EXHIBIT 10.2
AMENDMENT NO. 2 AND WAIVER TO CREDIT AND
GUARANTY AGREEMENT
THIS AMENDMENT NO. 2 AND WAIVER TO CREDIT AND GUARANTY AGREEMENT,
dated as of September 26, 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, as amended by that certain Amendment No. 1 to Credit and Guaranty
Agreement dated as of June 2, 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 waive compliance
by the Company with Section 6.8(d) of the Credit Agreement (Maximum Consolidated
Capital Expenditures) for the Company's Fiscal Year ending July 31, 2006, and to
extend the time period for certain post-closing deliveries and the Lenders have
agreed to provide such waiver and extensions on the terms, and subject to the
conditions, set forth herein;
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.
The Section 5.1 of the Credit Agreement is hereby amended (i) by
redesignating subsection "(s)" thereof as subsection "(t)" and (ii) by adding a
new subsection "(s)" thereto, which shall read in its entirety as follows:
(s) Location Reports; etc. Together with each delivery of financial
statements of Company and each other Credit Party pursuant to Sections
5.l(a), 5.1 (b), and 5.1 (c), a report specifying, (i) for each leased
premises housing a co-location site, the price per square foot paid by the
relevant Credit Party for such co-location site for such calendar month,
(ii) for each premises housing a managed hosting site, the average price
per server employed at such managed hosting site for such calendar month
and (iii) with respect to the Credit Parties' professional services
business, the average charge per billed consultant hour for such calendar
month.
589710.3A-Chicago Server 2A - MSW
Section 2 Waiver.
Upon the effectiveness of this Amendment in accordance with Section
4 hereof, each of the Lenders party hereto hereby waives compliance by the
Company with the requirements of Section 6.8(d) of the Credit Agreement (Maximum
Consolidated Capital Expenditures) for the Company's Fiscal Year ending July 31,
2006, and hereby further waives any Default or Event of Default that may have
arisen prior to the date hereof under Section 8(c) of the Credit Agreement in
connection with such non-compliance.
Section 3 Extensions.
Upon the effectiveness of this Amendment in accordance with Section 4
hereof, each of the Lenders party hereto hereby consents to the extensions of
the time periods contained on Schedule 5.15 of the Credit Agreement that are
reflected on Annex I hereto.
Section 4 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) after giving effect to this Amendment, no Default or Event
of Default shall have occurred and be continuing; and
(d) after giving effect to this Amendment, 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 5 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, 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
589710.3A-Chicago Server 2A - MSW
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 6 Miscellaneous.
(a) The waivers set forth herein are 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 any other Credit Document or of the same provision of
the Credit Agreement for any subsequent period 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 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
waived, 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
589710.3A-Chicago Server 2A - MSW
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.
589710.3A-Chicago Server 2A - MSW
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
589710.3A-Chicago Server 2A - MSW
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.
By: /s/ John J. Gavin Jr.
-----------------------------
Name: John J. Gavin Jr.
Title: CFO and Treasurer
589710.3A-Chicago Server 2A - MSW
SILVER POINT FINANCE, LLC,
as Administrative Agent
By: /s/ Richard Petrilli
-----------------------------
Name: Richard Petrilli
Title: Authorized Signatory
589710.3A-Chicago Server 2A - MSW
FIELD POINT I, LTD.,
as a Lender
By: /s/ Richard Petrilli
-----------------------------
Name: Richard Petrilli
Title: Authorized Signatory
589710.3A-Chicago Server 2A - MSW
FIELD POINT III, LTD.,
as a Lender
By: /s/ Richard Petrilli
-----------------------------
Name: Richard Petrilli
Title: Authorized Signatory
589710.3A-Chicago Server 2A - MSW
SPF CDO I, LLC,
as a Lender
By: /s/ Richard Petrilli
-----------------------------
Name: Richard Petrilli
Title: Authorized Signatory
589710.3A-Chicago Server 2A - MSW
ANNEX I TO
AMENDMENT NO. 2 AND WAIVER
Extension regarding certain Post-Closing Matters
As to existing lien filing related matters:
(i) Company will provide to Administrative Agent on or before November 1,
2006, agreements terminating or releasing all copyright and trademark lien
filings made against SSI by Fleet National Bank or its successor, in form and
substance satisfactory to Lender; and
(ii) on or before November 1, 2006, the Company will dissolve siteRock
Corporation or, in the alternative, cause all UCC-1 filings made against such
company as of the Closing Date to be terminated.
589710.3A-Chicago Server 2A - MSW