Exhibit 10.43
THIRD AMENDMENT AND WAIVER
This THIRD AMENDMENT AND WAIVER
(this “ Amendment ”) dated as of
November 3, 2005 (the “ Closing Date ”)
with respect to the Credit Agreement referenced below is entered
into among NAVIGANT INTERNATIONAL, INC., a Delaware corporation
(the “ Borrower ”), the Guarantors (as defined
in the Credit Agreement referenced below), the financial
institutions from time to time party to the Credit Agreement
referenced below as Lenders (the “ Lenders ”)
and Bank of America, N.A., as Administrative Agent for the Lenders
(in such capacity, the “ Administrative Agent
”).
WITNESSETH
WHEREAS, pursuant to the Credit
Agreement (as amended, modified and supplemented from time to time,
the “ Credit Agreement ”) dated as of
October 31, 2003 among the Borrower, the Guarantors, the
Lenders and the Administrative Agent, the Lenders agreed to make
extensions of credit to the Borrower.
WHEREAS, the Borrower has requested
that the Lenders (a) waive certain Events of Default arising
from (i) the Borrower’s failure to deliver the financial
statements and related reports required to be delivered on or
before October 28, 2005 pursuant to that certain Consent dated
as of September 30, 2005 between the Borrower, the Guarantors,
the Lenders identified therein and the Administrative Agent (the
“ Reporting Defaults ”) and (ii) any
cross-Events of Default now existing or that may arise from the
Borrower’s failure to comply with the corresponding
provisions of the Term Loan Documents (collectively, the “
Cross Defaults ” and, together with the Reporting
Defaults, the “ Existing Events of Default ”)
and (b) modify the Credit Agreement in certain
respects.
WHEREAS, the Required Lenders have
agreed to do so, but only pursuant to the terms and conditions set
forth herein.
NOW, THEREFORE, IN CONSIDERATION of
the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Defined Terms .
Capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in the Credit
Agreement.
2. Limited Waiver . The
Required Lenders hereby waive the Existing Events of Default,
provided that the foregoing limited waiver shall not be deemed to
modify or affect the obligations of the Borrower and the Guarantors
to comply with each and every other obligation under the Credit
Agreement and the other Loan Documents from and after the date
hereof.
3. Amendments . The Credit
Agreement is amended in the following respects:
3.1 The definition of
“Applicable Rate” in Section 1.01 of the Credit
Agreement is amended and restated as follows:
“ Applicable Rate
” means the following percentages per annum, based upon the
Consolidated Total Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent
pursuant to Section 7.02(b) :
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Eurodollar Rate Loans
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Base Rate Loans
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Pricing
Tier
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Consolidated Total
Leverage Ratio
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Commitment
Fee
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Letter of
Credit Fee
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Revolving
Loans
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Term
Loan
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Revolving
Loans
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Term
Loan
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I
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Less than 2.0:10
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0.500
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%
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1.75
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%
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1.75
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%
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2.00
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%
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0.75
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%
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1.00
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%
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II
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Greater than or equal to 2.0:1.0 but less than
2.5:1:0
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0.500
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%
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2.25
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%
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2.25
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%
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2.50
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%
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1.25
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%
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1.50
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%
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III
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Greater than or equal to 2.5:1.0 but less than
3.0:1.0
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0.500
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%
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2.75
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%
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2.75
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%
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3.00
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%
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1.75
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%
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2.00
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%
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IV
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Greater than or equal to 3.0:1.0 but less than
3.5:1.0
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0.500
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%
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3.25
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%
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3.25
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%
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3.50
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%
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2.25
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%
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2.50
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%
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V
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Greater than or equal to 3.5:1.0
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0.500
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%
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3.25
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%
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3.50
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%
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3.75
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%
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2.50
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%
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2.75
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%
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Any increase or decrease in the
Applicable Rate resulting from a change in the Consolidated Total
Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is
delivered pursuant to Section 7.02(b) ; provided
, however , that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing
Tier V shall apply as of the first Business Day after the date on
which such Compliance Certificate was required to have been
delivered and shall continue to apply until the first Business Day
immediately following the date such Compliance Certificate is
actually delivered, after which date the Applicable Rate based upon
such Compliance Certificate shall apply.
3.2 The following new definition is
added in Section 1.01 of the Credit Agreement:
“ Original Covenants
” means the covenants listed on Schedule 1.01
hereto
3.3 The definition of
“Permitted Acquisitions” in Section 1.01 of the
Credit Agreement is amended and restated as follows:
“ Permitted
Acquisitions ” means Investments consisting of an
Acquisition by the Borrower or any Subsidiary, provided that
(i) the Property acquired (or the Property of the Person
acquired) in such Acquisition is used or useful in the same or a
similar line of business as the Borrower and its Subsidiaries were
engaged in on the Effective Date (or any reasonable extensions or
expansions thereof), (ii) the Administrative Agent shall have
received all items in respect of the Capital Stock or Property
acquired in such Acquisition required to be delivered by the terms
of Section 7.12 and/or Section 7.14 ,
(iii) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved such
Acquisition, (iv) the Borrower shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition on a Pro
Forma Basis, the Loan Parties would be in compliance with the
financial covenants set forth in Section 8.11 as of the
most recent fiscal quarter for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or
(b) , (v) the representations and warranties made by
the Loan Parties in any Loan Document shall be true and correct in
all material respects at and as if made as of the date of such
Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date,
(vi) if such transaction involves the purchase of an interest
in a partnership between the Borrower (or a Subsidiary of the
Borrower) as a general partner and entities unaffiliated with the
Borrower or such Subsidiary as the other partners, such transaction
shall be effected by having such equity interest acquired by a
corporate holding company directly or
2
indirectly wholly-owned by the
Borrower newly formed for the sole purpose of effecting such
transaction, and (vii) the aggregate cash and non-cash
consideration (including, without limitation, Indebtedness assumed,
deferred purchase price obligations (including, without limitation,
earn-out payment obligations) and Capital Stock) paid by the
Borrower or any Subsidiary for any Acquisition (or any series of
related Acquisitions) shall not exceed $10,000,000; provided
, however , notwithstanding the foregoing, from and after
November 1, 2005 until such time as the Borrower shall have
demonstrated to the reasonable satisfaction of the Administrative
Agent that it was, as of the end of the immediately preceding
fiscal quarter, in compliance with the Original Covenants,
“Permitted Acquisitions” shall mean
“none.”
3.4 The following new Sections 7.15,
7.16 and 7.17 are hereby added to the Credit Agreement in the
appropriate numerical order:
7.15 Forecasts
.
On Thursday of each week, deliver to
the Administrative Agent and the Lenders, a consolidated rolling
thirteen (13) week forecast of cash flows for the Borrower and
its Subsidiaries in substantially the form as that delivered to the
Administrative Agent on or around 10/26 (the “
Forecast ”) together with (except for the initial
report) a reconciliation between actual cash flows for the prior
week and projected cash flows for such week as set forth in the
most recent previous Forecast.
7.16 Financial Statements; SEC
Reports .
On or before November 9, 2005
(i) deliver to the Administrative Agent the financial
statements required under Section 7.01(b) for the fiscal
quarters ended March 27, 2005 and June 26, 2005 and the
related Compliance Certificates required to be delivered in
connection therewith under Section 7.02(b), and (ii) file
with the SEC its quarterly report on Form 10Q for the fiscal
quarters ending March 27, 2005, June 26, 2005 and
September 25, 2005.
7.17 NASDAQ Re-listing
.
On or before February 15, 2006,
cause t