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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
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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
