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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:
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(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 i
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