Exhibit 4
ASSIGNMENT AGREEMENT
This Assignment Agreement (the "Agreement") is made and entered into this 11th
day of October, 2002, by and between Fir Tree Recovery Master Fund, LP and Fir
Tree Value Partners, LDC (collectively, "Noteholder"), and NaviSite, Inc., or a
wholly-owned subsidiary or other affiliate ("Buyer").
WHEREAS, on August 5, 2002, Interliant, Inc. and its subsidiaries
(collectively, the "Debtors") filed petitions under chapter 11 of title 11 of
the United States Code, 11 U.S.C. Sec. 101, et al., with the Bankruptcy Court
for the Southern District of -- -- New York (the "Bankruptcy Case");
WHEREAS, Noteholder owns certain senior note obligations of Interliant,
Inc. listed on Schedule 1 hereto (including accrued interest thereon, the
"Assigned Claims");
WHEREAS, Noteholder desires to sell and assign the Assigned Claims to
Buyer;
WHEREAS, Buyer desires to purchase the Assigned Claims from Noteholder; and
WHEREAS, Buyer and Noteholder have agreed upon the terms and conditions of
such sale and assignment, and desire to reduce the same to writing.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements, covenants, representations, warranties and promises set forth
herein, and in order to prescribe the terms and conditions of such assignment,
the parties hereto agree as follows:
1. Assignment and Purchase.
Subject to the terms and conditions of this Agreement, Noteholder hereby
agrees to sell, transfer and assign to Buyer, and Buyer hereby agrees to
purchase from Noteholder on the date hereof, all of Noteholder's rights, title
and interest in the Assigned Claims. Buyer shall pay the Purchase Price on the
date hereof by wire transfer of federal funds to Noteholder concurrently with
the Noteholder delivering to Buyer an Assignment of Claims in the form attached
hereto as Exhibit A.
2. Representations and Warranties.
(a) Noteholder represents and warrants to Buyer that as of the date of this
Agreement: (i) the Assigned Claims are not subject to any prior assignment or
transfer, in whole or part; (ii) Noteholder is the sole and lawful owner of the
Assigned Claims, free and clear of adverse claims, liens, interests and
encumbrances other than those created by applicable securities or bankruptcy
laws; (iii) Noteholder has the full corporate power and authority to execute
this Agreement and to consummate the transactions contemplated herein; (iv) the
transactions contemplated herein do not constitute a violation of any known
material agreement and no additional consent is required to effectuate such
assignment; (v) the outstanding principal amount of the Assigned Claims is not
less than $16,476,575; (vi) the Noteholder has not received any payments from
the Debtors on the Assigned Claims; (vii) Noteholder does not have any
unsatisfied obligations to Debtor and is not aware of any basis upon which
Debtor may seek to offset or recoup its obligations under the Assigned Claims;
(viii) Noteholder does not hold any other securities of , interests in or claims
against any of the Debtors; (ix) Noteholder has no knowledge of any challenge in
writing from any party as to the validity or enforceability of the Debtors'
obligations under the Assigned Claims nor does Noteholder have any knowledge of
any challenge from any of the other creditors or stockholders of Interliant,
Inc. as to the validity or enforceability of the Debtors' obligations under the
Assigned Claims; (x) Noteholder has no knowledge of any agreement or
understanding with respect to the Debtors' obligations under the Assigned
Claims, which has not previously been disclosed to Buyer in writing; and (xi)
Noteholder has delivered to Buyer a true and correct copy of all documents in
its possession associated with the Assigned Claims. The obligations of Buyer
hereunder are subject to the condition that the foregoing representations and
warranties of Noteholder shall be true on and as of the date hereof in all
material respects. By its acceptance of this Agreement, Buyer acknowledges that,
except for the above representations and warranties, (i) Noteholder has not made
and does not make any representation or warranty, whether express or implied, of
any kind or character in connection with this Agreement, the Assigned Claims
being purchased and sold hereunder, any aspect of the underlying transactions,
the financial condition of the Debtors, or the aforesaid documents and (ii) the
assignment by Noteholder of the Assigned Claims to Buyer shall be irrevocable
and without recourse to Noteholder.
(b) Buyer represents and warrants to Noteholder that as of the date of this
Agreement: (i) Buyer has the full corporate power and authority to execute this
Agreement and to consummate the transactions contemplated herein; and (ii) Buyer
has sufficient cash, cash
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equivalents and availability under lines of credit in an amount greater than the
Purchase Price (free and clear of any liens and restrictions) and such funds or
the applicable portion thereof will be available (free and clear of any liens or
restrictions) to pay the Purchase Price. The obligations of Noteholder hereunder
are subject to the condition that the foregoing representations and warranties
of the Buyer shall be true on and as of the date hereof in all material
respects.
(c) Buyer acknowledges that Noteholder and its affiliates may possess
material non-public information not known to Buyer regarding or relating to
the Debtors or the Assigned Claims, including, but not limited to,
information concerning the business, financial condition, results of
operations, prospects or plans of the Debtors, and Buyer acknowledge that
it has not requested any such information and agrees that neither
Noteholder nor its affiliates shall have any liability whatsoever (and
Buyer hereby waives and releases all claims that it may otherwise have)
with respect to the nondisclosure of such information, whether before or
after the date of this Agreement.
3. Further Covenants and Assurances.
Noteholder shall execute and deliver such further assignments, releases or
other instruments as Buyer reasonably requests to effectuate the transfer and
assignment of the Assigned Claims to Buyer, including, if Noteholder files any
proofs of claim with respect to the Assigned Claims prior to the date hereof, an
assignment of all proofs of claim filed by Noteholder in the Bankruptcy Case
with respect to the Assigned Claims. In the event of a breach of any of
Noteholder's representations or warranties contained under Section 2 (a) above
and such breach has a material adverse effect on Noteholder's ability to
consummate the transactions contemplated by this Agreement or on the Assigned
Claims, Buyer shall have the right to rescind the assignment herein and assign
the Assigned Claims back to the Noteholder in exchange for a full refund of the
Purchase Price. Noteholder will immediately deliver such payment by wire
transfer of federal funds to the Buyer or as the Buyer may direct.
4. Waivers. A waiver of any term or condition of this Agreement shall
be valid only if it is in writing and executed by the party so waiving. The
failure of any of the parties in any one or more instances to insist upon
performance of any terms, covenant or conditions of this Agreement shall not be
construed to be a waiver of future performance of any such term, covenant or
condition but the obligation of either party with respect thereto shall continue
in full force and effect.
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5. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with the laws of
the State of New York notwithstanding any reference in such laws to the laws of
another jurisdiction.
6. Notices. All notices, demands or other communications hereunder
shall be in writing and shall be given by (1) deposit in United States mail,
sent by certified or registered mail, postage prepaid, (2) nationally recognized
overnight courier service, service prepaid, which requires written
acknowledgement or receipt, or (3) personal delivery, to the following parties:
If to Buyer: Xxxxxx X. Xxxxxxxx, Esq.
----------- NaviSite, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
With a copy to: Xxxx X. Power, Esq.
-------------- Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
If to Noteholder: c/o Fir Tree Partners
----------------- 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
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With a copy to: Xxxxx Xxxxxxxx, Esq.
-------------- Akin, Gump, Strauss, Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxxx 00000
or to such other address as Buyer or Noteholder shall have last designated in
writing to the other party in a notice meeting the requirements of this
Section 6.
7. Entire Agreement; Construction. This Agreement contains the entire
understanding and agreement between the parties with respect to the subject
matter hereof and cannot be amended, modified, or supplemented in any respect
except by a subsequent written agreement executed by the parties hereto. This
Agreement has been negotiated at arm's-length by the parties and their
respective advisors. This Agreement shall not be construed as having been
"drafted" by any one party and shall not be construed against any party as a
drafting party. The interpretation, application, meaning or construction of any
of the terms or provisions of this Agreement shall be construed pursuant to the
terms hereof, without bias in favor of or against any party hereto, and
regardless of the party who drafted or prepared such term or provision.
8. Assignment. Neither this Agreement nor any rights or obligations of
either party hereunder may be assigned to any other person without the prior
written consent of the other party, except that Buyer may assign the Assigned
Claims to one or more of its affiliates. Subject to the foregoing, the
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
9. Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original and which together shall constitute one and
the same Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day, month, and year first above written.
BUYER:
NAVISITE, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxx
--------------------------------------
Title: Director
-------------------------------------
NOTEHOLDERS:
FIR TREE RECOVERY MASTER FUND, LP
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------
Title: Vice President and Authorized Person
--------------------------------------
FIR TREE VALUE PARTNERS, LDC
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------
Title: Vice President and Authorized Person
--------------------------------------
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SCHEDULE 1
Principal Amount of 10% Convertible Senior Notes of Interliant, Inc. $16,476,575
Interliant Convertible Notes 10% 12/15/06 144A (held at Bear)
Fir Tree Value Partners, LDC 13,743,381
Fir Tree Recovery Master Fund, LP 722,474
TOTAL 14,465,855
Interliant Convertible Notes 10% 12/15/06 Registered (held at Bear)
Fir Tree Value Partners, LDC 1,682,208
Fir Tree Recovery Master Fund, LP 328,512
TOTAL 2,010,720
GRAND TOTAL AT FIR TREE ENTITIES 16,476,575
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EXHIBIT A
FORM OF ASSIGNMENT OF CLAIMS
ASSIGNMENT
----------
Pursuant to and in accordance with the terms of that certain Assignment
Agreement entered into by and between the parties hereto on October __, 2002,
and in consideration of the payment by NaviSite, Inc., a corporation with an
office at 000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 ("Assignee"), of good and
valuable consideration, the receipt of which is hereby acknowledged, Fir Tree
Recovery Master Fund, LP and Fir Tree Value Partners, LDC. with an office at 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, X.X. 00000 ("Assignor") assigns and
transfers to Assignee all claims, rights and interests against Interliant, Inc.
and its subsidiaries (collectively, the "Debtors") that are owing under those
certain 10% Convertible Senior Noted due 2006, and certain related documents,
which documents are listed on Schedule A attached hereto and made a part hereof.
This Assignment shall be governed by the internal laws of the State of New
York without regard to principals of conflicts of law.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed by
its duly authorized officer as of this __ day of October, 2002.
FIR TREE RECOVERY MASTER FUND, LP
and
FIR TREE VALUE PARTNERS, LDC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: Vice President and Authorized Person
------------------------------------
The undersigned hereby consents to and acknowledges receipt of a copy of
this Assignment this ___ day of October, 2002.
NAVISITE, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------------
Title: Director
------------------------------------
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the __ day of October, in the year 2002, before me the undersigned, a
notary public in and for said state, personally appeared Xxxxx Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledge to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Notary Public
XXXXXX X. XXXXXXXX
Notary Public, State of New York
No. 02SH5083105
Qualified in Richmond County
Commission Expires August 4, 2006
COMMONWEALTH OF MASSACHUSETTS)
ss.:
COUNTY OF )
On the __ day of October, in the year 2002, before me the undersigned, a
notary public in and for said state, personally appeared ________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledge to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
----------------------
Notary Public
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