ First Amendment Date
” means December 2, 2008.
“ TRX India ”
means TRX Technologies India Private Limited
“ UCC ” or
“ Uniform Commercial Code ” means the Uniform
Commercial Code of the State of Georgia or of any other state the
laws of which are required to be applied in connection with the
perfection of Liens in any of the Collateral.
(b) The Credit Agreement is amended
by deleting the defined terms “Applicable Rate”,
“Capital Expenditures”, “Consolidated
EBITDA”, “Guarantors”, “Guaranty” and
“Maturity Date”, in each case in Section 1.01 in
their entirety and substituting in their place the
following:
“ Applicable Rate
” means a per annum rate equal to: (a) with respect to
Base Rate Loans, 1.50%; (b) with respect to LIBOR Loans and
Letters of Credit, 2.75% and (c) with respect to the
commitment fee, 0.50%.
“ Capital Expenditures
” means for any period the sum of (without duplication)
(a) all expenditures (whether paid in cash or accrued as
liabilities) by the Borrower and its Subsidiaries during such
period for items that are capitalized that would be classified as
“property, plant or equipment” or comparable items on
the consolidated balance sheet of the Borrower and its
Subsidiaries, including without limitation all transactional costs
incurred in connection with such expenditures provided the same
have been capitalized, and (b) all expenditures (whether paid
in cash or accrued as liabilities) by the Borrower and its
Subsidiaries during such period for the cost of developing computer
software that are capitalized on the consolidated balance sheet of
the Borrower and its Subsidiaries; provided , however
, “Capital Expenditures” shall exclude expenditures
paid for with the proceeds of casualty insurance or by a
landlord.
“ Consolidated EBITDA
” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated
Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for Federal, state, local and foreign
income taxes payable by the Borrower and its Subsidiaries for such
period, (iii) depreciation and amortization expense,
(iv) other non-recurring expenses of the Borrower and its
Subsidiaries reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period,
(v) all non-cash items decreasing Consolidated Net Income for
such period and (vi) severance expenses incurred during such
period which benefit employees of the Borrower or its Subsidiaries
whose employment therewith has been or will be terminated,
minus (b) the following to the extent included in
calculating such Consolidated Net Income: (i) Federal, state,
local and foreign income tax credits of the Borrower and its
Subsidiaries for such period, (ii) all non-cash items
increasing Consolidated Net Income for such period, and
(iii) the amount of any cash expenditures made during such
period related to non-recurring expenses included pursuant to item
(a)(iv) above in computing Consolidated EBITDA during any prior
period.
“ Guarantors ”
means, collectively, all Domestic Subsidiaries of the Borrower as
of the Closing Date, each other Person that from time to time
becomes a party to the Guaranty (including by execution of a
Guaranty Joinder Agreement) and BCD.
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“ Guaranty ”
means, collectively, (a) the Guaranty dated as of the Closing
Date, made by the Guarantors party thereto in favor of the Lender
and (b) the BCD Guaranty.
“ Maturity Date ”
means April 30, 2010.
(c) The Credit Agreement is further
amended by deleting Section 2.04(b) in its entirety and
substituting in its place the following:
“(b) Mandatory
Prepayments .
(i) If for any reason the Total
Outstandings at any time exceed the Commitment then in effect, the
Borrower shall immediately prepay Loans and/or Cash Collateralize
the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this
Section 2.04(b) unless after the prepayment in full of
the Loans the Total Outstandings exceed the Commitment then in
effect.
(ii) In the event of a Disposition
of all or substantially all of the stock or assets of TRX India,
all of the cash proceeds resulting from such sale, net of any
outstanding indebtedness of TRX India, amounts to pay any taxes
incurred as a result of such sale of any reasonable expenses of
such sale, shall immediately upon receipt by the Borrower or any of
its Affiliates be paid to the Lender to be applied against the
Loans then outstanding.
(d) The Credit Agreement is further
amended by deleting Section 6.06 in its entirety and
substituting in its place the following:
“ 6.06 Litigation.
Except as set forth on Schedule 6.06, there are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the
Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that
(a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate, if
determined adversely, could reasonably be expected to have a
Material Adverse Effect.”
(e) The Credit Agreement is further
amended by deleting the first sentence of Section 6.12(d) in
its entirety and substituting in its place the
following:
“(d) Except as set forth on
Schedule 6.12, there are no strikes, lockouts or other material
labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower’s knowledge, threatened
against or affecting the Borrower or
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any of its Subsidiaries, and no
significant unfair labor practice, charges or grievances are
pending against the Borrower or any of its Subsidiaries, or to the
Borrower’s knowledge, threatened against any of them before
any Governmental Authority.”
(f) The Credit Agreement is further
amended by deleting the first sentence of Section 7.01 in its
entirety and substituting in its place the following:
“ 7.01. Financial
Statements. Deliver, or cause to be delivered, to the Lender,
in form and detail satisfactory to the Lender:”
(g) The Credit Agreement is further
amended by deleting the “.” at the end of
Section 7.01(c), replacing it with “;” and adding
the following new Sections 7.01(d), (e) and (f):
“(d) as soon as available, but
in any event within 15 Business Days after the end of each month, a
consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such month, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows
for such month and for the portion of the Borrower’s fiscal
year then ended, setting forth in each case in comparative form the
figures for the corresponding month of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in
reasonable detail, certified by a Responsible Officer of the
Borrower as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject only
to normal year-end audit adjustments and the absence of
footnotes;
(e) as soon as available, but in any
event within 160 days after the end of each fiscal year of BCD, a
consolidated balance sheet of BCD and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all in reasonable detail
and prepared in accordance with GAAP, audited and accompanied by a
report and opinion of an independent certified public accountant of
recognized standing reasonably acceptable to the Lender, which
report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any
“going concern” or like qualification or exception or
any qualification or exception as to the scope of such audit;
and
(f) as soon as available, but in any
event within 90 days after the end of each of the first three
fiscal quarters of each fiscal year of BCD Travel, a balance sheet
of BCD Travel as at the end of such fiscal quarter, and the related
statements of income or operations, shareholders’ equity
a
