Exhibit 10.1
AMENDMENT NO. 1 TO
CREDIT AND GUARANTY AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT, dated as of June 2,
2006 (this "AMENDMENT"), by and among NaviSite, Inc., a Delaware corporation
("COMPANY"), the Subsidiaries of the Company party hereto, as Guarantors
("GUARANTORS"), the Lenders (defined below) party hereto and Silver Point
Finance, LLC ("SILVER POINT"), as Administrative Agent ("ADMINISTRATIVE AGENT").
RECITALS:
WHEREAS, the Company, the Guarantors, the lenders party thereto (the
"LENDERS"), the Administrative Agent and Silver Point, as Collateral Agent are
parties to that certain Credit and Guaranty Agreement dated as of April 11, 2006
(the "CREDIT AGREEMENT"; capitalized terms used and not defined herein shall
have the meanings set forth in the Credit Agreement); and
WHEREAS, the Company has requested that the Lenders agree to amend the
Credit Agreement as set forth below, and the Lenders have agreed to amend the
Credit Agreement subject to the terms and conditions set forth herein, the
Guarantors, the Lenders, and the Agents now desire to amend the Credit Agreement
in certain respects, as hereinafter provided;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1 Amendment.
Section 6.8(a) of the Credit Agreement is hereby amended and restated
in its entirety as set forth below:
(a) Fixed Charge Coverage Ratio. Company shall not permit the
Fixed Charge Coverage Ratio as of the last day of any Fiscal Quarter,
beginning with the Fiscal Quarter ending April 30, 2006, to be less than
the correlative ratio indicated:
FIXED CHARGE
FISCAL QUARTER ENDING: COVERAGE RATIO
- ---------------------- --------------
April 30, 2006 0.80:1.00
July 31, 2006 1.05:1:00
October 31, 2006 1.15:1.00
January 1, 2007 1.25:1.00
April 30, 2007 1.40:1.00
FIXED CHARGE
FISCAL QUARTER ENDING: COVERAGE RATIO
- ---------------------- --------------
July 31, 2007 1.35:1.00
October 31, 2007 1.25:1.00
January 31, 2008 1.20:1.00
Between (and
including)
April 30, 2008 and
October 31, 2008 1.15:1.00
Between (and
including)
January 31, 2009
and April 30, 2010 1.20:1.00
On July 31, 2010
and thereafter 1.25:1.00
Section 2 Conditions to Effectiveness of this Amendment.
This Amendment shall be effective as of the date hereof, upon the
satisfaction (or waiver) of the following conditions precedent:
(a) the Administrative Agent shall have received counterparts to
this Amendment duly executed and delivered by the Company, each Guarantor
and the Requisite Lenders;
(b) the Company shall have paid all costs, fees and expenses
incurred by the Administrative Agent in connection with the preparation of
this Amendment;
(c) no Default or Event of Default shall have occurred and be
continuing or shall result from the execution and delivery of this
Amendment; and
(d) the representations and warranties contained herein and in
the Credit Documents shall be true and correct in all material respects on
and as of the date hereof to the same extent as though made on and as of
such date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects on
and as of such earlier date.
Section 3 Representations and Warranties.
The Company and each Guarantor hereby represent and warrant to each
Lender, the Administrative Agent and the Collateral Agent that (a) it is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, (b) it has all requisite power and authority to
enter into is Amendment, (c) the execution,
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delivery and performance by it of this Amendment (i) has been duly authorized by
all necessary organizational action and (ii) does not and will not (A) violate
any provision of any law or any governmental rule or regulation applicable to it
or any of the Organizational Documents; (B) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation binding on it or (C) result in or require the creation or
imposition of any Lien upon any of its properties or assets and (d) this
Amendment has been duly executed and delivered by it and is its legally valid
and binding obligation, enforceable against it in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
Section 4 Miscellaneous.
(a) The amendments set forth herein is effective solely for the
purposes set forth herein and shall be limited precisely as written, and
shall not be deemed to (i) be a consent to, or acknowledgment of, any
amendment, waiver or modification of any other term or condition of the
Credit Agreement or of any other Credit Document or (ii) prejudice any
right or remedy which the Administrative Agent, the Collateral Agent or any
Lender may now have or may have in the future under or in connection with
the Credit Agreement as amended hereby or any other Credit Document. This
Amendment shall be construed in connection with and as part of the Credit
Agreement, and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Credit Agreement, each other
Credit Document and each other instrument or agreement referred to therein,
except as herein amended, are hereby ratified and confirmed and shall
remain in full force and effect.
(b) Nothing contained in this Amendment shall extinguish the
obligations for the payment of money outstanding under the Credit Agreement
or discharge or release the Liens created under or affect the priority of
any Collateral Document.
(c) This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart
of this Amendment by telefacsimile or a .PDF by electronic mail shall be
equally as effective as delivery of an original executed counterpart of
this Amendment. Any party delivering an executed counterpart of this
Amendment by telefacsimile also shall deliver an original executed
counterpart of this Amendment but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
(d) Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the
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remaining portions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction.
(e) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) THEREOF.
(f) Each of the parties hereto agrees that no party hereto shall
be deemed to be the drafter of this Amendment.
(g) EACH GUARANTOR HEREBY CONSENTS TO THIS AMENDMENT AND HEREBY
CONFIRMS AND AGREES THAT (A) NOTWITHSTANDING THE EFFECTIVENESS OF THIS
AMENDMENT, ITS OBLIGATIONS UNDER SECTION 7 OF THE CREDIT AGREEMENT AND THE
OTHER CREDIT DOCUMENT ARE, AND SHALL CONTINUE TO BE, IN FULL FORCE AND
EFFECT AND ARE HEREBY RATIFIED AND CONFIRMED IN ALL RESPECTS AND (B) THE
COLLATERAL DOCUMENTS TO WHICH IT IS A PARTY AND ALL OF THE COLLATERAL
DESCRIBED THEREIN DO, AND SHALL CONTINUE TO, SECURE THE PAYMENT OF ALL OF
THE OBLIGATIONS SECURED THEREBY.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
Company:
NAVISITE, INC.
By: /s/ John J. Gavin Jr.
------------------------------------
Name: John J. Gavin Jr.
Title: CFO and Treasurer
Amendment No. 1
to Credit and Guaranty Agreement
Guarantors:
AVASTA, INC.
CLEARBLUE TECHNOLOGIES MANAGEMENT, INC.
CLEARBLUE TECHNOLOGIES/
CHICAGO-WELLS, INC.
CLEARBLUE TECHNOLOGIES/ LAS VEGAS, INC.
CLEARBLUE TECHNOLOGIES/
LOS ANGELES, INC.
CLEARBLUE TECHNOLOGIES/ MILWAUKEE, INC.
CLEARBLUE TECHNOLOGIES/ OAK BROOK, INC.
CLEARBLUE TECHNOLOGIES/ VIENNA, INC.
CLEARBLUE TECHNOLOGIES/ DALLAS, INC.
CLEARBLUE TECHNOLOGIES/ NEW YORK, INC.
CLEARBLUE TECHNOLOGIES/ SAN
FRANCISCO, INC.
CLEARBLUE TECHNOLOGIES/
SANTA CLARA, INC.
CONXION CORPORATION
INTREPID ACQUISITION CORP.
LEXINGTON ACQUISITION CORP.
MANAGEDOPS.COM, INC.
SUREBRIDGE ACQUISITION CORP.
SUREBRIDGE SERVICES, INC.
SITEROCK CORPORATION
NAVISITE ACQUISITION SUBSIDIARY, INC.
CLICKHEAR, INC.
By: /s/ John J. Gavin Jr.
------------------------------------
Name: John J. Gavin Jr.
Title: CFO and Treasurer
Amendment No. 1
to Credit and Guaranty Agreement
SILVER POINT FINANCE, LLC,
as Administrative Agent and Collateral
Agent
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
Amendment No. 1
to Credit and Guaranty Agreement
SPF CDO I, LLC,
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
Amendment No. 1
to Credit and Guaranty Agreement
FIELD POINT III, LTD.,
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
Amendment No. 1
to Credit and Guaranty Agreement
FIELD POINT I, LTD.,
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
Amendment No. 1
to Credit and Guaranty Agreement