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<PAGE>
Exhibit 10.4
AMENDMENT NO. 4 AND WAIVER TO
CREDIT AND GUARANTY AGREEMENT
THIS AMENDMENT NO. 4 AND WAIVER TO CREDIT AND GUARANTY
AGREEMENT,
dated as of February 13, 2007 (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, Amendment No. 2 and Waiver to
Credit and
Guaranty Agreement dated as of September 26, 2006, that certain
Waiver and
Extension Agreement dated as of November 28, 2006 and that certain
Amendment No.
3 to Credit and Guaranty Agreement dated as of January 5, 2007 (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
Amendment); and
WHEREAS, on January 2, 2007, Atlantic converted all amounts
constituting principal, interest and other amounts outstanding
under the
Atlantic Existing Credit Facility (the "AECF Outstandings") to
common stock of
the Company pursuant to the term thereof;
WHEREAS, pursuant to Section 5.17 of the Credit Agreement, the
Lenders
and their respective Affiliates had the right to make additional
loans under the
Credit Agreement on substantially the same terms as the existing
Term Loan under
the Credit Agreement in a principal amount equal to the AECF
Outstandings (the
"SUPPLEMENTAL TERM LOAN"), and to require the Company to use the
proceeds of the
Supplemental Term Loan to the repayment in full of the AECF
Outstandings and to
issue the Supplemental Warrants (defined below) to the Supplemental
Term Loan
Lenders; and
WHEREAS, the Company has requested that Field Point I, Ltd. and
SPF
CDO I, Ltd. (each, a "SUPPLEMENTAL TERM LOAN LENDER") make the
Supplemental Term
Loan and permit the Company to retain the proceeds thereof for
working capital
and other general corporate purposes, and the Supplemental Term
Lenders has
agreed to make the Supplemental Term Loan on such terms,
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:
<PAGE>
SECTION 1. AMENDMENTS.
1.1 The definition of "Term Loan" contained in Section 1.1 of the
Credit
Agreement is hereby amended and restated to read in its entirety as
follows:
"TERM LOAN" means the collective reference to (i) each Term
Loan
made by a Lender to Company pursuant to Section 2.1 (a) and (ii)
the
Supplemental Term Loan.
1.2 Section 1.1 of the Credit Agreement is hereby further amended
by adding
the following definitions thereto in proper alphabetical order:
"INITIAL SUPPLEMENTAL TERM LOAN LENDERS" mean Field Point I,
Ltd.
and SPF CDO I, Ltd.
"LENDER" means each financial institution listed on the
signature
pages hereto as a Lender, each Initial Supplemental Term Loan
Lender
and any other Person that becomes a party hereto pursuant to an
Assignment Agreement.
"SUPPLEMENTAL TERM LOAN" means a term loan made by the Initial
Supplemental Term Loan Lenders on the Supplemental Term Loan Date
in a
principal amount equal to $3,762,753.
"SUPPLEMENTAL TERM LOAN DATE" means February 13,2007.
1.3 Section 6.8(b) of the Credit Agreement is hereby amended and
restated
in its entirety as follows:
(b) Leverage Ratio. Company shall not permit the Leverage Ratio
as of the last day of any Fiscal Quarter, beginning with the
Fiscal
Quarter ending April 30, 2006, to exceed the correlative ratio
indicated:
<TABLE>
<CAPTION>
Fiscal Quarter Leverage
ending Ratio
----------------- ---------
<S> <C>
April 30, 2006 5.60:1.00
July 31, 2006 4.95:1.00
October 31, 2006 4.25:1.00
January 31, 2007 3.95:1.00
April 30, 2007 3.85:1.00
July 31, 2007 3.70:1.00
October 31, 2007 3.30:1.00
January 31, 2008 3.20:1.00
April 30, 2008 3.15:1.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Fiscal Quarter Leverage
ending Ratio
----------------- ---------
<S> <C>
July 31, 2008 3.05:1.00
October 31, 2008 2.85:1.00
January 31, 2009 2.70:1.00
On April 30, 2009 2.50:1.00
and thereafter
</TABLE>
SECTION 2. WAIVERS, (a) Upon the effectiveness of this Amendment in
accordance
with Section 6 hereof, each of the Lenders party hereto hereby
waives any
Default or Event of Default that may have arisen prior to the date
hereof under
Section 8(e) of the Credit Agreement from the failure of Company to
provide to
Administrative Agent with notice on or before the Business Day
following the
75th day after the Closing Date (i) that the Atlantic Existing
Credit Facility
was still outstanding and (ii) of the amount of the AECF
Outstandings on such
date.
(b) Upon the effectiveness of this Amendment in accordance with
Section 6 hereof, each of the Lenders party hereto hereby waives
compliance by
the Company with the requirement contained in Section 5.17 of the
Credit
Agreement that the proceeds of the Supplemental Term Loan be used
to repay the
AECF Outstandings in full.
(c) Upon the effectiveness of this Amendment in accordance with
Section 6 hereof, each of the Lenders party hereto hereby waives
any Default or
Event of Default that may have arisen prior to the date hereof
under Section
8(c) of the Credit Agreement from the failure of Company to provide
to
Administrative Agent and Lenders, on a timely basis, the financial
statements
required under Section 5.1 (a) of the Credit Agreement for the
month ending on
November 30,2006.
SECTION 3. EXTENSIONS.
Upon the effectiveness of this Amendment in accordance with Section
6
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 A hereto.
SECTION 4. USE OF PROCEEDS.
Company agrees to use the proceeds of the Supplemental Term Loan
for
working capital and other general corporate purposes.
<PAGE>
SECTION 5. SUPPLEMENTAL WARRANTS.
Company represents and warrants that it has authorized the issuance
of
warrants for the purchase of an aggregate of 415,203 shares of
common stock of
Company pursuant to warrants (the "SUPPLEMENTAL WARRANTS") to be
issued by
Company to SPCP Group, LLC and SPCP Group III, LLC on the
Supplemental Term Loan
Date, subject to adjustment as set forth in the Supplemental
Warrants. Such
Supplemental Warrants shall be substantially in the form set forth
as Exhibit A
attached to the Warrant Agreement.
SECTION 6. 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,
the Supplemental Term Lender 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;
(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
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