Exhibit 10.9
WAIVER AND EXTENSION TO
CREDIT AND GUARANTY AGREEMENT
THIS WAIVER AND EXTENSION TO CREDIT AND GUARANTY AGREEMENT, dated as
of November 28, 2006 (this "WAIVER"), 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 and Amendment No. 2 and Waiver to Credit and
Guaranty Agreement dated as of September 26, 2006 (the "CREDIT AGREEMENT";
capitalized terms used and not defined herein shall have the meanings set forth
in the Credit Agreement after giving effect to this Waiver); and
WHEREAS, the Company has requested that the Lenders waive compliance
by the Company with Section 6.8(a) of the Credit Agreement (Fixed Charge
Coverage Ratio) for the Company's Fiscal Quarter ending October 31,2006;
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 Waiver.
Upon the effectiveness of this Waiver in accordance with Section 3
hereof, each of the Lenders party hereto hereby waives compliance by the Company
with the requirements of Section 6.8(a) of the Credit Agreement (Fixed Charge
Coverage Ratio) for the Company's Fiscal Quarter ending October 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 2 Extensions.
Upon the effectiveness of this Waiver in accordance with Section 3
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 3 Conditions to Effectiveness of this Waiver.
This Waiver 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 Waiver 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 Waiver;
(c) after giving effect to this Waiver, no Default or Event of
Default shall have occurred and be continuing; and
(d) after giving effect to this Waiver, 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 Waiver, (c) the execution, delivery and performance by it of this
Waiver (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 Waiver 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 waiver 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 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 Waiver 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 Waiver 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 Waiver 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 Waiver by telefacsimile or a .PDF by electronic mail shall be
equally as effective as delivery of an original executed counterpart of
this Waiver. Any party delivering an executed counterpart of this Waiver by
telefacsimile also shall deliver an original executed counterpart of this
Waiver but the failure to deliver an original executed counterpart shall
not affect the validity, enforceability, and binding effect of this Waiver.
(d) Any provision of this Waiver 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 remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(e) THIS WAIVER 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 Waiver.
(g) EACH GUARANTOR HEREBY CONSENTS TO THIS WAIVER AND HEREBY
CONFIRMS AND AGREES THAT (A) NOTWITHSTANDING THE EFFECTIVENESS OF THIS
WAIVER, 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.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver 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
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
SILVER POINT FINANCE, LLC,
as Administrative Agent
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
FIELD POINT I, LTD.,
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
FIELD POINT II, LTD.,
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
FIELD POINT III, LTD.,
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
SPCP GROUP III, LLC
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
SPCP GROUP, L.L.C.
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
SPF CDO I, LLC,
as a Lender
By: /s/ Richard Petrilli
------------------------------------
Name: Richard Petrilli
Title: Authorized Signatory
ANNEX I TO WAIVER
Extension regarding certain Post-Closing Matters
As to existing lien filing related matters:
(i) Company will provide to Administrative Agent on or before December
8,2006, 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 December 8, 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.