exv10w3






Exhibit 10.3




AMENDMENT AND CONSENT AGREEMENT NO. 8




April 30, 2010



          AMENDMENT AND CONSENT AGREEMENT NO. 8 (this “Amendment”) dated as of April 30, 2010, under
that certain Amended and Restated Credit Agreement, dated as of September 12, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms
used herein and not defined herein shall have the meaning set forth in the Credit Agreement), among
NaviSite, Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors, the Lenders,
CIBC World Markets Corp., as sole lead arranger (in such capacity, “Sole Lead Arranger”), as
documentation agent (in such capacity, “Documentation Agent”), and as bookrunner (in such capacity,
“Bookrunner”), CIT Lending Services Corporation, as syndication agent (in such capacity,
“Syndication Agent”), and Canadian Imperial Bank of Commerce, acting through its New York agency,
as issuing bank (in such capacity, “Issuing Bank”) and as administrative agent (in such capacity,
“Administrative Agent”) for the Lenders and as collateral agent (in such capacity, “Collateral
Agent”) for the Secured Parties and the Issuing Bank.




WITNESSETH:



          WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to extend credit to
Borrower pursuant to the terms and conditions set forth therein;




          WHEREAS, Borrower has requested that the Administrative Agent and the Lenders agree, subject
to the conditions and terms set forth in this Amendment, to amend certain provisions of the Credit
Agreement as provided for below in this Amendment (the “Proposed Amendments”);




          WHEREAS, pursuant to Section 10.02(b) of the Credit Agreement, the consent of the
Required Lenders is necessary to effect this Amendment;




          WHEREAS, the Lenders party hereto (the “Consenting Lenders”) constitute the Required Lenders
under the Credit Agreement; and




          WHEREAS, the Administrative Agent and Consenting Lenders are willing to agree to the Proposed
Amendments, subject to the conditions set forth herein;




          NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained,
the parties hereto hereby agree as follows:




ARTICLE ONE



CONSENT



          1.01 Consent. Subject to the conditions precedent set forth in Article Four
of this Amendment, the Consenting Lenders hereby consent to the execution by the Administrative
Agent of this Amendment.






 









 








ARTICLE TWO




AMENDMENTS TO CREDIT AGREEMENT



          2.01 Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows (subject to the conditions precedent set forth in Article Five of this
Amendment):




          (a) The reference to $10,000,000 in the first recital to the Credit Agreement is
deleted and replaced with “$9,000,000”.




          (b) The definition of “Consolidated Fixed Charges” in Section 1.01 of the
Credit Agreement is amended by adding the following at the end of clause (b):





“provided, further, that after the Amendment No. 8 Effective Date, all Growth Related
Capital Expenditures shall be excluded from Capital Expenditures in the determination
of “Consolidated Fixed Charges;”



          (c) The definition of “Excess Cash Flow Period” in Section 1.01 of the
Credit Agreement is amended to read in its entirety as follows:





     “Excess Cash Flow Period” shall mean (i) for all fiscal years ending prior to the
Amendment No. 5 Effective Date, (a) the period taken as one accounting period from
August 1, 2007 and ending on July 31, 2008, and (b) each fiscal year of Borrower
thereafter, (ii) for all fiscal years ending on or after the Amendment No. 5 Effective
Date and prior to Amendment No. 8 Effective Date, each fiscal quarter taken as one
accounting period commencing with the fiscal quarter ending October 31, 2008 and (iii)
for all fiscal years ending on or after the Amendment No. 8 Effective Date, each
semi-annual period taken as one accounting period commencing with the semi-annual
period ending July 31, 2010.”



          (d) The definition of “Revolving Commitment” in Section 1.01 of the Credit
Agreement is amended by replacing the last sentence with the following:





     “The aggregate amount of the Lenders’ Revolving Commitments (a) on the Effective
Date and prior to the Amendment No. 8 Effective Date is $10.0 million and (b) on and
after the Amendment No. 8 Effective Date is $9.0 million; provided that from and after
the date on which the Credit Parties and their Subsidiaries shall have received Net
Cash Proceeds in respect of one or more Asset Sales occurring after the Amendment No.
8 Effective Date in excess of $10,000,000, in the aggregate for all such Asset Sales
occurring after the Amendment No. 8 Effective Date, the Revolving Commitments shall
automatically (and without any further action by the Borrower, Administrative Agent or
any Lender) be reduced to $8,000,000 from and after such date.”



          (e) The following new definitions shall be added to Section 1.01 of the
Credit Agreement in alphabetical order:





““Adjusted Pro Forma Reduction Amount” shall have the meaning assigned to such
term in Section 6.10(e).




“Amendment No. 8 Effective Date” shall mean April 30, 2010.



2









 






“Growth Related Capital Expenditures” shall mean, with respect to any Person
for any period, all Capital Expenditures by such Person necessary to implement
customers orders that are evidenced by signed contracts or sales orders.”




“Liquidity” shall mean at any time of determination an amount equal to (i) the
sum of (a) the Revolving Commitments less Revolving Exposures at such time plus
(b) unrestricted cash of the Credit Parties on hand at such time less (ii) the
dollar amount of checks written by Credit Parties but not yet cleared against
the balance on deposit in the Credit Parties’ bank accounts at such time.




“Maintenance Capital Expenditures” shall mean all Capital Expenditures other
than Growth Related Capital Expenditures.”



          (f) Section 2.05(a) is amended by replacing “0.50% with “0.75%” in the first
sentence.




          (g) Section 2.07(c) is amended by adding in the first sentence after
“Section 2.07(b)” the following: “or Section 2.10(c)”.




          (h) Section 2.10(c) is amended to read in its entirety as follows:





     “(c) (i) Asset Sales. Not later than five Business Days following the
receipt of any Net Cash Proceeds of any Asset Sale by Borrower or any of its
Subsidiaries, Borrower shall make prepayments in accordance with Sections
2.10(h) and (i) in an aggregate amount equal to 100% of such Net Cash Proceeds;
provided that no such prepayment shall be required under this Section
2.10(c)(i) with respect to (A) any Asset Sale permitted by Section
6.06(a), (B) the disposition of property which constitutes a Casualty Event, or
(C) Asset Sales for fair market value resulting in no more than $500,000 in Net Cash
Proceeds per Asset Sale (or series of related Asset Sales) and no more than $1,000,000
in Net Cash Proceeds in any fiscal year (to the extent that either maximum amount set
forth in this subclause (C) is exceeded, the Loan Parties shall be required to apply
the amount in excess of the maximum amounts set forth in this subclause (and not the
entire amount) to prepay the Loans unless the Borrower shall comply with (c)(ii)
below); provided that clause (C) shall not apply in the case of any Asset Sale
described in clause (b) of the definition thereof. Notwithstanding the foregoing,
Borrower and its Subsidiaries shall not be entitled to retain any Net Cash Proceeds
from the AJE Sale and shall, within 5 Business Days following the receipt of any Net
Cash Proceeds from the AJE Sale, make prepayments of the Term Loans in accordance with
Sections 2.10(h) and (i) in an aggregate amount equal to 100% of such
Net Cash Proceeds.




     (ii) so long as no Default shall then exist or would arise therefrom, an amount
equal to not more than 25% of such proceeds shall not be required to be so applied on
such date to the extent that Borrower shall have delivered an Officers’ Certificate to
the Administrative Agent on or prior to such date stating that such Net Cash Proceeds
are expected to be reinvested in Capital Assets constituting Growth Related Capital
Expenditures or to be contractually committed to be so reinvested within 12 months
following the date of such Asset Sale (which Officers’ Certificate shall set forth the
estimates of the proceeds to be so expended); provided that if all or any portion of
such Net Cash Proceeds is not so reinvested within such 12-month period or, if ending
later,



3









 







the period ending 6 months after any such contractual commitment with respect to such
Net Cash Proceeds was entered into, such unused portion shall be applied on the last
day of such period as a mandatory prepayment as provided in this Section
2.10(c); provided, further, that if the property subject to such Asset Sale
constituted Collateral, then all property purchased with the Net Cash Proceeds thereof
pursuant to this subsection shall be made subject to the Lien of the applicable
Security Documents in favor of the Collateral Agent, for its benefit and for the
benefit of the other Secured Parties in accordance with Sections 5.11 and
5.12; provided further that the aggregate amount of Net Cash Proceeds applied
in accordance with this clause (c)(ii) shall not exceed $4,000,000 for and after the
Amendment 8 Effective Date.”




(i) Section 2.10(g) is amended to read in its entirety as follows:




     “(g) Excess Cash Flow. No later than five Business Days after the date on
which the financial statements with respect to such (x) fiscal year (in the case of
all fiscal years ended prior to the Amendment No. 5 Effective Date), (y) fiscal
quarter (in the case of all fiscal years ending on or after the Amendment No. 5
Effective Date and prior to Amendment No. 8 Effective Date and commencing with the
fiscal quarter ending October 31, 2008) or (z) semi-annual period (in the case of all
fiscal years ending on or after the Amendment No. 8 Effective Date and commencing with
the semi-annual period ending July 31, 2010), as the case may be, in which such Excess
Cash Flow Period occurs are or are required to be delivered pursuant to Section
5.01(a) or (b), Borrower shall make prepayments in accordance with Sections
2.10(h) and (i) in an aggregate amount equal to 75% of Excess Cash Flow
for the Excess Cash Flow Period then ended.”



          (j) Section 2.10 of the Credit Agreement is hereby amended by inserting new
clause (k) as follows:





“(k) Prepayment Premium. If Borrower shall repay any Term Loans or the
Revolving Loans (and in connection therewith terminating the related Revolving
Commitments) in each case, other than any mandatory prepayments thereof pursuant to
Section 2.10(c) (Asset Sales), (f) (Casualty Events) or (g) (Excess Cash
Flow), the Borrower shall, at the time of such repayment, pay the Lenders a prepayment
premium equal to (i) 0.75% (if such prepayment is made on or prior to September 30,
2010) and (ii) 0.50% (if such prepayment is made after September 30, 2010 and on or
prior to April 30, 2011) of the aggregate principal amount of the Term Loans and/or
Revolving Loans so repaid plus, without duplication, the amount of Revolving
Commitments terminated in connection with such repayment.”



          (k) Section 5.01(d) of the Credit Agreement is amended by deleting clause (iii) and
replacing it with the following and adding new clauses (iv), (v) and (vi) as provided below:





“(iii) concurrently with the delivery of financial statements under Section
5.01(a) or (b), detailed quarterly and year-to-date reports satisfactory
to the Administrative Agent of Growth Related Capital Expenditures and Maintenance
Capital Expenditures of the Borrower and its Subsidiaries for the fiscal quarter ended
as of the date of the balance sheet contained in such financial statements; (iv)
concurrently with any delivery of financial statements under Section 5.01(c)
above, a Compliance Certificate (A) certifying that no Default has occurred or, if
such a Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto and (B) beginning
with the fiscal month ending May 31, 2010, setting forth



4









 







computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with Section 6.10(f); (v) on the date on which the
Credit Parties and their Subsidiaries shall have received Net Cash Proceeds in respect
of one or more Asset Sales occurring after the Amendment No. 8 Effective Date in
excess of $10,000,000, in the aggregate for all such Asset Sales occurring after the
Amendment No. 8 Effective Date, notice to the Administrative Agent that the Revolving
Commitments have been reduced to $8,000,000 from and after such date; and (vi) within
3 business days after execution, deliver executed copies of any contract or sales
order in connection with the implementation of customer orders or if unavailable,
provide reasonable details satisfactory to the Administrative Agent of such
implementation of customer orders;”



          (l) Section 6.10(b) of the Credit Agreement is amended by deleting the table
in its entirety and replacing it with the following table:




	 	 	 	 	 
	 	 	Fixed Charge
	          Test Period	 	Coverage Ratio
	July 31, 2007
	 	 	1.00 to 1.0	 
	October 31, 2007
	 	 	1.00 to 1.0	 
	January 31, 2008
	 	 	1.10 to 1.0	 
	April 30, 2008
	 	 	1.20 to 1.0	 
	July 31, 2008
	 	 	1.25 to 1.0	 
	October 31, 2008
	 	 	1.10 to 1.0	 
	January 31, 2009
	 	 	1.10 to 1.0	 
	April 30, 2009
	 	 	1.10 to 1.0	 
	July 31, 2009
	 	 	1.12 to 1.0	 
	October 31, 2009
	 	 	1.15 to 1.0	 
	January 31, 2010
	 	 	1.16 to 1.0	 
	April 30, 2010
	 	 	1.25 to 1.0	 
	July 31, 2010
	 	 	1.25 to 1.0	 
	October 31, 2010
	 	 	1.40 to 1.0	 
	January 31, 2011
	 	 	1.45 to 1.0	 
	April 30, 2011
	 	 	1.90 to 1.0	 
	July 31, 2011
	 	 	2.55 to 1.0	 
	October 31, 2011
	 	 	2.75 to 1.0	 
	January 31, 2012
	 	 	2.90 to 1.0	 
	April 30, 2012
	 	 	3.10 to 1.0	 
	July 31, 2012
	 	 	3.40 to 1.0	 
	October 31, 2012 and the last day of each fiscal
quarter thereafter
	 	 	3.50 to 1.0	 






5









 






          (m) Section 6.10(c) of the Credit Agreement is amended to read in its
entirety as follows:





     “Limitation on Capital Expenditures. (i) Maintenance Capital
Expenditures. Permit the aggregate amount of Maintenance Capital Expenditures made in any
period set forth below, to exceed the amount set forth opposite such period below:



	 	 	 	 	 
	 	 	Maintenance
	 	 	Capital
	Period	 	Expenditures
	Fiscal year ending July 31, 2010
	 	$	10,370,000	 
	Fiscal year ending July 31, 2011
	 	$	4,448,000	 
	Fiscal year ending July 31, 2012
	 	$	4,448,000	 
	Fiscal year ending July 31, 2013 and
each fiscal year thereafter
	 	$	4,448,000	 







provided, however, that (x) if the aggregate amount of Maintenance Capital Expenditures made in any
fiscal year shall be less than the maximum amount of Maintenance Capital Expenditures permitted
under this Section 6.10(c)(i) for such fiscal year (before giving effect to any carryover),
then an amount of such shortfall not exceeding 50% of such maximum amount (without giving effect to
clause (z) below) may be added to the amount of Maintenance Capital Expenditures permitted under
this Section 6.10(c)(i) for the immediately succeeding (but not any other) fiscal year and
(y) in determining whether any amount is available for carryover, the amount expended in any fiscal
year shall first be deemed to be from the amount allocated to such fiscal year (before giving
effect to any carryover).




     (ii) Growth Related Capital Expenditures. Permit the aggregate amount of Growth
Related Capital Expenditures made in any fiscal quarter to exceed (x) $3,888,000 if Consolidated
EBITDA for the Test Period ended on the last day of the second fiscal quarter immediately
preceding such fiscal quarter is at Level I as provided in the table below in respect of such
fiscal quarter, (y) $2,888,000 if Consolidated EBITDA for the Test Period ended on the last day of
the second fiscal quarter immediately preceding such fiscal quarter is at Level II as provided in
the table below in respect of such fiscal quarter or (z) $2,388,000 if Consolidated EBITDA for the
Test Period ended on the last day of the second fiscal quarter immediately preceding such fiscal
quarter is at Level III as provided in the table below in respect of such fiscal quarter; provided
that if Consolidated EBITDA for any relevant Test Period is at Level I and if the aggregate amount
of Growth Related Capital Expenditures made in respect of the applicable fiscal quarter exceeds
the maximum amount of Growth Related Capital Expenditures permitted under this Section
6.10(c)(ii) for such fiscal quarter, then the Growth Related Capital Expenditures for such
fiscal quarter may be increased (not more than once in any fiscal year) by an amount equal to such
excess amount (not to exceed $2,000,000) from the immediately succeeding (but not any other)
fiscal quarter’s Growth Related Capital Expenditures under this Section 6.10(c)(ii);



6









 






provided further that any usage from the succeeding fiscal quarter’s Growth Related Capital
Expenditures shall be deducted from the Growth Capital Expenditures available for such
succeeding fiscal quarter:



	 	 	 	 	 	 	 
	 	 	 	 	LTM Minimum	 	LTM Minimum
	 	 	LTM Minimum EBITDA	 	EBITDA	 	EBITDA
	Period	 	Level I	 	Level II	 	Level III
	Fiscal quarter ending October 31, 2010

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to $ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending January 31, 2011

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending April 30, 2011

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending July 31, 2011

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending October 31, 2011

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending January 31, 2012

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending April 30, 2012

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending July 31, 2012

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending October 31, 2012

	 	Greater than $ *
	 	Greater than $ * and
less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending January 31, 2013

	 	Greater than $ *
	 	Greater than $ * and less
	 	Less than or equal to $ *






 





			
	 * 	 	Confidential material omitted and filed separately with the SEC pursuant to a request for confidential treatment.  




7









 






	 	 	 	 	 	 	 
	 	 	 	 	LTM Minimum	 	LTM Minimum
	 	 	LTM Minimum EBITDA	 	EBITDA	 	EBITDA
	Period	 	Level I	 	Level II	 	Level III
	 

	 	 	 	than or equal to $ *	 	 
	 
	 	 	 	 	 	 
	Fiscal quarter ending April 30, 2013

	 	Greater than $ *
	 	Greater than $ *
and less than or equal to
$ *
	 	Less than or equal to $ *
	 
	 	 	 	 	 	 
	Fiscal quarter ending July 31, 2013

	 	Greater than $ *
	 	Greater than $ *
and less than or equal to
$ *
	 	Less than or equal to $ *






          (n) Section 6.10(d) of the Credit Agreement is amended by deleting the table
in its entirety and replacing it with the following table:




	 	 	 	 	 
	 	 	Senior
	Test Period	 	Leverage Ratio
	January 31, 2010
	 	 	3.00 to 1.0	 
	April 30, 2010
	 	 	2.50 to 1.0	 
	July 31, 2010
	 	 	2.50 to 1.0	 
	October 31, 2010
	 	 	2.40 to 1.0	 
	January 31, 2011
	 	 	2.35 to 1.0	 
	April 30, 2011
	 	 	2.00 to 1.0	 
	July 31, 2011
	 	 	1.90 to 1.0	 
	October 31, 2011
	 	 	1.80 to 1.0	 
	January 31, 2012
	 	 	1.65 to 1.0	 
	April 30, 2012
	 	 	1.50 to 1.0	 
	July 31, 2012 and thereafter
	 	 	1.50 to 1.0	 






          (o) Section 6.10 of the Credit Agreement is hereby amended by
inserting new clause (e) as follows:





“(e) Minimum EBITDA. Permit Consolidated EBITDA of the Borrower for any Test
Period set forth below to be less than the amount corresponding to such period as set
forth below (as such amount may be adjusted as provided in the immediately succeeding
paragraph):






 





			
	 * 	 	Confidential material omitted and filed separately with the SEC pursuant to a request for confidential treatment.  






8









 





	 	 	 	 	 
	Test Period (trailing 12 months LTM)	 	Minimum EBITDA
	Quarter ended July 31, 2010
	 	$	*	 
	Quarter ended October 31, 2010
	 	$	*	 
	Quarter ended January 31, 2011
	 	$	*	 
	Quarter ended April 30, 2011
	 	$	*	 
	Quarter ended July 31, 2011
	 	$	*	 
	Quarter ended October 31, 2011
	 	$	*	 
	Quarter ended January 31, 2012
	 	$	*	 
	Quarter ended April 30, 2012
	 	$	*	 
	Quarter ended July 31, 2012
	 	$	*	 
	Quarter ended October 31, 2012
	 	$	*	 
	Quarter ended January 31, 2013
	 	$	*	 
	Quarter ended April 30, 2013
	 	$	*	 
	Quarter ended July 31, 2013 and each quarter ended
thereafter
	 	$	*	 







Notwithstanding the foregoing, in the event that the Borrower shall consummate an Asset Sale
during any Test Period set forth above then, to the extent the assets that are the subject of
such Asset Sale shall have generated positive Consolidated EBITDA during such Test Period,
(i) the minimum Consolidated EBITDA requirement for such Test Period set forth above shall be
reduced by the sum of (a) the amount necessary to give Pro Forma Effect to such Asset Sale as
though such Asset Sale had been effected on the first day of such period and (b) the
Consolidated EBITDA of the Borrower attributable to the assets that are the subject of such
Asset Sale as of the immediately preceding Test Period less the amount provided for in clause
(a) (the amount set forth in this clause (i), the “Adjusted Pro Forma Reduction Amount”) and
(ii) the minimum Consolidated EBITDA requirement for each Test Period ending after the Test
Period in which such Asset Sale occurs shall be reduced by an amount equal to the product of
(x) 0.80 and (y) the Adjusted Pro Forma Reduction Amount. Promptly, but in any event no later
than 5 Business Days following the consummation of each Asset Sale described above, the
Borrower shall deliver to the Administrative Agent and each Lender a certificate describing
in reasonable detail each such Asset Sale and setting forth the Borrower’s calculation of
Adjusted Pro Forma Reduction Amount and its calculation of the amount by which the minimum
Consolidated EBITDA amount for each Test Period shall have been reduced. The Borrower’s
determinations shall not become effective with respect to any Asset Sale unless they are
satisfactory to the Required Lenders.”



          (p) Section 6.10 of the Credit Agreement is hereby amended by
inserting new clause (f) as follows:





“(f) Minimum Liquidity. Permit Liquidity as of the last day of any fiscal
quarter to be less than $5,000,000.”





 





			
	 * 	 	Confidential material omitted and filed separately with the SEC pursuant to a request for confidential treatment.  




9









 





          (q) Section 6.13 of the Credit Agreement is amended by to read in its
entirety as follows:





     “SECTION 6.13 Limitation on Issuance of Capital Stock. Solely with
respect to any Subsidiaries of Borrower, issue any Equity Interest (including by way
of sales of treasury stock) or any options or warrants to purchase, or securities
convertible into, any Equity Interest, except (i) for stock splits, stock dividends
and additional issuances of Equity Interests which do not decrease the percentage
ownership of Borrower or any Subsidiaries in any class of the Equity Interest of such
Subsidiary; provided that America’s Job Exchange, Inc. (“AJE”) may issue shares of its
Common Stock, par value $0.01, or stock options exercisable therefor to its employees,
or employees of Borrower performing services on behalf of AJE, in an aggregate amount
not to exceed at any time 12% of the total Common Stock of AJE issued to Borrower;
(ii) Subsidiaries of Borrower formed after the Original Closing Date in accordance
with Section 6.14 may issue Equity Interests to Borrower or the Subsidiary of
Borrower which is to own such Equity Interests; and (iii) any Foreign Subsidiary may
issue shares of capital stock to any person (to the extent required by applicable law)
in order to qualify such person as a director of such Foreign Subsidiary. All Equity
Interests issued in accordance with this Section 6.13 shall, to the extent
required by Sections 5.11 and 5.12 or any Security Agreement or if
such Equity Interests are issued by Borrower, be delivered to the Collateral Agent for
pledge pursuant to the applicable Security Agreement.”



REPRESENTATIONS AND WARRANTIES



          3.01 Representations and Warranties. The representations and warranties of
the Loan Parties contained in Article III of the Credit Agreement are true and correct in
all material respects on and as of the date hereof as though made on and as of this date (other
than representations and warranties which by their terms relate to an earlier date).




          3.02 No Default or Event of Default. Both immediately before and after
giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.




          3.03 Authorization; Enforceability. Each Loan Party has the power and
authority to execute, deliver and perform its obligations under this Amendment and has taken all
necessary corporate or other action to authorize the execution, delivery and performance by it of
this Amendment.




          3.04 Execution. This Amendment has been duly executed and delivered by each
Loan Party and constitutes a legal, valid and binding obligation of such person, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.




          3.05 No Conflicts. The execution, delivery and performance of this Amendment
by each Loan Party (i) will not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, (ii) will not violate any Requirement of Law
applicable to such Loan Party and (iii) will not violate or result in a default under any indenture
or other material agreement or instrument binding upon such Loan Party or its assets, or give rise
to a right thereunder to require any payment to be made by such Loan Party or give rise to a right
of, or result in, termination, cancellation or acceleration of any material obligation thereunder.




10









 





ARTICLE FOUR




CONDITIONS PRECEDENT TO EFFECTIVENESS



          The Amendment shall become effective on the date (the “Amendment No. 8 Effective Date”) when
the following conditions precedent shall have been satisfied:




          4.01 Execution by Loan Parties. Borrower shall have delivered to the
Administrative Agent (or its counsel) a copy of this Amendment manually executed and delivered by
each Loan Party (which may be transmitted by facsimile or by email).




          4.02 Execution by Consenting Lenders and Agents. The Administrative Agent
(or its counsel) shall have received from each Consenting Lender and each of the other parties
hereto a counterpart of this Amendment executed on behalf of such party (which may be transmitted
by facsimile or by email).




          4.03 Consent Fee. As consideration for the Administrative Agent’s and
Consenting Lenders’ execution and delivery of this Amendment, Borrower shall pay to the
Administrative Agent in immediately available funds on or before the Amendment No. 8 Effective
Date, for the ratable benefit of the Consenting Lenders, a consent fee equal to 0.50% of the
aggregate principal amount of the Term Loans and Revolving Commitments of such Consenting Lender
(including, for the avoidance of doubt, all interest which shall have been capitalized and added to
principal as of the date hereof) (“Consent Fee”). This Consent Fee shall be deemed fully earned
upon the execution and delivery of this Amendment by all parties hereto, and shall be nonrefundable
upon receipt by the Administrative Agent.




ARTICLE FIVE



AFFIRMATION AND ACKNOWLEDGMENT



          5.01 Acknowledgment and Affirmation. Each Loan Party hereby (i) expressly
acknowledges and affirms the terms of the Credit Agreement and the other Loan Documents, (ii)
ratifies and affirms after giving effect to this Amendment its obligations under the Loan Documents
(including guarantees and security agreements) executed by such Loan Party and (iii) after giving
effect to this Amendment, acknowledges, renews and extends its continued liability under all such
Loan Documents and agrees such Loan Documents remain in full force and effect.




          5.02 Enforceability. Each Loan Party further confirms that each Loan
Document to which it is a party is and shall continue to be in full force and effect and the same
are hereby ratified and confirmed in all respects.




          5.03 Course of Dealing. Each Loan Party hereby acknowledges and agrees that
the acceptance by the Administrative Agent, each Lender and each other Agent of this Amendment
shall not be construed in any manner to establish any course of dealing on any Agent’s or Lender’s
part, including the providing of any notice or the requesting of any acknowledgment not otherwise
expressly provided for in any Loan Document with respect to any future amendment, waiver,
supplement or other modification to any Loan Document or any arrangement contemplated by any Loan
Document.




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ARTICLE SIX




COVENANTS AND MISCELLANEOUS PROVISIONS



          6.01 Costs and Expenses. Borrower shall pay all reasonable, documented
out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment and the documentation contemplated hereby, including the
reasonable fees and out-of-pocket expenses of Cahill Gordon & Reindel LLP, counsel for the
Administrative Agent with respect thereto.




          6.02 Effect of Amendment. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights or remedies of the Lenders, the Administrative Agent or the Collateral Agent
under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other provision of the Credit Agreement or of any other Loan Document, all
of which are ratified and affirmed in all respects and shall continue in full force and effect.
Nothing herein shall be deemed to entitle Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Loan Document in similar or different circumstances.




          6.03 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this Amendment or any
provisions hereof.




          6.04 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement. Delivery of an executed counterpart
by facsimile or email shall be effective as delivery of a manually executed counterpart.




          6.05 Cooperation; Other Documents. At all times following the execution of
this Amendment, each Loan Party shall execute and deliver to the Lenders and the Administrative
Agent, or shall cause to be executed and delivered to the Lenders and the Administrative Agent, and
shall do or cause to be done all such other acts and things as any of the Lenders and the
Administrative Agent may reasonably deem to be necessary or desirable to confirm their obligations
under the Loan Documents.




          6.06 Governing Law. This Amendment shall be construed in accordance with and
governed by the law of the State of New York, without regard to conflicts of law principles that
would require the application of the laws of another jurisdiction.




          6.07 Release. In further consideration of the Consenting Lenders’ execution
of this Amendment, each Loan Party hereby releases the Administrative Agent, the Collateral Agent
and each Lender and each of their respective affiliates, officers, employees, directors, agents and
attorneys (collectively, the “Releasees”) from any and all claims, demands, liabilities,
responsibilities, disputes, causes of action (whether at law or equity) and obligations of every
kind or nature whatsoever, whether liquidated or unliquidated, known or unknown, matured or
unmatured, fixed or contingent that any Loan Party may have against the Releasees which arise from
or in any way relate to the Credit Agreement, Obligations and/or Secured Obligations, any
Collateral, any Loan Document, any documents, agreements, dealings or other matters in connection
with or relating to any of the Loan Documents, and any third parties liable in whole or in part for
the Obligations or Secured Obligations, in each case to the extent arising (x) on or prior to the
date hereof or (y) out of, or relating to, actions, dealings or matters occurring




12









 




on or prior to the date hereof (including, without limitation, any actions or inactions which any
of the Releasees may have taken or omitted to take prior to the date hereof).




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



13









 





          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers hereunder duly authorized as of the date and year first above
written.




	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	/s/ Jim Pluntze
 	 
	 	 	Name:  	Jim Pluntze 	 
	 	 	Title:  	CFO 	 
	 




 









 





	 	 	 	 	 
	 	AVASTA, INC.

CLEARBLUE TECHNOLOGIES MANAGEMENT, INC.

CLEARBLUE TECHNOLOGIES/CHICAGO-WELLS, INC.

CLEARBLUE TECHNOLOGIES/LAS VEGAS, INC.

CLEARBLUE TECHNOLOGIES/LOS ANGELES, 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 CLARA, INC.

CONXION CORPORATION

 INTREPID ACQUISITION CORP.

LEXINGTON ACQUISITION CORP.

 MANAGEDOPS.COM, INC.

SUREBRIDGE ACQUISITION CORP.

SUREBRIDGE SERVICES INC.

AMERICA’S JOB EXCHANGE, INC.

(FORMERLY KNOWN AS NAVISITE

ACQUISITION SUBSIDIARY, INC.)

JUPITER HOSTING, INC.

1100 TECHNOLOGIES, INC.

ALABANZA, INC. (FORMERLY KNOWN AS

NAVI ACQUISITION CORP.)

NAVISITE DISPOSITION, LLC (FORMERLY

KNOWN AS NETASPX, LLC)

NAVISITE DISPOSITION CORP.

(FORMERLY KNOWN AS NETASPX

ACQUISITION, INC.)

NCS HOLDING COMPANY

NETWORK COMPUTING SERVICES, INC.

 	 
	 	By:  	/s/ Jim Pluntze
 	 
	 	 	Name:  	Jim Pluntze 	 
	 	 	Title:  	CFO 	 
	 




 









 





	 	 	 	 	 
	 	CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York Agency, as Administrative

Agent and Collateral Agent

 	 
	 	By:  	/s/ Eoin Roche
 	 
	 	 	Name:  	Eoin Roche 	 
	 	 	Title:  	Executive Director