EXHIBIT 10.2
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:
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FISCAL QUARTER FIXED CHARGE
ENDING: COVERAGE RATIO
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April 30, 2006 0.80:1.00
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July 31, 2006 1.05:1:00
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October 31, 2006 1.15:1.00
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January 1, 2007 1.25:1.00
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FISCAL QUARTER FIXED CHARGE
ENDING: COVERAGE RATIO
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April 30, 2007 1.40:1.00
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July 31, 2007 1.35:1.00
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October 31, 2007 1.25:1.00
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January 31, 2008 1.20:1.00
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Between (and including) 1.15:1.00
April 30, 2008 and
October 31, 2008
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Between (and including) 1.20:1.00
January 31, 2009 and
April 30, 2010
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On July 31, 2010 and 1.25:1.00
thereafter
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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,
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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 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.
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(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 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/ Xxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxx X. Xxxxx Xx.
Title: CFO and Treasurer
Amendment No. 1
to Credit and Guaranty Agreement
Guarantors:
AVASTA, INC.
CLEARBLUE TECHNOLOGIES MANAGEMENT, INC.
CLEARBLUE TECHNOLOGIES/CHICAGO-XXXXX, 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 XXXXX, INC.
CONXION CORPORATION
INTREPID ACQUISITION CORP.
LEXINGTON ACQUISITION CORP.
XXXXXXXXXX.XXX, INC.
SUREBRIDGE ACQUISITION CORP.
SUREBRIDGE SERVICES, INC.
SITEROCK CORPORATION
NAVISITE ACQUISITION SUBSIDIARY, INC.
CLICKHEAR, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx Xx.
Title: CFO and Treasurer
Amendment No. 1
to Credit and Guaranty Agreement
SILVER POINT FINANCE, LLC,
as Administrative Agent and Collateral
Agent
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
Amendment No. 1
to Credit and Guaranty Agreement
FIELD POINT I, LTD.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
Amendment No. 1
to Credit and Guaranty Agreement
FIELD POINT III, LTD.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
Amendment No. 1
to Credit and Guaranty Agreement
SPF CDO I, LLC,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
Amendment No. 1
to Credit and Guaranty Agreement
