exv10w1






Exhibit 10.1




 





$120,000,000




AMENDED AND RESTATED

CREDIT AGREEMENT




dated as of September 12, 2007

(amending and restating the Credit Agreement

dated as of June 8, 2007),




among




NAVISITE, INC.,

as Borrower,




and




THE SUBSIDIARY GUARANTORS PARTY HERETO,

as Guarantors,




THE LENDERS PARTY HERETO




CIBC WORLD MARKETS CORP.,

as Sole Lead Arranger, Documentation Agent and Bookrunner




CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York agency,

as Issuing Bank and Administrative Agent




and




CIT LENDING SERVICES CORPORATION,

as Syndication Agent




Cahill Gordon & Reindel llp

80 Pine Street

New York, NY 10005




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 	 	 
	DEFINITIONS
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1.01

	 	Defined Terms
	 	 	2	 
	SECTION 1.02

	 	Classification of Loans and Borrowings
	 	 	36	 
	SECTION 1.03

	 	Terms Generally
	 	 	36	 
	SECTION 1.04

	 	Accounting Terms; GAAP
	 	 	37	 
	SECTION 1.05

	 	Resolution of Drafting Ambiguities
	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 	 	 
	THE CREDITS
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2.01

	 	Commitments and Continuation of Original Term Loans
	 	 	37	 
	SECTION 2.02

	 	Loans
	 	 	38	 
	SECTION 2.03

	 	Borrowing Procedure
	 	 	39	 
	SECTION 2.04

	 	Evidence of Debt; Repayment of Loans
	 	 	40	 
	SECTION 2.05

	 	Fees
	 	 	40	 
	SECTION 2.06

	 	Interest on Loans
	 	 	41	 
	SECTION 2.07

	 	Termination and Reduction of Commitments
	 	 	42	 
	SECTION 2.08

	 	Interest Elections
	 	 	43	 
	SECTION 2.09

	 	Amortization of Term Borrowings
	 	 	44	 
	SECTION 2.10

	 	Optional and Mandatory Prepayments of Loans
	 	 	44	 
	SECTION 2.11

	 	Alternate Rate of Interest
	 	 	47	 
	SECTION 2.12

	 	Yield Protection
	 	 	47	 
	SECTION 2.13

	 	Breakage Payments
	 	 	49	 
	SECTION 2.14

	 	Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	49	 
	SECTION 2.15

	 	Taxes
	 	 	51	 
	SECTION 2.16

	 	Mitigation Obligations; Replacement of Lenders
	 	 	53	 
	SECTION 2.17

	 	Letters of Credit
	 	 	54	 
	SECTION 2.18

	 	Increase in Commitments
	 	 	59	 
	SECTION 2.19

	 	Reallocation of Original Term Loans and Additional Term Loans
	 	 	61	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 3.01

	 	Organization; Powers
	 	 	61	 
	SECTION 3.02

	 	Authorization; Enforceability
	 	 	62	 
	SECTION 3.03

	 	No Conflicts
	 	 	62	 
	SECTION 3.04

	 	Financial Statements; Projections
	 	 	62	 
	SECTION 3.05

	 	Properties
	 	 	63	 
	SECTION 3.06

	 	Intellectual Property
	 	 	64	 
	SECTION 3.07

	 	Equity Interests and Subsidiaries
	 	 	65	 
	SECTION 3.08

	 	Litigation; Compliance with Laws
	 	 	65	 






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	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 3.09

	 	Agreements
	 	 	65	 
	SECTION 3.10

	 	Federal Reserve Regulations
	 	 	66	 
	SECTION 3.11

	 	Investment Company Act
	 	 	66	 
	SECTION 3.12

	 	Use of Proceeds
	 	 	66	 
	SECTION 3.13

	 	Taxes
	 	 	66	 
	SECTION 3.14

	 	No Material Misstatements
	 	 	66	 
	SECTION 3.15

	 	Labor Matters
	 	 	67	 
	SECTION 3.16

	 	Solvency
	 	 	67	 
	SECTION 3.17

	 	Employee Benefit Plans
	 	 	67	 
	SECTION 3.18

	 	Environmental Matters
	 	 	67	 
	SECTION 3.19

	 	Insurance
	 	 	69	 
	SECTION 3.20

	 	Security Documents
	 	 	69	 
	SECTION 3.21

	 	Anti-Terrorism Law
	 	 	70	 
	SECTION 3.22

	 	netASPx Acquisition Documents; Representations and Warranties in
netASPx Acquisition Agreement
	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 	 	 
	CONDITIONS TO CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.01

	 	Conditions to Credit Extension; Conditions to Effective Date Credit Extension
	 	 	71	 
	SECTION 4.02

	 	Conditions to All Credit Extensions
	 	 	74	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 5.01

	 	Financial Statements, Reports, etc.
	 	 	75	 
	SECTION 5.02

	 	Litigation and Other Notices
	 	 	77	 
	SECTION 5.03

	 	Existence; Businesses and Properties
	 	 	78	 
	SECTION 5.04

	 	Insurance
	 	 	78	 
	SECTION 5.05

	 	Obligations and Taxes
	 	 	79	 
	SECTION 5.06

	 	Employee Benefits
	 	 	80	 
	SECTION 5.07

	 	Maintaining Records; Access to Properties and Inspections; Annual Meetings
	 	 	80	 
	SECTION 5.08

	 	Use of Proceeds
	 	 	81	 
	SECTION 5.09

	 	Compliance with Environmental Laws; Environmental Reports
	 	 	81	 
	SECTION 5.10

	 	Interest Rate Protection
	 	 	81	 
	SECTION 5.11

	 	Additional Collateral; Additional Guarantors
	 	 	81	 
	SECTION 5.12

	 	Security Interests; Further Assurances
	 	 	83	 
	SECTION 5.13

	 	Information Regarding Collateral
	 	 	84	 
	SECTION 5.14

	 	Affirmative Covenants with Respect to Leases
	 	 	84	 
	SECTION 5.15

	 	Post-Closing Matters
	 	 	84	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 	 	 
	NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 6.01

	 	Indebtedness
	 	 	85	 






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	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 6.02

	 	Liens
	 	 	86	 
	SECTION 6.03

	 	Sale and Leaseback Transactions
	 	 	88	 
	SECTION 6.04

	 	Investment, Loan and Advances
	 	 	88	 
	SECTION 6.05

	 	Mergers and Consolidations
	 	 	89	 
	SECTION 6.06

	 	Asset Sales
	 	 	90	 
	SECTION 6.07

	 	Acquisitions
	 	 	90	 
	SECTION 6.08

	 	Dividends
	 	 	91	 
	SECTION 6.09

	 	Transactions with Affiliates
	 	 	91	 
	SECTION 6.10

	 	Financial Covenants
	 	 	92	 
	SECTION 6.11

	 	Prepayments of Other Indebtedness; Modifications of
Organizational Documents and Other Documents, etc.
	 	 	95	 
	SECTION 6.12

	 	Limitation on Certain Restrictions on Subsidiaries
	 	 	95	 
	SECTION 6.13

	 	Limitation on Issuance of Capital Stock
	 	 	96	 
	SECTION 6.14

	 	Limitation on Creation of Subsidiaries
	 	 	96	 
	SECTION 6.15

	 	Business
	 	 	96	 
	SECTION 6.16

	 	Limitation on Accounting Changes
	 	 	96	 
	SECTION 6.17

	 	Fiscal Year
	 	 	96	 
	SECTION 6.18

	 	Lease Obligations
	 	 	96	 
	SECTION 6.19

	 	No Further Negative Pledge
	 	 	97	 
	SECTION 6.20

	 	Anti-Terrorism Law; Anti-Money Laundering
	 	 	97	 
	SECTION 6.21

	 	Embargoed Person
	 	 	97	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 	 	 
	GUARANTEE
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 7.01

	 	The Guarantee
	 	 	98	 
	SECTION 7.02

	 	Obligations Unconditional
	 	 	98	 
	SECTION 7.03

	 	Reinstatement
	 	 	99	 
	SECTION 7.04

	 	Subrogation; Subordination
	 	 	99	 
	SECTION 7.05

	 	Remedies
	 	 	100	 
	SECTION 7.06

	 	Instrument for the Payment of Money
	 	 	100	 
	SECTION 7.07

	 	Continuing Guarantee
	 	 	100	 
	SECTION 7.08

	 	General Limitation on Guarantee Obligations
	 	 	100	 
	SECTION 7.09

	 	Release of Guarantors
	 	 	100	 
	SECTION 7.10

	 	Right of Contribution
	 	 	100	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 	 	 
	EVENTS OF DEFAULT
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 8.01

	 	Events of Default
	 	 	101	 
	SECTION 8.02

	 	Rescission
	 	 	103	 
	SECTION 8.03

	 	Application of Proceeds
	 	 	103	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 	 	 
	THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 9.01

	 	Appointment and Authority
	 	 	104	 






-iii-









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 9.02

	 	Rights as a Lender
	 	 	105	 
	SECTION 9.03

	 	Exculpatory Provisions
	 	 	105	 
	SECTION 9.04

	 	Reliance by Agent
	 	 	106	 
	SECTION 9.05

	 	Delegation of Duties
	 	 	106	 
	SECTION 9.06

	 	Resignation of Agent
	 	 	106	 
	SECTION 9.07

	 	Non-Reliance on Agent and Other Lenders
	 	 	107	 
	SECTION 9.08

	 	No Other Duties, etc
	 	 	107	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 10.01

	 	Notices
	 	 	107	 
	SECTION 10.02

	 	Waivers; Amendment
	 	 	110	 
	SECTION 10.03

	 	Expenses; Indemnity; Damage Waiver
	 	 	113	 
	SECTION 10.04

	 	Successors and Assigns
	 	 	114	 
	SECTION 10.05

	 	Survival of Agreement
	 	 	117	 
	SECTION 10.06

	 	Counterparts; Integration; Effectiveness
	 	 	117	 
	SECTION 10.07

	 	Severability
	 	 	118	 
	SECTION 10.08

	 	Right of Setoff
	 	 	118	 
	SECTION 10.09

	 	Governing Law; Jurisdiction; Consent to Service of Process
	 	 	118	 
	SECTION 10.10

	 	Waiver of Jury Trial
	 	 	119	 
	SECTION 10.11

	 	Headings
	 	 	119	 
	SECTION 10.12

	 	Treatment of Certain Information; Confidentiality
	 	 	119	 
	SECTION 10.13

	 	USA PATRIOT Act Notice
	 	 	120	 
	SECTION 10.14

	 	Interest Rate Limitation
	 	 	120	 
	SECTION 10.15

	 	Lender Addendum
	 	 	120	 
	SECTION 10.16

	 	Obligations Absolute
	 	 	120	 
	SECTION 10.17

	 	Acknowledgements
	 	 	121	 






	 	 	 
	ANNEXES
	 	 
	 
	 	 
	Annex I

	 	Applicable Margin
	Annex II

	 	Amortization Table
	 
	 	 
	SCHEDULES
	 	 
	 
	 	 
	Schedule 1.01(a)

	 	Refinancing Indebtedness to Be Repaid
	Schedule 1.01(b)

	 	Subsidiary Guarantors
	Schedule 1.01(c)

	 	Excluded Trade Payables and Accrued Liabilities
	Schedule 3.03

	 	Governmental Approvals; Compliance with Laws
	Schedule 3.06(c)

	 	Violations or Proceedings
	Schedule 3.09

	 	Material Agreements
	Schedule 3.18

	 	Environmental Matters
	Schedule 3.19

	 	Insurance
	Schedule 3.22

	 	Acquisition Documents
	Schedule 4.01(d)

	 	Local Counsel
	Schedule 4.01(k)(vi)

	 	Landlord Access Agreements
	Schedule 6.01(b)

	 	Existing Indebtedness
	Schedule 6.02(c)

	 	Existing Liens






-iv-









 






	 	 	 
	Schedule 6.04(b)

	 	Existing Investments
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit A

	 	Form of Administrative Questionnaire
	Exhibit B

	 	Form of Assignment and Assumption
	Exhibit C

	 	Form of Borrowing Request
	Exhibit D

	 	Form of Compliance Certificate
	Exhibit E

	 	Form of Interest Election Request
	Exhibit F

	 	Form of Joinder Agreement
	Exhibit G

	 	Form of Landlord Access Agreement
	Exhibit H

	 	Form of LC Request
	Exhibit I

	 	Form of Lender Addendum
	Exhibit J-1

	 	Form of Additional Term Note
	Exhibit J-2

	 	Form of Revolving Note
	Exhibit K-1

	 	Form of Perfection Certificate
	Exhibit K-2

	 	Form of Perfection Certificate Supplement
	Exhibit L

	 	Conformed Copy of Security Agreement
	Exhibit M

	 	Form of Opinion of Company Counsel
	Exhibit N

	 	Form of Solvency Certificate
	Exhibit O

	 	Form of Intercompany Note
	Exhibit P

	 	Form of Non-Bank Certificate







-v-









 





AMENDED AND RESTATED

CREDIT AGREEMENT




          This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of September 12, 2007,
among NAVISITE, INC., a Delaware corporation (“Borrower”), the Subsidiary Guarantors (such term and
each other capitalized term used but not defined herein having the meaning given to it in
Article I), 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 “Original Credit Agreement”) dated as of June
8, 2007, among Borrower, the Subsidiary Guarantors, the Sole Lead Arranger, the Documentation
Agent, the Bookrunner, the Syndication Agent, the Issuing Bank, the Administrative Agent, the
Collateral Agent and the lenders party thereto (the “Existing Lenders”), the Existing Lenders
committed to extend to Borrower a $10,000,000 revolving credit facility (under which not more than
$2,000,000 of revolving loans will be drawn on the Effective Date prior to giving effect to the
transactions contemplated hereby (the “Existing Revolving Loans”)) and a term loan facility under
which term loans in an aggregate principal amount of $90,000,000 (the “Original Term Loans”) were
made on the Original Closing Date, of which $89,775,000 is outstanding as of the Effective Date;




          WHEREAS, Borrower, the Subsidiary Guarantors, the Sole Lead Arranger, the Documentation Agent,
the Bookrunner, the Syndication Agent, the Issuing Bank, the Administrative Agent, the Collateral
Agent and the Existing Lenders agreed to amend the Original Credit Agreement and entered into the
Amendment, Waiver and Consent No. 1 dated August 9, 2007 to the Original Credit Agreement (the
“Amendment No. 1”) whereby, among other things, the Administrative Agent and the Existing Lenders
(i) consented to the use by Borrower of all or any portion of the Capex Term Loan Proceeds to pay
the Acquisition Consideration and related expenses for the two Permitted Acquisitions identified
therein as Specified Acquisitions (the “Specified Acquisitions”) and (ii) waived the applicability
of certain provisions of the Original Credit Agreement relating to such Specified Acquisitions and
any Default arising from such application of Capex Term Loan Proceeds;




          WHEREAS, Borrower and Merger Sub, a direct Wholly Owned Subsidiary of Borrower and a
Subsidiary Guarantor, have entered into an Agreement and Plan of Merger, dated as of September 12,
2007 (as amended, supplemented or otherwise modified from time to time in accordance with the
provisions hereof and thereof, the “netASPx Acquisition Agreement”), with netASPx, Inc., a Delaware
corporation (the “netASPx Acquired Business”), to acquire (the “netASPx Acquisition”) the netASPx
Acquired Business;




          WHEREAS, the netASPx Acquisition will be effected by a merger (the “netASPx Merger”) of Merger
Sub with and into the netASPx Acquired Business, with the netASPx Acquired Business surviving the
netASPx Merger, and the subsequent merger of the netASPx Acquired Business into a limited liability
company to be formed on or after the date hereof (“netASPx LLC”) with the




 









 







netASPx LLC as the surviving entity and the netASPx Acquisition will be consummated on the
Effective Date;




          WHEREAS, the parties hereto desire to amend and restate the Original Credit Agreement in its
entirety on the Effective Date to, inter alia, provide for Additional Term Loans to Borrower in
amounts equal to the Additional Term Loan Commitments the proceeds of which shall be utilized to
fund the netASPx Transactions, on and subject to the terms and conditions of this Agreement and the
Amendment Agreement dated as of the date hereof among the parties hereto (the “Amendment
Agreement”);




          WHEREAS, pursuant to the Amendment Agreement the parties hereto have agreed to amend and
restate the Original Credit Agreement in its entirety to read as set forth in this Agreement, and
it has been agreed by the parties to the Original Credit Agreement that the Original Term Loans
outstanding as of the Effective Date and other “Obligations” under (and as defined in) the Original
Credit Agreement (including indemnities) shall be governed by and deemed to be outstanding under
this Agreement with the intent that the terms of this Agreement shall supersede the terms of the
Original Credit Agreement (which shall hereafter have no further effect upon the parties thereto
other than with respect to any action, event, representation, warranty or covenant occurring, made
or applying prior to the Effective Date), and all references to the Original Credit Agreement in
any Loan Document or other document or instrument delivered in connection therewith shall be deemed
to refer to this Agreement and the provisions hereof; provided that (1) the grants of security
interests, Mortgages and Liens under and pursuant to the Loan Documents shall continue unaltered,
and each other Loan Document shall continue in full force and effect in accordance with its terms
except as expressly amended thereby or hereby, and the parties hereto hereby ratify and confirm the
terms thereof as being in full force and effect and unaltered by this Agreement and (2) it is
agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or
reborrowing of any Obligation under the Original Credit Agreement or any other Loan Document except
as expressly modified by this Agreement, nor does it operate as a waiver of any right, power or
remedy of any Lender under any Loan Document (other than the Original Credit Agreement);




          WHEREAS, all Secured Obligations are and shall continue to be secured by all collateral on
which a Lien is granted to the Collateral Agent pursuant to any Loan Document; and




          WHEREAS, the proceeds of the Additional Term Loans and the Revolving Loans are to be used in
accordance with Section 3.12;




          NOW, THEREFORE, the parties hereto hereby agree to amend and restate the Original Credit
Agreement, and the Original Credit Agreement is hereby amended and restated in its entirety as
follows:




ARTICLE I




DEFINITIONS




          SECTION 1.01 Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:




          “ABR”, when used in reference to any Loan or Borrowing, is used when such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate
Base Rate.




-2-









 








          “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.




          “ABR Loan” shall mean any ABR Term Loan or ABR Revolving Loan.




          “ABR Revolving Loan” shall mean any Revolving Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of Article II.




          “ABR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to
the Alternate Base Rate in accordance with the provisions of Article II.




          “Acquisition Consideration” shall mean the purchase consideration for any Permitted
Acquisition and all other payments by Borrower or any of its Subsidiaries in exchange for, or as
part of, or in connection with, any Permitted Acquisition, whether paid in cash or by exchange of
Equity Interests or of properties or otherwise and whether payable at or prior to the consummation
of such Permitted Acquisition or deferred for payment at any future time, whether or not any such
future payment is subject to the occurrence of any contingency, and includes any and all payments
representing the purchase price and any assumptions of Indebtedness, “earn-outs” and other
agreements to make any payment the amount of which is, or the terms of payment of which are, in any
respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of
any person or business, severance, bonuses, retention payments, working capital adjustments, filing
and registration fees, listing fees, transaction fees and expenses, restructuring charges and all
other amounts and obligations related to or incurred in connection with such acquisition; provided
that any such future payment that is subject to a contingency shall be considered Acquisition
Consideration only to the extent of the reserve, if any, required under GAAP at the time of such
sale to be established in respect thereof by Borrower or any of its Subsidiaries.




          “Acquisition Transactions” means, collectively, the netASPx Transactions and the Specified
Acquisitions, and individually, any of the foregoing transactions.




          “Additional Term Loan Commitment” shall mean, with respect to each Additional Term Loan
Lender, the commitment, if any, of such Additional Term Loan Lender to make an Additional Term Loan
hereunder on the Effective Date in the amount set forth in Schedule I to the Lender Addendum
executed and delivered by such Additional Term Loan Lender. The initial aggregate amount of the
Lenders’ Additional Term Loan Commitments is $20.0 million.




          “Additional Term Loan Lender” shall have the meaning given to such term in Section
2.01.




          “Additional Term Loans” shall mean the loans made by the Lenders to Borrower pursuant to
Section 2.01(a).




          “Administrative Agent” shall have the meaning assigned to such term in the preamble hereto and
includes each other person appointed as the successor pursuant to Article X.




          “Administrative Agent Fee” shall have the meaning assigned to such term in Section
2.05(b).




          “Administrative Questionnaire” shall mean an Administrative Questionnaire in substantially the
form of Exhibit A (or if delivered prior to the Effective Date, Exhibit A to the Original
Credit Agreement).




-3-









 








          “Affiliate” shall mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified; provided, however, that, for purposes of
Section 6.09, the term “Affiliate” shall also include (i) any person that directly or
indirectly owns more than 10% of any class of Equity Interests of the person specified or (ii) any
person that is an executive officer or director of the person specified.




          “Agents” shall mean the Administrative Agent and the Collateral Agent; and “Agent” shall mean
any of them.




          “Agreement” shall mean, on any date, the Original Credit Agreement as amended and restated
hereby and as the same may thereafter from time to time be further amended, supplemented, amended
and restated or otherwise modified and in effect on such date in accordance with the terms hereof.




          “Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upward, if necessary,
to the nearest 1/100th of 1%) equal to the greater of (a) the Base Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 0.50%. If the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of
the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of
the preceding sentence until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Base Rate or the Federal Funds Effective
Rate shall be effective on the effective date of such change in the Base Rate or the Federal Funds
Effective Rate, respectively.




          “Amendment Agreement” shall have the meaning assigned to such term in the recitals hereto.




          “Amendment No. 1” shall have the meaning assigned to such term in the recitals hereto.




          “Annualized Basis” shall mean with respect to a determination of Consolidated Interest Expense
or the principal amount of scheduled amortization payments on Indebtedness of Borrower and its
Subsidiaries scheduled to be repaid or prepaid for any period ending on or prior to April 30, 2008,
an amount equal to:





     (a) for the four quarter period ending July 31, 2007, the amount of such item for the
quarter ending July 31, 2007 (adjusted on a pro forma basis to give effect to the Original
Transactions and the Current Transactions as though they had occurred on April 30, 2007)
multiplied by 4;




     (b) for the four quarter period ending October 31, 2007, the amount of such item for
the two quarter period ending October 31, 2007 (adjusted on a pro forma basis to give effect
to the Original Transactions and the Current Transactions as though they had occurred on
April 30, 2007) multiplied by 2;




     (c) for the four quarter period ending January 31, 2008, the amount of such item for
the three quarter period ending January 31, 2008 (adjusted on a pro forma basis to give
effect to



-4-









 







the Original Transactions and the Current Transactions as though they had occurred on
April 30, 2007) multiplied by 4/3; and




     (d) for the four quarter period ending April 30, 2008, the amount of such item for the
four quarter period ending April 30, 2008 (adjusted on a pro forma basis to give effect to
the Original Transactions and the Current Transactions as though they had occurred on April
30, 2007).



          “Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 3.21.




          “Applicable Margin” shall mean, for any day, with respect to any Revolving Loan or Term Loan,
as the case may be, the applicable percentage set forth in Annex I under the appropriate
caption.




          “AppliedTheory Notes” shall mean the two unsecured promissory notes totaling $6.0 million
issued by the AppliedTheory bankruptcy estate on June 13, 2006, bearing interest at 8% per annum.




          “Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.




          “Asset Sale” shall mean (a) any conveyance, sale, lease, sublease, assignment, transfer or
other disposition (including by way of merger or consolidation and including any Sale and Leaseback
Transaction) of any property excluding sales of inventory and dispositions of cash and cash
equivalents, in each case, in the ordinary course of business, by Borrower or any of its
Subsidiaries and (b) any issuance or sale of any Equity Interests of any Subsidiary of Borrower, in
each case, to any person other than (i) Borrower, (ii) any Subsidiary Guarantor or (iii) other than
for purposes of Section 6.06, any other Subsidiary.




          “Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is required by Section
10.04(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
B hereto (or, if delivered prior to the Effective Date, Exhibit B to the Original Credit
Agreement), or any other form approved by the Administrative Agent.




          “Atlantic” means Atlantic Investors, LLC, a Delaware limited liability company.




          “Attributable Indebtedness” shall mean, when used with respect to any Sale and Leaseback
Transaction, as at the time of determination, the present value (discounted at a rate equivalent to
Borrower’s then-current weighted average cost of funds for borrowed money as at the time of
determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in any such Sale and Leaseback
Transaction.




          “Bailee Letter” shall have the meaning assigned thereto in the Security Agreement.




          “Base Rate” shall mean, for any day, a rate per annum that is equal to the corporate base rate
of interest established by the Administrative Agent from time to time; each change in the Base Rate
shall be effective on the date such change is effective. The corporate base rate is not
necessarily the lowest rate charged by the Administrative Agent to its customers.




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          “Board” shall mean the Board of Governors of the Federal Reserve System of the United States.




          “Board of Directors” shall mean, with respect to any person, (i) in the case of any
corporation, the board of directors of such person, (ii) in the case of any limited liability
company, the board of managers of such person, (iii) in the case of any partnership, the Board of
Directors of the general partner of such person and (iv) in any other case, the functional
equivalent of the foregoing.




          “Borrower” shall have the meaning assigned to such term in the preamble hereto.




          “Borrowing” shall mean Loans of the same Class and Type, made, converted or continued on the
same date and, in the case of LIBOR Loans, as to which a single Interest Period is in effect.




          “Borrowing Request” shall mean a request by Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit C hereto (or, if delivered
prior to the Effective Date, Exhibit B to the Original Credit Agreement), or such other form as
shall be approved by the Administrative Agent.




          “Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in
New York City are authorized or required by law to close; provided, however, that when used in
connection with a LIBOR Loan, the term “Business Day” shall also exclude any day on which banks are
not open for dealings in dollar deposits in the London interbank market.




          “Capital Assets” shall mean, with respect to any person, all equipment, fixed assets and Real
Property or improvements of such person, or replacements or substitutions therefor or additions
thereto, that, in accordance with GAAP, have been or should be reflected as additions to property,
plant or equipment on the balance sheet of such person.




          “Capital Expenditures” shall mean, for any period, without duplication, all expenditures made
directly or indirectly by Borrower and its Subsidiaries during such period for Capital Assets
(whether paid in cash or other consideration, financed by the incurrence of Indebtedness or accrued
as a liability), but excluding (i) expenditures made in connection with the replacement,
substitution or restoration of property pursuant to Section 2.10(f) and (ii) any portion of
such increase attributable solely to acquisitions of property, plant and equipment in Permitted
Acquisitions. For purposes of this definition, the purchase price of equipment or other fixed
assets that are purchased simultaneously with the trade-in of existing assets or with insurance
proceeds shall be included in Capital Expenditures only to the extent of the gross amount by which
such purchase price exceeds the credit granted by the seller of such assets for the assets being
traded in at such time or the amount of such insurance proceeds, as the case may be.




          “Capital Lease Obligations” of any person shall mean the obligations of such person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Cash Equivalents” shall mean, as to any person, (a) securities issued, or directly,
unconditionally and fully guaranteed or insured, by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United States is pledged in
support thereof) having maturities of not more than one year from the date of acquisition by such
person; (b) time deposits and




-6-









 







certificates of deposit of any Lender or any commercial bank having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the United States, any
state thereof or the District of Columbia having, capital and surplus aggregating in excess of
$500.0 million and a rating of “A” (or such other similar equivalent rating) or higher by at least
one nationally recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) with maturities of not more than one year from the date of acquisition by such
person; (c) repurchase obligations with a term of not more than 30 days for underlying securities
of the types described in clause (a) above entered into with any bank meeting the qualifications
specified in clause (b) above, which repurchase obligations are secured by a valid perfected
security interest in the underlying securities; (d) commercial paper issued by any person
incorporated in the United States rated at least A-1 or the equivalent thereof by Standard & Poor’s
Rating Service or at least P-1 or the equivalent thereof by Moody’s Investors Service Inc., and in
each case maturing not more than one year after the date of acquisition by such person; (e)
investments in money market funds substantially all of whose assets are comprised of securities of
the types described in clauses (a) through (d) above; and (f) demand deposit accounts maintained in
the ordinary course of business.




          “Cash Interest Expense” shall mean, for any period, Consolidated Interest Expense for such
period, less the sum of (a) interest on any debt paid by the increase in the principal amount of
such debt including by issuance of additional debt of such kind, (b) items described in clause (c)
or, other than to the extent paid in cash, clause (g) of the definition of “Consolidated Interest
Expense” and (c) gross interest income of Borrower and its Subsidiaries for such period.




          “Casualty Event” shall mean any involuntary loss of title, any involuntary loss of, damage to
or any destruction of, or any condemnation or other taking (including by any Governmental
Authority) of, any property of Borrower or any of its Subsidiaries. “Casualty Event” shall include
but not be limited to any taking of all or any part of any Real Property of any person or any part
thereof, in or by condemnation or other eminent domain proceedings pursuant to any Requirement of
Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any
Real Property of any person or any part thereof by any Governmental Authority, civil or military,
or any settlement in lieu thereof.




          “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. § 9601 et seq. and all implementing regulations.




          “Change in Control” means, at any time, (i) any Person or “group” (within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act) other than Atlantic or an affiliate of Atlantic shall
beneficially own and control 50% or more of the then-outstanding voting interests in the Equity
Interests of Borrower; (ii) Borrower shall cease to, directly or indirectly, beneficially own and
control 100% on a fully diluted basis of the economic and voting interest in the Equity Interests
of any Guarantor; or (iii) the majority of the seats (other than vacant seats) on the board of
directors (or similar governing body) of Borrower cease to be occupied by Persons who either (a)
were members of the board of directors of Borrower on the Original Closing Date, or (b) were
nominated for election by the board of directors of Borrower, a majority of whom were directors on
the Original Closing Date or whose election was previously approved by a majority of such
directors.




          “Change in Law” shall mean the occurrence, after the Original Closing Date, of any of the
following: (a) the adoption or taking into effect of any law, treaty, order, policy, rule or
regulation, (b) any change in any law, treaty, order, policy, rule or regulation or in the
administration, interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether or not having the force of law)
by any Governmental Authority.




-7-









 








          “Charges” shall have the meaning assigned to such term in Section 10.14.




          “Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans or Term Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a Revolving Commitment or Term Loan
Commitment, in each case, under this Agreement as originally in effect or pursuant to Section
2.18, of which such Loan, Borrowing or Commitment shall be a part. The Original Term Loans and
the Additional Term Loans shall constitute a single Class.




          “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.




          “Collateral” shall mean, collectively, all of the Security Agreement Collateral, Mortgaged
Property and all other property of whatever kind and nature subject or purported to be subject from
time to time to a Lien under any Security Document.




          “Collateral Agent” shall have the meaning assigned to such term in the preamble hereto.




          “Commercial Letter of Credit” shall mean any letter of credit or similar instrument issued for
the purpose of providing credit support in connection with the purchase of materials, goods or
services by Borrower or any of its Subsidiaries in the ordinary course of their businesses.




          “Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment,
Original Term Loan Commitment or Additional Term Loan Commitment, and any Commitment to make Term
Loans or Revolving Loans of a new Class extended by such Lender as provided in Section
2.18.




          “Companies” shall mean Borrower and its Subsidiaries; and “Company” shall mean any one of
them.




          “Compliance Certificate” shall mean a certificate of a Financial Officer substantially in the
form of Exhibit D hereto (or, if delivered prior to the Effective Date, Exhibit D to the
Original Credit Agreement).




          “Confidential Information Memorandum” shall mean that certain confidential information
memorandum dated as of May, 2007, as amended and supplemented as of the Original Closing Date.




          “Consolidated Amortization Expense” shall mean, for any period, the amortization expense of
Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP.




          “Consolidated Current Assets” shall mean, as at any date of determination, the total assets of
Borrower and its Subsidiaries which may properly be classified as current assets on a consolidated
balance sheet of Borrower and its Subsidiaries in accordance with GAAP, excluding cash and Cash
Equivalents.




          “Consolidated Current Liabilities” shall mean, as at any date of determination, the total
liabilities of Borrower and its Subsidiaries which may properly be classified as current
liabilities (other than the current portion of any Loans) on a consolidated balance sheet of
Borrower and its Subsidiaries in accordance with GAAP.




-8-









 








          “Consolidated Depreciation Expense” shall mean, for any period, the depreciation expense of
Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP.




          “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period,
adjusted by (x) adding thereto, in each case only to the extent (and in the same proportion)
deducted in determining such Consolidated Net Income and without duplication (and with respect to
the portion of Consolidated Net Income attributable to any Subsidiary of Borrower only if a
corresponding amount would be permitted at the date of determination to be distributed to Borrower
by such Subsidiary without prior approval (that has not been obtained), pursuant to the terms of
its Organizational Documents and all agreements, instruments and Requirements of Law applicable to
such Subsidiary or its equityholders):





     (a) Consolidated Interest Expense for such period,




     (b) Consolidated Amortization Expense for such period,




     (c) Consolidated Depreciation Expense for such period,




     (d) Consolidated Tax Expense for such period,




     (e) costs and expenses directly incurred in connection with the Original Transactions
and the Current Transactions,




     (f) the aggregate amount of all other non-cash charges reducing Consolidated Net Income
(excluding any non-cash charge that results in an accrual of a reserve for cash charges in
any future period) for such period,




     (g) non-cash stock based compensation expense incurred in connection with any options
or restricted stock issued by Borrower in any Fiscal Year in connection with Borrower’s
stock incentive plan,




     (h) employee severance expenses,




     (i) non-cash impairment charges taken in respect of leases of real property and any
related improvements thereto, and




     (j) expenses or charges incurred in connection with any proposed acquisition or
financing transaction, in each case, which is not consummated.


(y) subtracting therefrom the aggregate amount of all non-cash items increasing Consolidated Net
Income (other than the accrual of revenue or recording of receivables in the ordinary course of
business) for such period.




          Other than for purposes of calculating Excess Cash Flow, Consolidated EBITDA shall be
calculated on a Pro Forma Basis to give effect to any Permitted Acquisition (including, without
limitation, the netASPx Acquisition) and Asset Sales (other than any dispositions in the ordinary
course of business) consummated at any time on or after the first day of the Test Period and prior
to the date of determination as if each such Permitted Acquisition had been effected on the first
day of such period and as if each such Asset Sale had been consummated on the day prior to the
first day of such period.




-9-









 








          “Consolidated Fixed Charge Coverage Ratio” shall mean, for any Test Period, the ratio of (a)
Consolidated EBITDA for such Test Period to (b) Consolidated Fixed Charges for such Test Period.




          “Consolidated Fixed Charges” shall mean, for any period, the sum, without duplication, of





     (a) Consolidated Interest Expense for such period (provided that if such period ends on
or prior to July 31, 2008, the amount of such interest expense shall be determined on an
Annualized Basis);




     (b) the aggregate amount of Capital Expenditures for such period (other than to the
extent financed by Excluded Issuances or to the extent made with Permitted UK Datasite
Buildout Indebtedness);




     (c) all cash payments in respect of income taxes made during such period (net of any
cash refund in respect of income taxes actually received during such period);




     (d) the principal amount of all scheduled amortization payments on all Indebtedness
(including the principal component of all Capital Lease Obligations, but excluding such
amortization payments on Indebtedness incurred to finance Capital Expenditures included in
clause (b) above in such period or any prior period) of Borrower and its Subsidiaries for
such period (as determined on the first day of the respective period) (provided that if such
period ends on or prior to April 30, 2008, the amount of such Indebtedness scheduled to be
paid or prepaid shall be determined on an Annualized Basis);




     (e) the product of (i) all dividend payments on any series of Disqualified Capital
Stock of Borrower or any of its Subsidiaries (other than dividend payments to Borrower or
any of its Subsidiaries) multiplied by (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the then current combined federal, state and local
statutory tax rate of Borrower and its Subsidiaries, expressed as a decimal; and




     (f) the product of (i) all cash dividend payments on any Preferred Stock (other than
Disqualified Capital Stock) of Borrower or any of its Subsidiaries (other than dividend
payments to Borrower or any of its Subsidiaries) multiplied by (ii) a fraction, the
numerator of which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of Borrower and its Subsidiaries,
expressed as a decimal.



          “Consolidated Indebtedness” shall mean, as at any date of determination, the aggregate amount
of all Indebtedness and all LC Exposure of Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.




          “Consolidated Interest Expense” shall mean, for any period, the total consolidated interest
expense of Borrower and its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP plus, without duplication:





     (a) imputed interest on Capital Lease Obligations and Attributable Indebtedness of
Borrower and its Subsidiaries for such period;



-10-









 






     (b) commissions, discounts and other fees and charges owed by Borrower or any of its
Subsidiaries with respect to letters of credit securing financial obligations, bankers’
acceptance financing and receivables financings for such period;




     (c) amortization of debt issuance costs, debt discount or premium and other financing
fees and expenses incurred by Borrower or any of its Subsidiaries for such period;




     (d) cash contributions to any employee stock ownership plan or similar trust made by
Borrower or any of its Subsidiaries to the extent such contributions are used by such plan
or trust to pay interest or fees to any person (other than Borrower or a Wholly Owned
Subsidiary) in connection with Indebtedness incurred by such plan or trust for such period;




     (e) all interest paid or payable with respect to discontinued operations of Borrower or
any of its Subsidiaries for such period;




     (f) the interest portion of any deferred payment obligations of Borrower or any of its
Subsidiaries for such period;




     (g) all interest on any Indebtedness of Borrower or any of its Subsidiaries of the type
described in clause (f) or (k) of the definition of “Indebtedness” for such period;


provided that (a) to the extent directly related to the Original Transactions and the netASPx
Transactions, debt issuance costs, debt discount or premium and other financing fees and expenses
shall be excluded from the calculation of Consolidated Interest Expense and (b) Consolidated
Interest Expense shall be calculated after giving effect to Hedging Agreements (including
associated costs), but excluding unrealized gains and losses with respect to Hedging Agreements.




          Consolidated Interest Expense shall be calculated on a Pro Forma Basis to give effect to any
Indebtedness incurred, assumed or permanently repaid or extinguished in connection with the
Original Transactions and the Current Transactions, any Permitted Acquisitions and Asset Sales
(other than any dispositions in the ordinary course of business) as if such incurrence, assumption,
repayment or extinguishing had been effected on the first day of such period.




          “Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) of
Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded from such net income (to the extent otherwise included therein),
without duplication:





     (a) the net income (or loss) of any person (other than a Subsidiary of Borrower) in
which any person other than Borrower and its Subsidiaries has an ownership interest, except
to the extent that cash in an amount equal to any such income has actually been received by
Borrower or (subject to clause (b) below) any of its Subsidiaries during such period;




     (b) the net income of any Subsidiary of Borrower during such period to the extent that
the declaration or payment of dividends or similar distributions by such Subsidiary of that
income is not permitted by operation of the terms of its Organizational Documents or any
agreement, instrument or Requirement of Law applicable to that Subsidiary during such
period, except that Borrower’s equity in net loss of any such Subsidiary for such period
shall be included in determining Consolidated Net Income;



-11-









 






     (c) any gain (or loss), together with any related provisions for taxes on any such gain
(or the tax effect of any such loss), realized during such period by Borrower or any of its
Subsidiaries upon any Asset Sale (other than any dispositions in the ordinary course of
business) by Borrower or any of its Subsidiaries;




     (e) gains and losses due solely to fluctuations in currency values and the related tax
effects determined in accordance with GAAP for such period;




     (f) earnings resulting from any reappraisal, revaluation or write-up of assets;




     (g) unrealized gains and losses with respect to Hedging Obligations for such period;
and




     (h) any extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss),
together with any related provision for taxes on any such gain (or the tax effect of any
such loss), recorded or recognized by Borrower or any of its Subsidiaries during such
period.



          For purposes of this definition of “Consolidated Net Income,” “nonrecurring” means any gain or
loss as of any date that is not reasonably likely to recur within the two years following such
date.




          “Consolidated Tax Expense” shall mean, for any period, the tax expense of Borrower and its
Subsidiaries, for such period, determined on a consolidated basis in accordance with GAAP.




          “Contested Collateral Lien Conditions” shall mean, with respect to any Permitted Lien of the
type described in clauses (a), (b), (e) and (f) of Section 6.02, the following conditions:





     (a) Borrower shall cause any proceeding instituted contesting such Lien to stay the
sale or forfeiture of any portion of the Collateral on account of such Lien;




     (b) at the option and at the request of the Administrative Agent, to the extent such
Lien is in an amount in excess of $250,000, the appropriate Loan Party shall maintain cash
reserves in an amount sufficient to pay and discharge such Lien and the Administrative
Agent’s reasonable estimate of all interest and penalties related thereto; and




     (c) such Lien shall in all respects be subject and subordinate in priority to the Lien
and security interest created and evidenced by the Security Documents, except if and to the
extent that the Requirement of Law creating, permitting or authorizing such Lien provides
that such Lien is or must be superior to the Lien and security interest created and
evidenced by the Security Documents.



          “Contingent Obligation” shall mean, as to any person, any obligation, agreement, understanding
or arrangement of such person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations (“primary obligations”) of any other person (the “primary obligor”)
in any manner, whether directly or indirectly, including any obligation of such person, whether or
not contingent, (a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor; (c) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor




-12-









 







to make payment of such primary obligation; (d) with respect to bankers’ acceptances, letters
of credit and similar credit arrangements, until a reimbursement obligation arises (which
reimbursement obligation shall constitute Indebtedness); or (e) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof; provided, however,
that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or
collection in the ordinary course of business or any product warranties. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation is made (or, if less, the
maximum amount of such primary obligation for which such person may be liable, whether singly or
jointly, pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming
such person is required to perform thereunder) as determined by such person in good faith.




          “Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have
meanings correlative thereto.




          “Control Agreement” shall have the meaning assigned to such term in the Security Agreement.




          “Credit Extension” shall mean, as the context may require, (i) the making of a Loan by a
Lender or (ii) the issuance of any Letter of Credit, or the amendment, extension or renewal of any
existing Letter of Credit, by the Issuing Bank.




          “Current Transactions” shall mean, collectively, (i) the transactions to occur on or prior to
the Effective Date pursuant to the Loan Documents, including (a) the execution, delivery and
performance of the Loan Documents and the borrowings of Additional Term Loans hereunder; and (b)
the payment of all fees and expenses to be paid on or prior to the Effective Date and owing in
connection with the foregoing and (ii) the netASPx Acquisition.




          “Debt Issuance” shall mean the incurrence by Borrower or any of its Subsidiaries of any
Indebtedness after the Original Closing Date (other than as permitted by Section 6.01).




          “Debt Service” shall mean, for any period, Cash Interest Expense for such period plus
scheduled principal amortization of all Indebtedness for such period.




          “Default” shall mean any event, occurrence or condition which is, or upon notice, lapse of
time or both would constitute, an Event of Default.




          “Default Rate” shall have the meaning assigned to such term in Section 2.06(c).




          “Disqualified Capital Stock” shall mean any Equity Interest which, by its terms (or by the
terms of any security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior
to the first anniversary of the Final Maturity Date, (b) is convertible into or exchangeable
(unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity
Interests referred to in (a) above, in each case at any time on or prior to the first anniversary
of the Final Maturity Date, or (c) contains any repurchase obligation which may




-13-









 







come into effect prior to payment in full of all Obligations; provided, however, that any
Equity Interests that would not constitute Disqualified Capital Stock but for provisions thereof
giving holders thereof (or the holders of any security into or for which such Equity Interests is
convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such
Equity Interests upon the occurrence of a change in control or an asset sale occurring prior to the
first anniversary of the Final Maturity Date shall not constitute Disqualified Capital Stock if
such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests
pursuant to such provisions prior to the repayment in full of the Obligations. Notwithstanding the
foregoing, the netASPx Seller Convertible Preferred Stock shall not constitute Disqualified Capital
Stock.




          “Dividend” with respect to any person shall mean that such person has declared or paid a
dividend or returned any equity capital to the holders of its Equity Interests or authorized or
made any other distribution, payment or delivery of property (other than Qualified Capital Stock of
such person) or cash to the holders of its Equity Interests as such, or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity
Interests outstanding (or any options or warrants issued by such person with respect to its Equity
Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any
of its Subsidiaries to purchase or otherwise acquire for consideration any of the Equity Interests
of such person outstanding (or any options or warrants issued by such person with respect to its
Equity Interests). Without limiting the foregoing, “Dividends” with respect to any person shall
also include all payments made or required to be made by such person with respect to any stock
appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting
aside of any funds for the foregoing purposes.




          “Documentation Agent” shall have the meaning assigned to such term in the preamble hereto.




          “Dollars”, “dollars” or “$” shall mean lawful money of the United States.




          “Domestic Subsidiary” shall mean any Subsidiary that is organized or existing under the laws
of the United States, any state thereof or the District of Columbia.




          “Effective Date” shall mean September 12, 2007, the date of the consummation of the netASPx
Acquisition and the making of the Additional Term Loans.




          “Eligible Assignee” shall mean (a) if the assignment does not include assignment of a
Revolving Commitment, (i) any Lender, (ii) an Affiliate of any Lender, (iii) an Approved Fund and
(iv) any other person approved by the Administrative Agent (such approval not to be unreasonably
withheld or delayed) and (b) if the assignment includes assignment of a Revolving Commitment, (i)
any Revolving Lender and (ii) any other person approved by the Administrative Agent, the Issuing
Bank and Borrower (each such approval not to be unreasonably withheld or delayed); provided that
(x) no approval of Borrower shall be required during the continuance of a Default or prior to the
completion of the primary syndication of the Additional Term Loan Commitments or Additional Term
Loans (as determined by the Sole Lead Arranger) and (y) “Eligible Assignee” shall not include
Borrower or any of its Affiliates or Subsidiaries or any natural person.




          “Embargoed Person” shall have the meaning assigned to such term in Section 6.21.




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          “Environment” shall mean ambient air, indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surface or subsurface strata, natural
resources, the workplace or as otherwise defined in any Environmental Law.




          “Environmental Claim” shall mean any claim, notice, demand, order, action, suit, proceeding or
other communication alleging liability for or obligation with respect to any investigation,
remediation, removal, cleanup, response, corrective action, damages to natural resources, personal
injury, property damage, fines, penalties or other costs resulting from, related to or arising out
of (i) the presence, Release or threatened Release in or into the Environment of Hazardous Material
at any location or (ii) any violation or alleged violation of any Environmental Law, and shall
include any claim seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from, related to or arising out of the presence, Release or threatened
Release of Hazardous Material or alleged injury or threat of injury to health, safety or the
Environment.




          “Environmental Law” shall mean any and all present and future treaties, laws, statutes,
ordinances, regulations, rules, decrees, orders, judgments, consent orders, consent decrees, code
or other binding requirements, and the common law, relating to protection of public health or the
Environment, the Release or threatened Release of Hazardous Material, natural resources or natural
resource damages, or occupational safety or health, and any and all Environmental Permits.




          “Environmental Permit” shall mean any permit, license, approval, registration, notification,
exemption, consent or other authorization required by or from a Governmental Authority under
Environmental Law.




          “Equipment” shall have the meaning assigned to such term in the Security Agreement.




          “Equity Interest” shall mean, with respect to any person, any and all shares, interests,
participations or other equivalents, including membership interests (however designated, whether
voting or nonvoting), of equity of such person, including, if such person is a partnership,
partnership interests (whether general or limited) and any other interest or participation that
confers on a person the right to receive a share of the profits and losses of, or distributions of
property of, such partnership, whether outstanding on the Original Closing Date or issued after the
Original Closing Date, but excluding debt securities convertible or exchangeable into such equity.




          “Equity Issuance” shall mean, without duplication, (i) any issuance or sale by Borrower after
the Original Closing Date of any Equity Interests in Borrower (including any Equity Interests
issued upon exercise of any warrant or option) or any warrants or options to purchase Equity
Interests or (ii) any contribution to the capital of Borrower; provided, however, that an Equity
Issuance shall not include (v) the issuance by the Borrower of the netASPx Seller Convertible
Preferred Stock or the issuance of common stock upon conversion of the netASPx Seller Convertible
Preferred Stock, (w) any issuance of common stock of Borrower to the extent such Net Cash Proceeds
are used to redeem netASPx Seller Convertible Preferred Stock, (x) any Debt Issuance, (y) any such
sale or issuance by Borrower of its Equity Interests (including its Equity Interests issued upon
exercise of any warrant or option or warrants or options to purchase its Equity Interests but
excluding Disqualified Capital Stock), in each case, to directors, officers or employees of any
Company pursuant to one or more stock option plans or agreements approved by the Board of Directors
of the Company or (z) any Excluded Issuance.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.




-15-









 








          “ERISA Affiliate” shall mean, with respect to any person, any trade or business (whether or
not incorporated) that, together with such person, is treated as a single employer under Section
414 of the Code.




          “ERISA Event” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived by regulation); (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required contribution to a
Multiemployer Plan; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (e)
the incurrence by any Company or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (f) the receipt by any Company or any of its
ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, or the occurrence of
any event or condition which could reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; (g) the incurrence by any
Company or any of its ERISA Affiliates of any liability with respect to the withdrawal from any
Plan or Multiemployer Plan; (h) the receipt by any Company or its ERISA Affiliates of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (i)
the “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA with
respect to a Plan; (j) the making of any amendment to any Plan which could result in the imposition
of a lien or the posting of a bond or other security; and (k) the occurrence of a nonexempt
prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA)
which could reasonably be expected to result in liability to any Company.




          “Event of Default” shall have the meaning assigned to such term in Section 8.01.




          “Excess Amount” shall have the meaning assigned to such term in Section 2.10(h).




          “Excess Cash Flow” shall mean, for any Excess Cash Flow Period, Consolidated EBITDA for such
Excess Cash Flow Period, minus, without duplication:





     (a) Debt Service for such Excess Cash Flow Period;




     (b) any prepayments of Term Loans, and any prepayments of Revolving Loans to the extent
accompanied by corresponding permanent reductions in the Revolving Commitments, during such
Excess Cash Flow Period, in each case other than (i) any voluntary prepayments and (ii)
amounts already reflected in Debt Service; 




     (c) Capital Expenditures during such Excess Cash Flow Period (excluding Capital
Expenditures made in such Excess Cash Flow Period where a certificate in the form
contemplated by the following clause (d) was previously delivered) that are paid in cash;




     (d) Capital Expenditures that Borrower or any of its Subsidiaries shall, during such
Excess Cash Flow Period, become obligated to make but that are not made during such Excess
Cash Flow Period; provided that Borrower shall deliver a certificate to the Administrative
Agent not later than 90 days after the end of such Excess Cash Flow Period, signed by a
Responsible



-16-









 







Officer of Borrower and certifying that such Capital Expenditures will be made in the
following Excess Cash Flow Period;




     (e) the aggregate amount of expenditures made in cash during such period pursuant to
Sections 6.04(e) and (i) (other than investments made with Excluded
Issuances);




     (f) taxes of Borrower and its Subsidiaries that were paid in cash during such Excess
Cash Flow Period or will be paid within six months after the end of such Excess Cash Flow
Period and for which reserves have been established;




     (g) the absolute value of the difference, if negative, of the amount of Net Working
Capital at the end of the prior Excess Cash Flow Period (or the beginning of the Excess Cash
Flow Period in the case of the first Excess Cash Flow Period) over the amount of Net Working
Capital at the end of such Excess Cash Flow Period;




     (h) losses excluded from the calculation of Consolidated Net Income by operation of
clause (c) or (h) of the definition thereof that are paid in cash during such Excess Cash
Flow Period;




     (i) to the extent added to determine Consolidated EBITDA, all items that did not result
from a cash payment to Borrower or any of its Subsidiaries on a consolidated basis during
such Excess Cash Flow Period; and




     (j) the aggregate amount of Permitted Acquisitions (including, without limitation, the
netASPx Acquisition) made in cash during such period pursuant to Section 6.07(e);


provided that any amount deducted pursuant of any of the foregoing clauses that will be paid after
the close of such Excess Cash Flow Period shall not be deducted again in a subsequent Excess Cash
Flow Period; plus, without duplication:





     (i) the difference, if positive, of the amount of Net Working Capital at the end of the
prior Excess Cash Flow Period (or the beginning of the Excess Cash Flow Period in the case
of the first Excess Cash Flow Period) over the amount of Net Working Capital at the end of
such Excess Cash Flow Period;




     (ii) all proceeds received during such Excess Cash Flow Period of any Indebtedness to
the extent used to finance any Capital Expenditure or Permitted Acquisition (including,
without limitation, the netASPx Acquisition);




     (iii) to the extent any permitted Capital Expenditures referred to in clause
(d) above do not occur in the Excess Cash Flow Period specified in the certificate of
Borrower provided pursuant to clause (d) above, such amounts of Capital Expenditures
that were not so made in the Excess Cash Flow Period specified in such certificates;




     (iv) any return on investments received in cash (other than from a Subsidiary) during
such period, which investments were made pursuant to Section 6.04(e) or (i)
(other than investments made from Excluded Issuances);



-17-









 






     (v) income or gain excluded from the calculation of Consolidated Net Income by
operation of clause (c) or (h) of the definition thereof that is realized in cash during
such Excess Cash Flow Period (except to the extent such gain is subject to Section
2.10(c), (d), (e) or (f));




     (vi) if deducted in the computation of Consolidated EBITDA, interest income; and




     (vii) to the extent subtracted in determining Consolidated EBITDA, all items that did
not result from a cash payment by Borrower or any of its Subsidiaries on a consolidated
basis during such Excess Cash Flow Period.



          “Excess Cash Flow Period” shall mean (i) the period taken as one accounting period from August
1, 2007 and ending on July 31, 2008 and (ii) each fiscal year of Borrower thereafter.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          “Excluded Issuance” shall mean an issuance and sale of Qualified Capital Stock of Borrower, to
the extent such Qualified Capital Stock is used, or the Net Cash Proceeds thereof shall be, within
45 days of the consummation of such issuance and sale, used, without duplication, to finance
Capital Expenditures or one or more Permitted Acquisitions.




          “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, the Issuing
Bank or any other recipient of any payment to be made by or on account of any obligation of
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), franchise taxes imposed on it (in lieu of net income taxes) and branch profits taxes
imposed on it, by a jurisdiction (or any political subdivision thereof) as a result of the
recipient being organized or having its principal office or, in the case of any Lender, its
applicable lending office in such jurisdiction and (b) in the case of a Foreign Lender, any U.S.
federal withholding tax that (i) is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party hereto (or designates a new lending office), except (x) to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from Borrower with respect
to such withholding tax pursuant to Section 2.15(a) or (y) if such Foreign Lender is an
assignee pursuant to a request by Borrower under Section 2.16; provided that this subclause
(b)(i) shall not apply to any Tax imposed on a Lender in connection with an interest or
participation in any Loan or other obligation that such Lender was required to acquire pursuant to
Section 2.14(d), or (ii) is attributable to such Foreign Lender’s failure to
comply with Section 2.15(e).




          “Executive Order” shall have the meaning assigned to such term in Section 3.21.




          “Existing Lenders” shall have the meaning assigned to such term in the recitals hereto.




          “Existing Lien” shall have the meaning assigned to such term in Section 6.02(c).




          “Existing Revolving Loans” shall have the meaning assigned to such term in the recitals
hereto.




          “Existing Term Loan Lender” shall have the meaning given to such term in Section 2.01.




          “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System of the United




-18-









 







States arranged by federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for the day for such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing selected by it.




          “Fees” shall mean the Revolving Commitment Fee, the Administrative Agent Fee, the LC
Participation Fees and the Fronting Fees.




          “Final Maturity Date” shall mean the latest of the Revolving Maturity Date, the Term Loan
Maturity Date and any Incremental Term Loan Maturity Date applicable to existing Incremental Term
Loans, as of any date of determination.




          “Financial Officer” of any person shall mean the chief financial officer, principal accounting
officer, treasurer or controller of such person.




          “FIRREA” shall mean the Federal Institutions Reform, Recovery and Enforcement Act of 1989, as
amended.




          “Foreign Lender” shall mean any Lender that is not, for United States federal income tax
purposes, (i) an individual who is a citizen or resident of the United States, (ii) a corporation,
partnership or other entity treated as a corporation or partnership created or organized in or
under the laws of the United States, or any political subdivision thereof, (iii) an estate whose
income is subject to U.S. federal income taxation regardless of its source or (iv) a trust if a
court within the United States is able to exercise primary supervision over the administration of
such trust and one or more United States persons have the authority to control all substantial
decisions of such trust.




          “Foreign Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by any Company with respect to employees employed outside the United
States.




          “Foreign Subsidiary” shall mean a Subsidiary that is organized under the laws of a
jurisdiction other than the United States or any state thereof or the District of Columbia.




          “Fronting Fee” shall have the meaning assigned to such term in Section 2.05(c).




          “Fund” shall mean any person that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course of
its business.




          “GAAP” shall mean generally accepted accounting principles in the United States applied on a
consistent basis.




          “Governmental Authority” shall mean the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state, provincial or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).




          “Governmental Real Property Disclosure Requirements” shall mean any Requirement of Law of any
Governmental Authority requiring notification of the buyer, lessee, mortgagee, assignee or




-19-









 







other transferee of any Real Property, facility, establishment or business, or notification,
registration or filing to or with any Governmental Authority, in connection with the sale, lease,
mortgage, assignment or other transfer (including any transfer of control) of any Real Property,
facility, establishment or business, of the actual or threatened presence or Release in or into the
Environment, or the use, disposal or handling of Hazardous Material on, at, under or near the Real
Property, facility, establishment or business to be sold, leased, mortgaged, assigned or
transferred.




          “Guaranteed Obligations” shall have the meaning assigned to such term in Section 7.01.




          “Guarantees” shall mean the guarantees issued pursuant to Article VII by the
Subsidiary Guarantors.




          “Guarantors” shall mean the Subsidiary Guarantors.




          “Hazardous Materials” shall mean the following: hazardous substances; hazardous wastes;
polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs; asbestos or any
asbestos-containing materials in any form or condition; radon or any other radioactive materials
including any source, special nuclear or by-product material; petroleum, crude oil or any fraction
thereof; and any other pollutant or contaminant or chemicals, wastes, materials, compounds,
constituents or substances, subject to regulation or which can give rise to liability under any
Environmental Laws.




          “Hedging Agreement” shall mean any swap, cap, collar, forward purchase or similar agreements
or arrangements dealing with interest rates, currency exchange rates or commodity prices, either
generally or under specific contingencies.




          “Hedging Obligations” shall mean obligations under or with respect to Hedging Agreements.




          “Increase Joinder” shall have the meaning assigned to such term in Section 2.18(c).




          “Incremental Term Loan” shall have the meaning assigned to such term in Section
2.18(a).




          “Incremental Term Loan Commitment” shall have the meaning assigned to such term in Section
2.18(a).




          “Incremental Term Loan Maturity Date” shall have the meaning assigned to such term in
Section 2.18(a).




          “Indebtedness” of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money or advances; (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments; (c) all obligations of such person upon which interest
charges are customarily paid or accrued; (d) all obligations of such person under conditional sale
or other title retention agreements relating to property purchased by such person; (e) all
obligations of such person issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations (x) incurred in the ordinary course of
business on normal trade terms and not overdue by more than 120 days or (y) that are listed on
Schedule 1.01(c)); (f) all Indebtedness of others secured by any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have been assumed, but
limited to the fair market value of such property; (g) all Capital Lease Obligations,




-20-









 







Purchase Money Obligations and synthetic lease obligations of such person; (h) all
Hedging Obligations to the extent required to be reflected on a balance sheet of such person; (i)
all Attributable Indebtedness of such person; (j) all obligations of such person for the
reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’
acceptances and similar credit transactions; and (k) all Contingent Obligations of such person in
respect of Indebtedness or obligations of others of the kinds referred to in clauses (a) through
(j) above. The Indebtedness of any person shall include the Indebtedness of any other entity
(including any partnership in which such person is a general partner) to the extent such person is
liable therefor as a result of such person’s ownership interest in or other relationship with such
entity, except (other than in the case of general partner liability) to the extent that terms of
such Indebtedness expressly provide that such person is not liable therefor.




          “Indemnified Taxes” shall mean all Taxes other than Excluded Taxes.




          “Indemnitee” shall have the meaning assigned to such term in Section 10.03(b).




          “Information” shall have the meaning assigned to such term in Section 10.12.




          “Insurance Policies” shall mean the insurance policies and coverages required to be maintained
by each Loan Party which is an owner of Mortgaged Property with respect to the applicable Mortgaged
Property pursuant to Section 5.04 and all renewals and extensions thereof.




          “Insurance Requirements” shall mean, collectively, all provisions of the Insurance Policies,
all requirements of the issuer of any of the Insurance Policies and all orders, rules, regulations
and any other requirements of the National Board of Fire Underwriters (or any other body exercising
similar functions) binding upon each Loan Party which is an owner of Mortgaged Property and
applicable to the Mortgaged Property or any use or condition thereof.




          “Intellectual Property” shall have the meaning assigned to such term in Section
3.06(a).




          “Intercompany Note” shall mean the promissory note dated as of the Effective Date,
substantially in the form of Exhibit O.




          “Interest Election Request” shall mean a request by Borrower to convert or continue a
Revolving Borrowing or Term Borrowing in accordance with Section 2.08(b), substantially in
the form of Exhibit E (or, if delivered prior to the Effective Date, Exhibit E to the
Original Credit Agreement).




          “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the first Business Day of
August, November, February and May to occur during any period in which such Loan is outstanding,
(b) with respect to any LIBOR Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a LIBOR Loan with an Interest Period of more than
three months’ duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months’ duration after the first day of such Interest Period, (c) with respect
to any Revolving Loan, the Revolving Maturity Date or such earlier date on which the Revolving
Commitments are terminated, (d) with respect to any Term Loan or Incremental Term Loan, the Term
Loan Maturity Date or an Incremental Term Loan Maturity Date, as the case may be.




          “Interest Period” shall mean, with respect to any LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months (or nine or twelve months if agreed to by all affected
Lenders) thereafter, as Borrower may elect; provided that (a) if any Interest Period would end on a
day other than a




-21-









 







Business Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that
commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing.




          “Investments” shall have the meaning assigned to such term in Section 6.04.




          “Issuing Bank” shall mean, as the context may require, (a) Canadian Imperial Bank of Commerce,
acting through its New York agency, in its capacity as issuer of Letters of Credit issued by it;
(b) any other Lender that may become an Issuing Bank pursuant to Sections 2.17(j) and
(k) in its capacity as issuer of Letters of Credit issued by such Lender; or (c)
collectively, all of the foregoing.




          “Joinder Agreement” shall mean a joinder agreement substantially in the form of Exhibit
F (or, if delivered prior to the Effective Date, Exhibit F to the Original Credit Agreement) .




          “Landlord Access Agreement” shall mean a Landlord Access Agreement, substantially in the form
of Exhibit G (or, if delivered prior to the Effective Date, Exhibit G to the Original
Credit Agreement), or such other form as may reasonably be acceptable to the Administrative Agent.




          “LC Commitment” shall mean the commitment of the Issuing Bank to issue Letters of Credit
pursuant to Section 2.17. The amount of the LC Commitment shall initially be $2.5 million,
but in no event exceed the Revolving Commitment.




          “LC Disbursement” shall mean a payment or disbursement made by the Issuing Bank pursuant to a
drawing under a Letter of Credit.




          “LC Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate principal amount of all
Reimbursement Obligations outstanding at such time. The LC Exposure of any Revolving Lender at any
time shall mean its Pro Rata Percentage of the aggregate LC Exposure at such time.




          “LC Participation Fee” shall have the meaning assigned to such term in Section
2.05(c).




          “LC Request” shall mean a request by Borrower in accordance with the terms of Section
2.17(b) and substantially in the form of Exhibit H (or, if delivered prior to the
Effective Date, Exhibit H to the Original Credit Agreement), or such other form as shall be
approved by the Administrative Agent.




          “Leases” shall mean any and all leases, subleases, tenancies, options, concession agreements,
rental agreements, occupancy agreements, franchise agreements, access agreements and any other
agreements (including all amendments, extensions, replacements, renewals, modifications and/or
guarantees thereof), whether or not of record and whether now in existence or hereafter entered
into, affecting the use or occupancy of all or any portion of any Real Property.




          “Lender Addendum” shall mean (i) with respect to any Lender on the Original Closing Date, a
lender addendum in the form of Exhibit I to the Original Credit Agreement, executed and
delivered




-22-









 







by such Lender on the Original Closing Date as provided in Section 10.15 of the Original
Credit Agreement and (ii) with respect to any Lender of Additional Term Loans on the Effective
Date, a lender addendum in the form of Exhibit I, to be executed and delivered by such
Lender on the Effective Date as provided in Section 10.15.




          “Lenders” shall mean the financial institutions that have become a party hereto pursuant to a
Lender Addendum (including, without limitation, the Existing Lenders) and any financial institution
that has become a party hereto pursuant to an Assignment and Assumption, other than, in each case,
any such financial institution that has ceased to be a party hereto pursuant to an Assignment and
Assumption.




          “Letter of Credit” shall mean any (i) Standby Letter of Credit and (ii) Commercial Letter of
Credit, in each case, issued or to be issued by an Issuing Bank for the account of Borrower
pursuant to Section 2.17.




          “Letter of Credit Expiration Date” shall mean the date which is fifteen days prior to the
Revolving Maturity Date.




          “LIBOR Base Rate” shall mean with respect to each day during each Interest Period pertaining
to a LIBOR Loan, the rate per annum determined on the basis of the rate for deposits in Dollars for
a period equal to such Interest Period appearing on Reuters Screen LIBOR01 Page as of 11:00 A.M.,
London time, two (2) Business Days prior to the beginning of such Interest Period (as specified in
the applicable Borrowing Request); provided that in the event that such rate does not appear on
Reuters Screen LIBOR01 Page (or otherwise on such screen), the “LIBOR Base Rate” shall be
determined by reference to such other comparable publicly available service for displaying LIBOR
rates as may be selected by the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar deposits of comparable
amounts at or about 10:00 A.M., New York City time, as applicable, two (2) Business Days prior to
the beginning of such Interest Period in the London interbank market where its LIBOR and foreign
currency and exchange operations are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein.




          “LIBOR Borrowing” shall mean a Borrowing comprised of LIBOR Loans.




          “LIBOR Loan” shall mean any LIBOR Revolving Loan or LIBOR Term Loan.




          “LIBOR Rate” shall mean with respect to each day during each Interest Period pertaining to a
LIBOR Loan, a rate per annum determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):




LIBOR Base Rate



 





1.00 — LIBOR Reserve Requirements




          “LIBOR Reserve Requirements” shall mean for any day as applied to a LIBOR Loan, the aggregate
(without duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.




-23-









 








          “LIBOR Revolving Borrowing” shall mean a Borrowing comprised of LIBOR Revolving Loans.




          “LIBOR Revolving Loan” shall mean any Revolving Loan bearing interest at a rate determined by
reference to the LIBOR Rate in accordance with the provisions of Article II.




          “LIBOR Term Borrowing” shall mean a Borrowing comprised of LIBOR Term Loans.




          “LIBOR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference
to the LIBOR Rate in accordance with the provisions of Article II.




          “Lien” shall mean, with respect to any property, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, claim, charge, assignment, hypothecation, security interest or encumbrance of
any kind or any arrangement to provide priority or preference or any filing of any financing
statement under the UCC or any other similar notice of lien under any similar notice or recording
statute of any Governmental Authority, including any easement, right-of-way or other encumbrance on
title to Real Property, in each of the foregoing cases whether voluntary or imposed by law, and any
agreement to give any of the foregoing; (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating to such property;
and (c) in the case of securities, any purchase option, call or similar right of a third party with
respect to such securities.




          “Loan Documents” shall mean this Agreement (including (i) the Original Credit Agreement, as
amended and restated hereby, and (ii) to the extent relating to any action, event, representation,
warranty or covenant occurring, made or applying prior to the Effective Date, the Original Credit
Agreement prior to giving effect hereto), the Amendment Agreement, the Letters of Credit, the Notes
(if any), and the Security Documents.




          “Loan Parties” shall mean Borrower and the Subsidiary Guarantors.




          “Loans” shall mean, as the context may require, a Revolving Loan or a Term Loan (and shall
include any Loans contemplated by Section 2.18).




          “Margin Stock” shall have the meaning assigned to such term in Regulation U.




          “Material Adverse Effect” shall mean (a) a material adverse effect on the business, property,
results of operations, prospects or condition, financial or otherwise, or material agreements of
Borrower and its Subsidiaries, taken as a whole; (b) material impairment of the ability of the Loan
Parties to fully and timely perform any of their obligations under any Loan Document; (c) material
impairment of the material rights of or benefits or remedies available to the Lenders or the
Collateral Agent under any Loan Document; or (d) a material adverse effect on the Collateral or the
Liens on the Collateral in favor of the Collateral Agent (for its benefit and for the benefit of
the other Secured Parties) or the priority of such Liens.




          “Material Agreement” shall mean, collectively, (i) any contract or other arrangement to which
Borrower or any of its Subsidiaries is a party (other than the Credit Documents) for which breach,
non-performance, cancellation or failure to renew could reasonably be expected to have a Material
Adverse Effect and (ii) any agreement or instrument evidencing or governing Indebtedness or the
obligation to make payments in excess of $1,000,000.




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          “Maximum Rate” shall have the meaning assigned to such term in Section 10.14.




          “Merger Sub” shall mean NS Acquisition Corp., a Delaware corporation.




          “Mortgage” shall mean an agreement, including, but not limited to, a mortgage, deed of trust
or any other document, creating and evidencing a Lien on a Mortgaged Property, which shall be in a
form reasonably satisfactory to the Collateral Agent.




          “Mortgaged Property” shall mean each Real Property, if any, which shall be subject to a
Mortgage delivered after the Effective Date pursuant to Section 5.11(c).




          “Multiemployer Plan” shall mean a multiemployer plan within the meaning of Section 4001(a)(3)
or Section 3(37) of ERISA (a) to which any Company or any ERISA Affiliate is then making or
accruing an obligation to make contributions; (b) to which any Company or any ERISA Affiliate has
within the preceding five plan years made contributions; or (c) with respect to which any Company
could incur liability.




          “netASPx Acquisition” shall have the meaning assigned to such term in the recitals hereto.




          “netASPx Acquired Business” shall have the meaning assigned to such term in the recitals
hereto.




          “netASPx Acquisition Agreement” shall have the meaning assigned to such term in the recitals
hereto.




          “netASPx Acquisition Documents” shall mean the collective reference to the netASPx Acquisition
Agreement and the other documents listed on Schedule 3.22.




          “netASPx LLC” shall have the meaning assigned to such term in the recitals hereto.




          “netASPx Seller Convertible Preferred Stock” shall mean the Series A Convertible Preferred
Stock of Borrower issued to the stockholders of netASPx in connection with the netASPx Acquisition
having an initial liquidation preference not to exceed $25.0 million and containing such other
terms as may be satisfactory in form and substance to the Administrative Agent.




          “netASPx Transactions” shall mean the consummation of the netASPx Acquisition pursuant to the
netASPx Acquisition Documents and the borrowing of the Additional Term Loans to fund the netASPx
Acquisition.




          “Net Cash Proceeds” shall mean:





     (a) with respect to any Asset Sale (other than any issuance or sale of Equity
Interests), the cash proceeds received by Borrower or any of its Subsidiaries (including
cash proceeds subsequently received (as and when received by Borrower or any of its
Subsidiaries) in respect of non-cash consideration initially received) net of (i) selling
expenses (including reasonable brokers’ fees or commissions, legal, accounting and other
professional and transactional fees, transfer and similar taxes and Borrower’s good faith
estimate of income taxes paid or payable in connection with such sale); (ii) amounts
provided as a reserve, in accordance with GAAP, against (x) any liabilities under any
indemnification obligations associated with such Asset Sale or



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(y) any other liabilities retained by Borrower or any of its Subsidiaries associated
with the properties sold in such Asset Sale, including Taxes (provided that, to the extent
and at the time any such amounts are released from such reserve, such amounts shall
constitute Net Cash Proceeds); (iii) Borrower’s good faith estimate of payments required to
be made with respect to unassumed liabilities relating to the properties sold within 90 days
of such Asset Sale (provided that, to the extent such cash proceeds are not used to make
payments in respect of such unassumed liabilities within 90 days of such Asset Sale, such
cash proceeds shall constitute Net Cash Proceeds); and (iv) the principal amount, premium or
penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is
secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was
permitted to encumber such properties under the Loan Documents at the time of such sale) and
which is repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such properties);




     (b) with respect to any Debt Issuance, any Equity Issuance or any other issuance or
sale of Equity Interests by Borrower or any of its Subsidiaries, the cash proceeds thereof,
net of customary fees, commissions, costs and other expenses incurred in connection
therewith; and




     (c) with respect to any Casualty Event, the cash insurance proceeds, condemnation
awards and other compensation received in respect thereof, net of all reasonable Taxes,
costs and expenses incurred in connection with the collection of such proceeds, awards or
other compensation in respect of such Casualty Event.



          “Net Working Capital” shall mean, at any time, Consolidated Current Assets at such time minus
Consolidated Current Liabilities at such time.




          “Non-Guarantor Subsidiary” shall mean each Subsidiary that is not a Subsidiary Guarantor.




          “Notes” shall mean any notes evidencing the Term Loans or Revolving Loans issued pursuant to
this Agreement, if any, substantially in the form of Exhibit J-1 or J-2.




          “Obligations” shall mean (a) obligations of Borrower and the other Loan Parties from time to
time arising under or in respect of the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be made by Borrower and
the other Loan Parties under this Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of Reimbursement Obligations, interest thereon and obligations to
provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such proceeding), of
Borrower and the other Loan Parties under this Agreement and the other Loan Documents, and (b) the
due and punctual performance of all covenants, agreements, obligations and liabilities of Borrower
and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents.




          “OFAC” shall have the meaning assigned to such term in Section 3.21.




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          “Officers’ Certificate” shall mean a certificate executed by the chief executive officer or
the president and one of the Financial Officers of Borrower and (if applicable) a Responsible
Officer of the netASPx Acquired Business and the Specified Businesses, in each case, in his or her
official (and not individual) capacity.




          “Organizational Documents” shall mean, with respect to any person, (i) in the case of any
corporation, the certificate of incorporation and by-laws (or similar documents) of such person,
(ii) in the case of any limited liability company, the certificate of formation and operating
agreement (or similar documents) of such person, (iii) in the case of any limited partnership, the
certificate of formation and limited partnership agreement (or similar documents) of such person,
(iv) in the case of any general partnership, the partnership agreement (or similar document) of
such person and (v) in any other case, the functional equivalent of the foregoing.




          “Original Closing Date” shall mean June 8, 2007, the date of the initial extension of credit
under the Original Credit Agreement.




          “Original Credit Agreement” shall have the meaning assigned to such term in the recitals
hereto.




          “Original Loan Documents” shall mean the Original Credit Agreement, the Letters of Credit, the
Notes (if any) and the Original Security Documents.




          “Original Refinancing” shall mean the repayment in full and the termination of any commitment
to make extensions of credit under all of the outstanding indebtedness of Borrower or any of its
Subsidiaries listed on Schedule 1.01(a) to the Original Credit Agreement, on the Original
Closing Date.




          “Original Security Documents” shall mean the Security Documents delivered pursuant to the
Original Credit Agreement.




          “Original Term Loans” shall have the meaning assigned to such term in the recitals hereto.




          “Original Term Loan Commitment” shall mean, with respect to each Lender, the commitment, if
any, of such Lender to make a Term Loan under the Original Credit Agreement on the Original Closing
Date in the amount set forth on Schedule I to the Lender Addendum executed and delivered by such
Lender. The initial aggregate amount of the Lenders’ Original Term Loan Commitments was $90.0
million.




          “Original Transactions” shall mean, collectively, the transactions that occurred on or prior
to the Original Closing Date pursuant to the Original Transaction Documents, including (a) the
execution, delivery and performance of the Original Loan Documents and the initial borrowings
hereunder; (b) the Original Refinancing and (c) the payment of all fees and expenses paid or to be
paid on or prior to the Original Closing Date and owing in connection with the foregoing.




          “Original Transaction Documents” shall mean the Original Loan Documents.




          “Other Taxes” shall mean all present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies arising from any payment made hereunder or under any




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other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.




          “Participant” shall have the meaning assigned to such term in Section 10.04(d).




          “Participant Register” shall have the meaning assigned to such term in Section
10.04(d).




          “Patriot Act” shall have the meaning assigned to such term in Section 4.01(m).




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.




          “Perfection Certificate” shall mean a certificate in the form of Exhibit K-1 or any
other form approved by the Collateral Agent, as the same shall be supplemented from time to time by
a Perfection Certificate Supplement or otherwise.




          “Perfection Certificate Supplement” shall mean a certificate supplement in the form of
Exhibit K-2 or any other form approved by the Collateral Agent.




          “Permitted Acquisition” shall mean any transaction for the (a) acquisition of all or
substantially all of the property of any person, or of any business or division of any person; or
(b) acquisition (including by merger or consolidation) of the Equity Interests of any person that
becomes a Subsidiary after giving effect to such transaction; provided that each of the following
conditions shall be met:





     (i) no Default then exists or would result therefrom;




     (ii) after giving effect to such transaction on a Pro Forma Basis, (A) Borrower shall
be in compliance with all covenants set forth in Sections 6.10(a) and (b) as
of the most recent Test Period (assuming (x) for purposes of Section 6.10, that such
transaction, and all other Permitted Acquisitions consummated since the first day of the
relevant Test Period for each of the financial covenants set forth in Section 6.10
ending on or prior to the date of such transaction, had occurred on the first day of such
relevant Test Period and (y) if such transaction is to be consummated prior to the last day
of the first Test Period for which the covenants in Sections 6.10(a) and (b)
are required to be satisfied, the levels required for such first Test Period shall be deemed
to apply in determining compliance with such covenants for purposes of this clause (A)), and
(B) unless expressly approved by the Administrative Agent, the person or business to be
acquired shall have generated positive cash flow for the Test Period most recently ended
prior to the date of consummation of such acquisition;




     (iii) no Company shall, in connection with any such transaction, assume or remain
liable with respect to any Indebtedness or other liability (including any material tax or
ERISA liability) of the related seller or the business, person or properties acquired,
except (A) to the extent permitted under Section 6.01 and (B) obligations not
constituting Indebtedness incurred in the ordinary course of business and necessary or
desirable to the continued operation of the underlying properties, and any other such
liabilities or obligations not permitted to be assumed or otherwise supported by any Company
hereunder shall be paid in full or released as to the business, persons or properties being
so acquired on or before the consummation of such acquisition;



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     (iv) the person or business to be acquired shall be, or shall be engaged in, a business
of the type that Borrower and the Subsidiaries are permitted to be engaged in under
Section 6.15 and the property acquired in connection with any such transaction shall
be made subject to the Lien of the Security Documents and shall be free and clear of any
Liens, other than Permitted Collateral Liens;




     (v) the Board of Directors of the person to be acquired shall not have indicated
publicly its opposition to the consummation of such acquisition (which opposition has not
been publicly withdrawn);




     (vi) all transactions in connection therewith shall be consummated in accordance with
all applicable Requirements of Law;




     (vii) with respect to any transaction involving Acquisition Consideration of more than
$1.0 million, unless the Administrative Agent shall otherwise agree, Borrower shall have
provided the Administrative Agent and the Lenders with (A) historical financial statements
for the last three fiscal years (or, if less, the number of years since formation) of the
person or business to be acquired (audited if available without undue cost or delay) and
unaudited financial statements thereof for the most recent interim period which are
available, (B) reasonably detailed projections for the succeeding five years pertaining to
the person or business to be acquired and updated projections for Borrower after giving
effect to such transaction, (C) a reasonably detailed description of all material
information relating thereto and copies of all material documentation pertaining to such
transaction, and (D) all such other information and data relating to such transaction or the
person or business to be acquired as may be reasonably requested by the Administrative Agent
or the Required Lenders;




     (viii) at least 10 days prior to the proposed date of consummation of the transaction,
Borrower shall have delivered to the Agents and the Lenders an Officers’ Certificate
certifying that (A) such transaction complies with this definition (which shall have
attached thereto reasonably detailed backup data and calculations showing such compliance),
and (B) such transaction could not reasonably be expected to result in a Material Adverse
Effect; and




     (ix) the Acquisition Consideration (exclusive of any amounts financed by Excluded
Issuances or through the issuance of Qualified Equity Interests to one or more sellers in
such Permitted Acquisition) for such acquisition shall not exceed $45.0 million, and the
aggregate amount of the Acquisition Consideration (exclusive of any amounts financed by
Excluded Issuances or through the issuance of Qualified Equity Interests to one or more
sellers in such Permitted Acquisition) for all Permitted Acquisitions since the Original
Closing Date shall not exceed $90.0 million; provided that any Equity Interests constituting
all or a portion of such Acquisition Consideration shall not have a cash dividend
requirement on or prior to the Final Maturity Date.



          “Permitted Collateral Liens” shall mean (a) in the case of Collateral other than Mortgaged
Property, Permitted Liens and (b) in the case of Mortgaged Property, “Permitted Collateral Liens”
shall mean the Liens described in clauses (a), (b), (d), (e), (g) and (l) of Section 6.02;
provided, however, upon the date of delivery of each Mortgage under Section 5.11 or
5.12, Permitted Collateral Liens shall mean only those Liens identified as prior Liens
under the applicable Mortgage.




          “Permitted Liens” shall have the meaning assigned to such term in Section 6.02.





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          “Permitted Subordinated Indebtedness” shall mean Subordinated Indebtedness of the Borrower
that (i) shall not exceed the sum of (x) $75,000,000 in aggregate principal amount plus (y) all
capitalized or in-kind interest accrued thereon, (ii) does not have credit support from any person
that is not a Subsidiary Guarantor, (iii) requires no amortization payments and does not have a
scheduled maturity, in each case, prior the date that is 180 days following the Final Maturity
Date, (iv) has terms, including without limitation, subordination and related provisions,
satisfactory to the Administrative Agent and (v) is issued or incurred at a time when, after giving
effect to such issuance or incurrence on a Pro Forma Basis, the Borrower shall be in compliance
with all covenants set forth in Sections 6.10(a) and (b) as of the most recent Test
Period (assuming (x) for purposes of Section 6.10, that such transaction had occurred on
the first day of such relevant Test Period and (y) if such transaction is to be consummated prior
to the last day of the first Test Period for which the covenants in Sections 6.10(a) and
(b) are required to be satisfied, the levels required for such first Test Period shall be
deemed to apply in determining compliance with such covenants for purposes of this clause), in each
as evidenced by an Officers’ Certificate delivered to the Administrative Agent not less than ten
days (or such shorter period as shall be satisfactory to the Administrative Agent) prior to such
issuance or incurrence.




          “Permitted UK Datasite Buildout Indebtedness” shall have the meaning assigned to such term in
Section 6.01(e)(ii).




          “person” shall mean any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.




          “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA which is
maintained or contributed to by any Company or its ERISA Affiliate or with respect to which any
Company could incur liability (including under Section 4069 of ERISA).




          “Post-Increase Revolving Lenders” shall have the meaning assigned to such term in Section
2.18(d).




          “Pre-Increase Revolving Lenders” shall have the meaning assigned to such term in Section
2.18(d).




          “Preferred Stock” shall mean, with respect to any person, any and all preferred or preference
Equity Interests (however designated) of such person whether now outstanding or issued after the
Effective Date.




          “Pro Forma Basis” shall mean on a basis in accordance with GAAP and Regulation S-X and
otherwise reasonably satisfactory to the Administrative Agent.




          “Pro Rata Percentage” of any Revolving Lender at any time shall mean the percentage of the
total Revolving Commitments of all Revolving Lenders represented by such Lender’s Revolving
Commitment.




          “property” shall mean any right, title or interest in or to property or assets of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity
Interests or other ownership interests of any person and whether now in existence or owned or
hereafter entered into or acquired, including all Real Property.




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          “Purchase Money Obligation” shall mean, for any person, the obligations of such person in
respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing
all or any part of the purchase price of any property (including Equity Interests of any person) or
the cost of installation, construction or improvement of any property and any refinancing thereof;
provided, however, that (i) such Indebtedness is incurred within one year after such acquisition,
installation, construction or improvement of such property by such person and (ii) the amount of
such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction
or improvement, as the case may be.




          “Qualified Capital Stock” of any person shall mean any Equity Interests of such person that
are not Disqualified Capital Stock.




          “Real Property” shall mean, collectively, all right, title and interest (including any
leasehold, mineral or other estate) in and to any and all parcels of or interests in real property
owned, leased or operated by any person, whether by lease, license or other means, together with,
in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures and equipment, all general intangibles and contract rights and other property
and rights incidental to the ownership, lease or operation thereof.




          “Register” shall have the meaning assigned to such term in Section 10.04(c).




          “Regulation D” shall mean Regulation D of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.




          “Regulation S-X” shall mean Regulation S-X promulgated under the Securities Act.




          “Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.




          “Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.




          “Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.




          “Reimbursement Obligations” shall mean Borrower’s obligations under Section 2.17(e) to
reimburse LC Disbursements.




          “Related Parties” shall mean, with respect to any person, such person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such person and of such person’s
Affiliates.




          “Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating
or migrating of any Hazardous Material in, into, onto or through the Environment.




          “Required Additional Term Lenders” shall mean Lenders having more than 50% of all Additional
Term Loan Commitments.




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          “Required Class Lenders” shall mean (i) with respect to Term Loans, Lenders having more than
50% of all Term Loans outstanding, and (ii) with respect to Revolving Loans, Required Revolving
Lenders.




          “Required Lenders” shall mean Lenders having more than 50% of the sum of all Loans
outstanding, LC Exposure and unused Revolving and Term Loan Commitments.




          “Required Revolving Lenders” shall mean Lenders having more than 50% of all Revolving
Commitments or, after the Revolving Commitments have terminated, more than 50% of all Revolving
Exposure.




          “Requirements of Law” shall mean, collectively, any and all requirements of any Governmental
Authority including any and all laws, judgments, orders, decrees, ordinances, rules, regulations,
statutes or case law.




          “Response” shall mean (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(24),
and (b) all other actions required by any Governmental Authority or voluntarily undertaken to (i)
clean up, remove, treat, abate or in any other way address any Hazardous Material in the
environment; (ii) prevent the Release or threat of Release, or minimize the further Release, of any
Hazardous Material; or (iii) perform studies and investigations in connection with, or as a
precondition to, or to determine the necessity of the activities described in, clause (i) or (ii)
above.




          “Responsible Officer” of any person shall mean any executive officer or Financial Officer of
such person and any other officer or similar official thereof with responsibility for the
administration of the obligations of such person in respect of this Agreement.




          “Revolving Availability Period” shall mean the period from and including the Original Closing
Date to but excluding the earlier of (i) the Business Day preceding the Revolving Maturity Date and
(ii) the date of termination of the Revolving Commitments.




          “Revolving Borrowing” shall mean a Borrowing comprised of Revolving Loans.




          “Revolving Commitment” shall mean, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans hereunder up to the amount set forth on Schedule I to the
Lender Addendum executed and delivered by such Lender or by an Increase Joinder, or in the
Assignment and Assumption pursuant to which such Lender assumed its Revolving Commitment, as
applicable, as the same may be (a) reduced from time to time pursuant to Section 2.07 and
(b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The aggregate amount of the Lenders’ Revolving Commitments on the Effective
Date is $10.0 million.




          “Revolving Commitment Fee” shall have the meaning assigned to such term in Section
2.05(a).




          “Revolving Exposure” shall mean, with respect to any Lender at any time, the aggregate
principal amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate
amount at such time of such Lender’s LC Exposure.




          “Revolving Lender” shall mean a Lender with a Revolving Commitment.




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          “Revolving Loan” shall mean a Loan made by the Lenders to Borrower pursuant to Section
2.01(b). Each Revolving Loan shall either be an ABR Revolving Loan or a LIBOR Revolving Loan.




          “Revolving Maturity Date” shall mean June 8, 2012 or, if such date is not a Business Day, the
first Business Day thereafter.




          “Sale and Leaseback Transaction” has the meaning assigned to such term in Section
6.03.




          “Sarbanes-Oxley Act” shall mean the United States Sarbanes-Oxley Act of 2002, as amended, and
all rules and regulations promulgated thereunder.




          “Secured Obligations” shall mean (a) the Obligations, (b) the due and punctual payment and
performance of all obligations of Borrower and the other Loan Parties under each Hedging Agreement
entered into with any counterparty that is a Secured Party and (c) the due and punctual payment and
performance of all obligations of Borrower and the other Loan Parties (including overdrafts and
related liabilities) under each Treasury Services Agreement entered into with any counterparty that
is a Secured Party.




          “Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent,
each other Agent, the Lenders and each counterparty to a Hedging Agreement or Treasury Services
Agreement if at the date of entering into such Hedging Agreement or Treasury Services Agreement
such person was an Agent or a Lender or an Affiliate of an Agent or a Lender and such person
executes and delivers to the Administrative Agent a letter agreement in form and substance
acceptable to the Administrative Agent pursuant to which such person (i) appoints (or has
appointed) the Collateral Agent as its agent under the applicable Loan Documents and (ii) agrees
(or has agreed) to be bound by the provisions of Sections 10.03 and 10.09 as if it
were a Lender.




          “Securities Act” shall mean the Securities Act of 1933.




          “Securities Collateral” shall have the meaning assigned to such term in the Security
Agreement.




          “Security Agreement” shall mean a Security Agreement dated as of the Original Closing Date, a
conformed copy of which is attached hereto as Exhibit L among the Loan Parties and
Collateral Agent for the benefit of the Secured Parties.




          “Security Agreement Collateral” shall mean all property pledged or granted as collateral
pursuant to the Security Agreement (a) on the Original Closing Date or (b) thereafter pursuant to
Section 5.11.




          “Security Documents” shall mean the Security Agreement, the Mortgages and each other security
document or pledge agreement delivered in accordance with applicable local or foreign law to grant
a valid, perfected security interest in any property as collateral for the Secured Obligations, and
all UCC or other financing statements or instruments of perfection required by this Agreement, the
Security Agreement, any Mortgage or any other such security document or pledge agreement to be
filed with respect to the security interests in property and fixtures created pursuant to the
Security Agreement or any
Mortgage and any other document or instrument utilized to pledge or grant or purport to pledge
or grant a security interest or lien on any property as collateral for the Secured Obligations.




-33-









 








          “Sole Lead Arranger” shall have the meaning assigned to such term in the preamble hereto.




          “Specified Acquisitions” shall have the meaning assigned to such term in the recitals hereto.




          “Standby Letter of Credit” shall mean any standby letter of credit or similar instrument
issued for the purpose of supporting (a) workers’ compensation liabilities of Borrower or any of
its Subsidiaries, (b) the obligations of third-party insurers of Borrower or any of its
Subsidiaries arising by virtue of the laws of any jurisdiction requiring third-party insurers to
obtain such letters of credit, (c) performance, payment, deposit or surety obligations of Borrower
or any of its Subsidiaries if required by a Requirement of Law or in accordance with custom and
practice in the industry.




          “Subordinated Indebtedness” shall mean Indebtedness of Borrower or any Guarantor that is by
its terms subordinated in right of payment to the Obligations of Borrower and such Guarantor, as
applicable.




          “Subsidiary” shall mean, with respect to any person (the “parent”) at any date, (i) any person
the accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such
date, (ii) any other corporation, limited liability company, association or other business entity
of which securities or other ownership interests representing more than 50% of the voting power of
all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the
election of the Board of Directors thereof are, as of such date, owned, controlled or held by the
parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general
partner or the managing general partner of which is the parent and/or one or more subsidiaries of
the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries
of the parent and (iv) any other person that is otherwise Controlled by the parent and/or one or
more subsidiaries of the parent. Unless the context requires otherwise, “Subsidiary” refers to a
Subsidiary of Borrower.




          “Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(b), and each
other Subsidiary that is or becomes a party to this Agreement pursuant to Section 5.11.




          “Survey” shall mean a survey of any Mortgaged Property (and all improvements thereon) which is
(a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where
such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to
the date of delivery thereof unless there shall have occurred within six months prior to such date
of delivery any exterior construction on the site of such Mortgaged Property or any easement, right
of way or other interest in the Mortgaged Property has been granted or become effective through
operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be
depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after
the completion of such construction or if such construction shall not have been completed as of
such date of delivery, not earlier than 20 days prior to such date of delivery, or after the grant
or effectiveness of any such easement, right of way or other interest in the Mortgaged Property,
(iii) certified by the surveyor (in a manner reasonably acceptable to the Administrative Agent) to
the Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all
respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of such survey and (v)
sufficient for the Title Company to remove all standard survey exceptions from the title insurance
policy (or commitment)




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relating to such Mortgaged Property and issue endorsements required by such
title insurance policy or (b) otherwise acceptable to the Collateral Agent.




          “Syndication Agent” shall have the meaning assigned to such term in the preamble hereto.




          “Tax Return” shall mean all returns, statements, filings, attachments and other documents or
certifications required to be filed in respect of Taxes.




          “Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.




          “Term Borrowing” shall mean a Borrowing comprised of Term Loans.




          “Term Loan” shall mean collectively the Original Term Loans, the Additional Term Loans and any
Incremental Term Loans. Each Term Loan shall be either an ABR Term Loan or a LIBOR Term Loan.




          “Term Loan Lender” shall mean a Lender with an Additional Term Loan Commitment, or an
outstanding Term Loan.




          “Term Loan Maturity Date” shall mean June 8, 2013 or, if such date is not a Business Day, the
first Business Day thereafter.




          “Term Loan Repayment Date” shall have the meaning assigned to such term in Section
2.09.




          A “Test Period” in effect at any time shall mean the period of four consecutive fiscal
quarters of Borrower ended on or prior to such time (taken as one accounting period) in respect of
which financial statements for each quarter or fiscal year in such period have been or were
required to be delivered pursuant to Section 5.01(a) or (b) without giving effect
to any grace period applicable thereto (or, solely for purposes of determining pro forma compliance
with the covenants contained in Sections 6.8(a), (b), (c) and (d) pursuant to clause (ii) of the
definition of Permitted Acquisition, Section 2.18, prior to the date the first such
financial statements are required to be so delivered without giving effect to any grace period
applicable thereto, the most recent period of four fiscal quarters of the Acquired Business ended
on or prior to the Effective Date).




          “Title Company” shall mean any title insurance company as shall be retained by Borrower and
reasonably acceptable to the Administrative Agent.




          “Title Policy” shall mean, with respect to each Mortgage, a policy of title insurance (or
marked up title insurance commitment having the effect of a policy of title insurance) insuring the
Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures
described therein in the amount equal to not less than 115% of the fair market value of such
Mortgaged Property and fixtures, which policy (or such marked-up commitment) shall (A) be issued by
the Title Company, (B) to the extent necessary, include such reinsurance arrangements (with
provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral
Agent, (C) contain a “tie-in” or “cluster” endorsement, if
available under applicable law (i.e., policies which insure against losses regardless of
location or allocated value of the insured property up to a stated maximum coverage amount), (D)
have been supplemented by




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such endorsements (or where such endorsements are not available, opinions
of special counsel, architects or other professionals reasonably acceptable to the Collateral
Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters
relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business,
non-imputation, public road access, survey, variable rate, environmental lien, subdivision,
mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage
over covenants and restrictions), and (E) contain no exceptions to title other than exceptions
acceptable to the Collateral Agent.




          “Total Leverage Ratio” shall mean, at any date of determination, the ratio of (x) Consolidated
Indebtedness on such date less the outstanding principal amount of the AppliedTheory Notes on such
date to the extent the Company has placed cash in escrow on terms satisfactory to the
Administrative Agent for the sole purpose of satisfying the obligation under the AppliedTheory
Notes to (y) Consolidated EBITDA for the Test Period then most recently ended.




          “Transferred Guarantor” shall have the meaning assigned to such term in Section 7.09.




          “Treasury Services Agreement” shall mean any agreement relating to treasury, depositary and
cash management services or automated clearinghouse transfer of funds.




          “Type,” when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
LIBOR Rate or the Alternate Base Rate.




          “UCC” shall mean the Uniform Commercial Code as in effect from time to time (except as
otherwise specified) in any applicable state or jurisdiction.




          “United States” shall mean the United States of America.




          “Voting Stock” shall mean, with respect to any person, any class or classes of Equity
Interests pursuant to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of Directors of such person.




          “Wholly Owned Subsidiary” shall mean, as to any person, (a) any corporation 100% of whose
capital stock (other than directors’ qualifying shares) is at the time owned by such person and/or
one or more Wholly Owned Subsidiaries of such person and (b) any partnership, association, joint
venture, limited liability company or other entity in which such person and/or one or more Wholly
Owned Subsidiaries of such person have a 100% equity interest at such time.




          “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.




          SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “LIBOR Loan”) or
by Class and Type (e.g., a “LIBOR Revolving Loan”). Borrowings also may be classified and referred
to by Class (e.g., a “Revolving Borrow ing,” “Borrowing of Term Loans”) or by Type (e.g., a “LIBOR Borrowing”) or by Class and Type
(e.g., a “LIBOR Revolving Borrowing”).




          SECTION 1.03 Terms Generally. The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any




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pronoun shall include
the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” Unless the context
requires otherwise (a) any definition of or reference to any Loan Document, agreement, instrument
or other document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any person shall be construed to include such person’s successors and assigns, (c) the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or
regulation herein shall refer to such law or regulation as amended, modified or supplemented from
time to time, (f) the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights and (g) “on,” when used with respect to the Mortgaged
Property or any property adjacent to the Mortgaged Property, means “on, in, under, above or about.”




          SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all financial
statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as
in effect from time to time and all terms of an accounting or financial nature shall be construed
and interpreted in accordance with GAAP, as in effect on the Original Closing Date unless otherwise
agreed to by Borrower and the Required Lenders.




          SECTION 1.05 Resolution of Drafting Ambiguities. Each Loan Party acknowledges and agrees that it
was represented by counsel in connection with the execution and delivery of the Loan Documents to
which it is a party, that it and its counsel reviewed and participated in the preparation and
negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not be employed in the interpretation hereof or
thereof.




ARTICLE II




THE CREDITS




          SECTION 2.01 Commitments and Continuation of Original Term Loans. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly:





     (a) to make an Additional Term Loan to Borrower on the Effective Date in the principal
amount not to exceed its Additional Term Loan Commitment;




     (b) to make Revolving Loans to Borrower, at any time and from time to time on or after
the Effective Date until the earlier of the Revolving Maturity Date and the termination of
the Revolving Commitment of such Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in such Lender’s Revolving
Exposure exceeding such Lender’s Revolving Commitment; and



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     (c) that the Original Term Loans made by such Lender to Borrower on the Original
Closing Date, to the extent not repaid on or prior to the Effective Date, shall be continued
and deemed to be outstanding hereunder and governed by the terms hereof.



          Amounts paid or prepaid in respect of Term Loans may not be reborrowed. Within the limits set
forth in clause (b) above and subject to the terms, conditions and limitations set forth herein,
Borrower may borrow, pay or prepay and reborrow Revolving Loans.




          SECTION 2.02 Loans.




          (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders
ratably in accordance with their applicable Commitments; provided that the failure of any Lender to
make its Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it
being understood, however, that no Lender shall be responsible for the failure of any other Lender
to make any Loan required to be made by such other Lender). Except for Loans deemed made pursuant
to Section 2.17(e)(ii), (x) ABR Loans comprising any Borrowing shall be in an aggregate
principal amount that is (i) an integral multiple of $100,000 and not less than $250,000 or (ii)
equal to the remaining available balance of the applicable Commitments and (y) the LIBOR Loans
comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple
of $100,000 and not less than $500,000 or (ii) equal to the remaining available balance of the
applicable Commitments. 




          (b) Subject to Sections 2.11 and 2.12, each Borrowing shall be comprised
entirely of ABR Loans or LIBOR Loans as Borrower may request pursuant to Section 2.03.
Each Lender may at its option make any LIBOR Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time; provided that
Borrower shall not be entitled to request any Borrowing that, if made, would result in more than
five LIBOR Borrowings outstanding hereunder at any one time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they commence on the same date,
shall be considered separate Borrowings.




          (c) Except with respect to Loans deemed made pursuant to Section 2.17(e)(ii), each
Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds to such account in New York City as the Administrative
Agent may designate not later than 11:00 a.m., New York City time, and the Administrative Agent
shall promptly credit the amounts so received to an account as directed by Borrower in the
applicable Borrowing Request or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so received to the
respective Lenders.




          (d) Unless the Administrative Agent shall have received notice from a Lender prior to the date
(in the case of any LIBOR Borrowing), and at least 2 hours prior to the time (in the case of any
ABR Borrowing), of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent at the time of such Borrowing in
accordance with paragraph (c) above, and the Administrative Agent may, in reliance upon such
assumption, make available to Borrower on such date a corresponding amount. If the Administrative
Agent shall have so made funds available, then, to the extent that such Lender shall not have made
such portion available to the Administrative Agent, each of such Lender and Borrower severally
agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day




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from the date such amount is made available to Borrower until
the date such amount is repaid to the Administrative Agent at (i) in the case of Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation. If such
Lender shall repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement, and
Borrower’s obligation to repay the Administrative Agent such corresponding amount pursuant to this
Section 2.02(d) shall cease.




          (e) Notwithstanding any other provision of this Agreement, Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Maturity Date, Term Loan Maturity Date or Incremental
Term Loan Maturity Date, as applicable.




          SECTION 2.03 Borrowing Procedure. To request a Revolving Borrowing or Term Borrowing, Borrower
shall deliver, by hand delivery or telecopier, a duly completed and executed Borrowing Request to
the Administrative Agent (i) in the case of a LIBOR Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of the proposed
Borrowing. Each Borrowing Request shall be irrevocable and shall specify the following information
in compliance with Section 2.02:





     (a) whether the requested Borrowing is to be a Borrowing of Revolving Loans or
Additional Term Loans;




     (b) the aggregate amount of such Borrowing;




     (c) the date of such Borrowing, which shall be a Business Day;




     (d) whether such Borrowing is to be an ABR Borrowing or a LIBOR Borrowing;




     (e) in the case of a LIBOR Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest
Period”;




     (f) the location and number of Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.02(c); and




     (g) that the conditions set forth in Sections 4.02(b)-(d) have been satisfied
as of the date of the notice.



          If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period is specified with respect to any requested LIBOR
Borrowing, then Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.




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          SECTION 2.04 Evidence of Debt; Repayment of Loans.




          (a) Promise to Repay. Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Term Loan Lender, the principal amount of each Term
Loan of such Term Loan Lender as provided in Section 2.09 and (ii) to the Administrative
Agent for the account of each Revolving Lender, the then unpaid principal amount of each Revolving
Loan of such Revolving Lender on the Revolving Maturity Date.




          (b) Lender and Administrative Agent Records. Each Lender shall maintain in accordance
with its usual practice an account evidencing the Indebtedness of Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this Agreement. The
Administrative Agent shall maintain an account in which it will record (i) the amount of each Loan
made hereunder, the Type and Class thereof and the Interest Period applicable thereto; (ii) the
amount of any principal or interest due and payable or to become due and payable from Borrower to
each Lender hereunder; and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof. The entries made in the
account maintained pursuant to this paragraph shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided that the failure of any Lender or the
Administrative Agent to maintain such an account or any error therein shall not in any manner
affect the obligations of Borrower to repay the Loans in accordance with their terms.




          (c) Promissory Notes. Any Lender by written notice to Borrower (with a copy to the
Administrative Agent) may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) in the form of Exhibit J-1 or J-2, as the case may be.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).




          SECTION 2.05 Fees.




          (a) Commitment Fees. Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee (a “Revolving Commitment Fee”) equal to 0.50% per annum on
the average daily unused amount of the Revolving Commitment of such Lender during the period from
and including the Original Closing Date to but excluding the date on which such Revolving
Commitment terminates. Accrued Revolving Commitment Fees shall be payable in arrears (A) on the
first Business Day of August, November, February and May of each year, commencing on the first such date to
occur after the Original Closing Date, and (B) on the date on which such Revolving Commitment
terminates. All commitment fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
For purposes of computing Revolving Commitment Fees with respect to Revolving Commitments, a
Revolving Commitment of a Lender shall be deemed to be used (or to have been used) to the extent of
the outstanding Revolving Loans and LC Exposure of such Lender hereunder and/or under the Original
Credit Agreement, as applicable.




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          (b) Administrative Agent Fees. Borrower agrees to pay to the Administrative Agent,
for its own account, the administrative fees payable in the amounts and at the times separately
agreed upon between Borrower and the Administrative Agent (the “Administrative Agent Fees”).




          (c) LC and Fronting Fees. Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee (“LC Participation Fee”) with respect to
its participations in Letters of Credit, which shall accrue at a rate equal to the Applicable
Margin from time to time used to determine the interest rate on LIBOR Revolving Loans pursuant to
Section 2.06 on the average daily amount of such Lender’s LC Exposure (excluding any
portion thereof attributable to Reimbursement Obligations) during the period from and including the
Original Closing Date to but excluding the later of the date on which such Lender’s Revolving
Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to
the Issuing Bank a fronting fee (“Fronting Fee”), which shall accrue at the rate of 0.25% per annum
on the average daily amount of the LC Exposure (excluding any portion thereof attributable to
Reimbursement Obligations) during the period from and including the Original Closing Date to but
excluding the later of the date of termination of the Revolving Commitments and the date on which
there ceases to be any LC Exposure, as well as the Issuing Bank’s customary fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Accrued LC Participation Fees and Fronting Fees shall be payable in arrears (i) on the
first Business Day of August, November, February and May of each year, commencing on the first such
date to occur after the Original Closing Date, and (ii) on the date on which the Revolving
Commitments terminate. Any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable on demand. All LC Participation Fees and Fronting Fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).




          (d) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that
Borrower shall pay the Fronting Fees directly to the Issuing Bank. Once paid, none of the Fees
shall be refundable under any circumstances.




          SECTION 2.06 Interest on Loans.




          (a) ABR Loans. Subject to the provisions of Section 2.06(c), the Loans
comprising each ABR Borrowing, shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin in effect from time to time.




          (b) LIBOR Loans. Subject to the provisions of Section 2.06(c), the Loans
comprising each LIBOR Borrowing shall bear interest at a rate per annum equal to the LIBOR Rate for
the Interest Period in effect for such Borrowing plus the Applicable Margin in effect from time to
time.




          (c) Default Rate. Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall, to the extent permitted
by applicable law, bear interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of amounts constituting principal of or interest on any Loan, 2% plus the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
2.06 or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Revolving
Loans as provided in Section 2.06(a) (in either case, the “Default Rate”).




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          (d) Interest Payment Dates. Accrued interest on each Loan (including, for the
avoidance of doubt, interest accrued and unpaid under the Original Credit Agreement) shall be
payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to Section 2.06(c) shall be payable on demand, (ii) in the event of any repayment
or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan without a permanent
reduction in Revolving Commitments), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the event of any
conversion of any LIBOR Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.




          (e) Interest Calculation. All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
The applicable Alternate Base Rate or LIBOR Rate shall be determined by the Administrative Agent
in accordance with the provisions of this Agreement and such determination shall be conclusive
absent manifest error.




          SECTION 2.07 Termination and Reduction of Commitments.




          (a) Termination of Commitments. The Original Term Loan Commitments terminated when
the Original Term Loans were made on the Original Closing Date. The Additional Term Loan
Commitments shall automatically terminate at 5:00 p.m., New York City time, on the Effective Date.
The Revolving Commitments and the LC Commitment shall automatically terminate on the Revolving
Maturity Date. Notwithstanding the foregoing, all Additional Term Loan Commitments shall
automatically terminate at 5:00 p.m., New York City time, on September 12, 2007, if the Borrowings
in respect thereof shall not have occurred by such time.




          (b) Optional Terminations and Reductions. At its option, Borrower may at any time
terminate, or from time to time permanently reduce, the Commitments of any Class; provided that (i)
each reduction of the Commitments of any Class shall be in an amount that is an integral multiple
of $500,000 and not less than $1.0 million and (ii) the Revolving Commitments shall not be
terminated or reduced if, after giving effect to any concurrent prepayment of the Revolving Loans
in accordance with Section 2.10, the aggregate amount of Revolving Exposures would exceed
the aggregate amount of Revolving Commitments.




          (c) Borrower Notice. Borrower shall notify the Administrative Agent in writing of any
election to terminate or reduce the Commitments under Section 2.07(b) at least three
Business Days prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by
Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be revoked by Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition
is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.




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          SECTION 2.08 Interest Elections.




          (a) Generally. (i) Each Borrowing of Additional Term Loans shall initially be an ABR
Borrowing and (ii) unless otherwise specified by Borrower in accordance with the terms hereof, each
Borrowing of Original Term Loans shall, on the Effective Date, continue as a Borrowing with its
Type unchanged and, in the case of LIBOR Borrowings, with its Interest Period unchanged. Each
Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a LIBOR Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, Borrower may elect to convert any Borrowing to a different Type or
to continue such Borrowing and, in the case of a LIBOR Borrowing, may elect Interest Periods
therefor, all as provided in this Section. Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. Notwithstanding anything to the
contrary, Borrower shall not be entitled to request any conversion or continuation that, if made,
would result in more than five LIBOR Borrowings outstanding hereunder at any one time.




          (b) Interest Election Notice. To make an election pursuant to this Section, Borrower
shall deliver, by hand delivery or telecopier, a duly completed and executed Interest Election
Request to the Administrative Agent not later than the time that a Borrowing Request would be
required under Section 2.03 if Borrower were requesting a Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each Interest Election
Request shall be irrevocable. Each Interest Election Request shall specify the following
information in compliance with Section 2.02:





     (i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, or if outstanding
Borrowings are being combined, allocation to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a LIBOR Borrowing;
and




     (iv) if the resulting Borrowing is a LIBOR Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.



          If any such Interest Election Request requests a LIBOR Borrowing but does not specify an
Interest Period, then Borrower shall be deemed to have selected an Interest Period of one month’s
duration.




          Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.




          (c) Automatic Conversion to ABR Borrowing. If an Interest Election Request with
respect to a LIBOR Borrowing is not timely delivered prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such




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Borrowing shall be converted to an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing, the
Administrative Agent or the Required Lenders may require, by notice to Borrower, that (i) no
outstanding Borrowing may be converted to or continued as a LIBOR Borrowing and (ii) unless repaid,
each LIBOR Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.




          SECTION 2.09 Amortization of Term Borrowings. Borrower shall pay to the Administrative Agent, for
the account of the Lenders, on the dates set forth on Annex II, or if any such date is not
a Business Day, on the immediately preceding Business Day (each such date, a “Term Loan Repayment
Date”), a principal amount of the Term Loans equal to the amount set forth on Annex II for
such date (as adjusted from time to time pursuant to Section 2.10(h)), together in each
case with accrued and unpaid interest on the principal amount to be paid to but excluding the date
of such payment. To the extent not previously paid, all Term Loans shall be due and payable on the
Term Loan Maturity Date.




          SECTION 2.10 Optional and Mandatory Prepayments of Loans.




          (a) Optional Prepayments. Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section
2.10; provided that each partial prepayment shall be in an amount that is an integral multiple
of $500,000 and not less than $1.0 million or, if less, the outstanding principal amount of such
Borrowing.




          (b) Revolving Loan Prepayments.





     (i) In the event of the termination of all the Revolving Commitments, Borrower shall,
on the date of such termination, repay or prepay all its outstanding Revolving Borrowings
and replace all outstanding Letters of Credit or cash collateralize all outstanding Letters
of Credit in accordance with the procedures set forth in Section 2.17(i).




     (ii) In the event of any partial reduction of the Revolving Commitments, then (x) at or
prior to the effective date of such reduction, the Administrative Agent shall notify
Borrower and the Revolving Lenders of the sum of the Revolving Exposures after giving effect
thereto and (y) if the sum of the Revolving Exposures would exceed the aggregate amount of
Revolving Commitments after giving effect to such reduction, then Borrower shall, on the
date of such reduction, first, repay or prepay Revolving Borrowings and second, replace
outstanding Letters of Credit or cash collateralize outstanding Letters of Credit in accordance with the
procedures set forth in Section 2.17(i), in an aggregate amount sufficient to
eliminate such excess.




     (iii) In the event that the sum of all Lenders’ Revolving Exposures exceeds the
Revolving Commitments then in effect, Borrower shall, without notice or demand, immediately
first, repay or prepay Revolving Borrowings, and second, replace outstanding Letters of
Credit or cash collateralize outstanding Letters of Credit in accordance with the procedures
set forth in Section 2.17(i), in an aggregate amount sufficient to eliminate such
excess.




     (iv) In the event that the aggregate LC Exposure exceeds the LC Commitment then in
effect, Borrower shall, without notice or demand, immediately replace outstanding Letters of
Credit or cash collateralize outstanding Letters of Credit in accordance with the procedures
set forth in Section 2.17(i), in an aggregate amount sufficient to eliminate such
excess.



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          (c) 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:





     (i) 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 entire amount of such Net Cash Proceeds (and not only
the amount in excess of the maximum amounts set forth in this subclause) to prepay the Loans
unless the Borrower shall comply with clause (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;
and




     (ii) so long as no Default shall then exist or would arise therefrom, 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 fixed or capital assets
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, 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.



          (d) Debt Issuance. Not later than one Business Day following the receipt of any Net
Cash Proceeds of any Debt Issuance 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.




          (e) Equity Issuance. Not later than five Business Days following the receipt of any
Net Cash Proceeds of any Equity Issuance, Borrower shall make prepayments in accordance with
Sections 2.10(h) and (i) in an aggregate amount equal to 50% of such Net Cash
Proceeds; provided, however, that, if no Default or Event of Default shall have occurred and be
continuing, the foregoing shall not apply with respect to not more than $20,000,000 of such Net
Cash Proceeds received by the Borrower after the Effective Date to the extent Borrower shall notify
the Administrative Agent within such five Business Day period that it has elected to exempt such
Net Cash Proceeds from the prepayment provisions of this Section 2.10(e) and such proceeds
are applied in a manner not prohibited by this Agreement.




          (f) Casualty Events. Not later than five Business Days following the receipt of any
Net Cash Proceeds from a Casualty Event 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:




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     (i) so long as no Default shall then exist or arise therefrom, such proceeds shall not
be required to be so applied on such date to the extent that (A) in the event such Net Cash
Proceeds shall not exceed $1,000,000, Borrower shall have delivered an Officers’ Certificate
to the Administrative Agent on or prior to such date stating that such proceeds are expected
to be used, or (B) in the event that such Net Cash Proceeds exceed $1,000,000, the
Administrative Agent has elected by notice to Borrower on or prior to such date to require
such proceeds to be used, in each case, to repair, replace or restore any property in
respect of which such Net Cash Proceeds were paid or to reinvest in other fixed or capital
assets or to be contractually committed to be so reinvested, no later than 12 months
following the date of receipt of such proceeds; provided that if the property subject to
such Casualty Event constituted Collateral under the Security Documents, 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; and




     (ii) if any portion of such Net Cash Proceeds shall not be so applied within such
12-month period or, if ending later, 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(f).



          (g) Excess Cash Flow. No later than five Business Days after the date on which the
financial statements with respect to such fiscal year in which such Excess Cash Flow Period occurs
are or are required to be delivered pursuant to Section 5.01(a), Borrower shall make
prepayments in accordance with Sections 2.10(h) and (i) in an aggregate amount
equal to 50% of Excess Cash Flow for the Excess Cash Flow Period then ended.




          (h) Application of Prepayments. Prior to any optional or mandatory prepayment
hereunder, Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such
selection in the notice of such prepayment pursuant to Section 2.10(i), subject to the
provisions of this Section 2.10(h). Any prepayments pursuant to Section 2.10(c),
(d), (e), (f) or (g) shall be applied first to the Term Loans to
reduce scheduled prepayments required under Section 2.09, first, in direct order to such
scheduled prepayments due on the next four Term Loan Repayment Dates occurring following such
prepayment and, second, on a pro rata basis among the prepayments remaining to be made on each
other Term Loan Repayment Date. After application of mandatory prepayments of Term Loans described
above in this Section 2.10(h) and to the extent there are mandatory prepayment amounts
remaining after such application, the Revolving Commitments shall be permanently reduced ratably
among the Revolving Lenders in accordance with their applicable Revolving Commitments in an
aggregate amount equal to such excess, and Borrower shall comply with Section 2.10(b).




          Amounts to be applied pursuant to this Section 2.10 to the prepayment of Term Loans
and Revolving Loans shall be applied, as applicable, first to reduce outstanding ABR Term Loans and
ABR Revolving Loans, respectively. Any amounts remaining after each such application shall be
applied to prepay LIBOR Term Loans or LIBOR Revolving Loans, as applicable. Notwithstanding the
foregoing, if the amount of any prepayment of Loans required under this Section 2.10 shall
be in excess of the amount of the ABR Loans at the time outstanding (an “Excess Amount”), only the
portion of the amount of such prepayment as is equal to the amount of such outstanding ABR Loans
shall be immediately prepaid and, at the election of Borrower, the Excess Amount shall be either
(A) deposited in an escrow account on terms satisfactory to the Collateral Agent and applied to the
prepayment of LIBOR Loans on the




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last day of the then next-expiring Interest Period for LIBOR
Loans; provided that (i) interest in respect of such Excess Amount shall continue to accrue thereon
at the rate provided hereunder for the Loans which such Excess Amount is intended to repay until
such Excess Amount shall have been used in full to repay such Loans and (ii) at any time while a
Default has occurred and is continuing, the Administrative Agent may, and upon written direction
from the Required Lenders shall, apply any or all proceeds then on deposit to the payment of such
Loans in an amount equal to such Excess Amount or (B) prepaid immediately, together with any
amounts owing to the Lenders under Section 2.13.




          (i) Notice of Prepayment. Borrower shall notify the Administrative Agent by written
notice of any prepayment hereunder (i) in the case of prepayment of a LIBOR Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of prepayment and (ii) in
the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of prepayment. Each such notice shall be irrevocable; provided that,
if a notice of prepayment is given in connection with a conditional notice of termination of the
Commitments as contemplated by Section 2.07, then such notice of prepayment may be revoked
if such termination is revoked in accordance with Section 2.07. Each such notice shall
specify the prepayment date, the principal amount of each Borrowing or portion thereof to be
prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount
of such prepayment. Promptly following receipt of any such notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in
an amount that would be permitted in the case of a Credit Extension of the same Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing and otherwise in accordance with this Section 2.10. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.06.




          SECTION 2.11 Alternate Rate of Interest. If prior to the commencement of any Interest Period for a
LIBOR Borrowing:





     (a) the Administrative Agent determines (which determination shall be final and
conclusive absent manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for such Interest Period; or




     (b) the Administrative Agent is advised in writing by the Required Lenders that the
LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for such Interest
Period;


then the Administrative Agent shall give written notice thereof to Borrower and the Lenders as
promptly as practicable thereafter and, until the Administrative Agent notifies Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing
as, a LIBOR Borrowing shall be ineffective and (ii) if any Borrowing Request requests a LIBOR
Borrowing, such Borrowing shall be made as an ABR Borrowing.




          SECTION 2.12 Yield Protection.




          (a) Increased Costs Generally. If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account



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of, or credit extended or participated in, by any Lender (except any reserve requirement
reflected in the LIBOR Rate) or the Issuing Bank;




     (ii) subject any Lender or the Issuing Bank to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender or the
Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 2.15 and the imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender or the Issuing Bank); or




     (iii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender or
any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan), or to increase
the cost to such Lender, the Issuing Bank or such Lender’s or the Issuing Bank’s holding company,
if any, of participating in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest
or any other amount), then, upon request of such Lender or the Issuing Bank, Borrower will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred
or reduction suffered.




          (b) Capital Requirements. If any Lender or the Issuing Bank determines (in good
faith, but in its sole absolute discretion) that any Change in Law affecting such Lender or the
Issuing Bank or any lending office of such Lender or such Lender’s or the Issuing Bank’s holding
company, if any, regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the
Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit
issued by the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such
Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such
Lender’s or the Issuing Bank’s holding company with respect to capital adequacy), then from time to
time Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the
Issuing Bank’s holding company for any such reduction suffered.




          (c) Certificates for Reimbursement. A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of this Section
2.12 and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay
such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.




          (d) Delay in Requests. Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such
Lender’s or the Issuing Bank’s right to demand such compensation; provided that Borrower shall not
be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased
costs incurred or




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reductions suffered more than nine months prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof) .




          SECTION 2.13 Breakage Payments. In the event of (a) the payment or prepayment, whether optional or
mandatory, of any principal of any LIBOR Loan earlier than the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR
Loan earlier than the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto or (d) the assignment of any LIBOR Loan earlier than the last day
of the Interest Period applicable thereto as a result of a request by Borrower pursuant to
Section 2.16(b), then, in any such event, Borrower shall compensate each Lender for the
loss (other than lost profit or spread), cost and expense attributable to such event. In the case
of a LIBOR Loan, such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the LIBOR Rate that
would have been applicable to such Loan, for the period from the date of such event to the last day
of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits
of a comparable amount and period from other banks in the LIBOR market. A certificate of any
Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to
receive pursuant to this Section 2.13 shall be delivered to Borrower (with a copy to the
Administrative Agent) and shall be conclusive and binding absent manifest error. Borrower shall
pay such Lender the amount shown as due on any such certificate within 5 days after receipt
thereof.




          SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.




          (a) Payments Generally. Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees or Reimbursement
Obligations, or of amounts payable under Section 2.12, 2.13, 2.15 or
10.03, or otherwise) on or before the time expressly required hereunder or under such other
Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New
York City time), on the date when due, in immediately available funds, without setoff, deduction or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 300 Madison Avenue, New York, New York 10017, except payments to be made
directly to the Issuing Bank as expressly provided herein and except that payments pursuant to
Sections 2.12, 2.13, 2.15 and 10.03 shall be made directly to the
persons entitled thereto and payments pursuant to other Loan Documents shall be made to the persons
specified therein. The Administrative Agent shall distribute any such payments received by it for
the account of any other person to the appropriate recipient promptly following receipt thereof.
If any payment under any Loan Document shall be due on a day that is not a Business Day, unless
specified otherwise, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be payable for the period
of such extension. All payments under each Loan Document shall be made in dollars, except as
expressly specified otherwise.




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          (b) Pro Rata Treatment.





     (i) Each payment by Borrower of interest in respect of the Loans shall be applied to
the amounts of such obligations owing to the Lenders pro rata according to the respective
amounts then due and owing to the Lenders.




     (ii) Each payment on account of principal of the Term Loans shall be allocated among
the Term Loan Lenders pro rata based on the principal amount of the Term Loans held by the
Term Loan Lenders. Each payment by Borrower on account of principal of the Revolving
Borrowings shall be made pro rata according to the respective outstanding principal amounts
of the Revolving Loans then held by the Revolving Lenders.



          (c) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, Reimbursement
Obligations, interest and fees then due hereunder, such funds shall be applied (i) first, toward
payment of interest and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward
payment of principal and Reimbursement Obligations then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and Reimbursement Obligations then due
to such parties; provided, that the Administrative Agent may, subject to any applicable federal,
state or foreign bankruptcy, insolvency, receivership or similar orders, distribute any adequate
protection payments it receives on behalf of the Lenders to the Lenders in its sole discretion
(i.e., whether to pay the earliest accrued interest, all accrued interest on a pro rata
basis or otherwise).




          (d) Sharing of Set-Off. If any Lender (and/or the Issuing Bank, which shall be deemed
a “Lender” for purposes of this Section 2.14(d)) shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its
Loans or other Obligations resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of its Loans and accrued interest thereon or other Obligations greater than its
pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall
(a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans and such other obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:





     (i) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and




     (ii) the provisions of this paragraph shall not be construed to apply to (x) any
payment made by Borrower pursuant to and in accordance with the express terms of this
Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC Disbursements to any
assignee or participant, other than to Borrower or any Subsidiary thereof (as to which the
provisions of this paragraph shall apply).


Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under
applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation




-50-









 




as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation. If under applicable bankruptcy, insolvency or any similar law any
Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this
Section 2.14(d) applies, such Secured Party shall to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights to which the Secured
Party is entitled under this Section 2.14(d) to share in the benefits of the recovery of
such secured claim.




          (e) Borrower Default. Unless the Administrative Agent shall have received notice from
Borrower prior to the date on which any payment is due to the Administrative Agent for the account
of the Lenders or the Issuing Bank hereunder that Borrower will not make such payment, the
Administrative Agent may assume that Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing
Bank with interest thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.




          (f) Lender Default. If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.02(c), 2.14(e), 2.17(d), 2.17(e) or
10.03(c), then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for
the account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.




          SECTION 2.15 Taxes.




          (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required by applicable Requirements of Law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or Issuing Bank, as
the case may be, receives an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance with applicable
Requirements of Law.




          (b) Payment of Other Taxes by Borrower. Without limiting the provisions of paragraph
(a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable Requirements of Law.




          (c) Indemnification by Borrower. Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the Administrative Agent, such
Lender or the Issuing Bank, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of




-51-









 




such payment or liability delivered to Borrower by a Lender or the
Issuing Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.




          (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.




          (e) Status of Lenders. Any Foreign Lender shall, to the extent it may lawfully do so,
deliver to Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of Borrower or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:





     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States of America is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate, in substantially the
form of Exhibit P, or any other form approved by the Administrative Agent, to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of
the Code, (B) a “10 percent shareholder” of Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or




     (iv) any other form prescribed by applicable Requirements of Law as a basis for
claiming exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by applicable
Requirements of Law to permit Borrower to determine the withholding or deduction required to
be made.



          (f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or the
Issuing Bank determines, in its sole discretion, that it has received a refund of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which
Borrower has paid additional amounts pursuant to this Section, it shall pay to Borrower an amount
equal to such refund (but only to the extent of indemnity payments made, or additional amounts
paid, by Borrower under this Section with respect to the Indemnified Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or
the Issuing Bank, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that Borrower, upon the
request of the Administrative Agent, such Lender or the Issuing Bank, agrees to repay the amount
paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the Issuing Bank in the event
the Administrative Agent, such Lender or the Issuing Bank is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the Administrative Agent,
any Lender or the Issuing Bank to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to Borrower or any other person. Notwithstanding anything
to the




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contrary, in no event will any Lender be required to pay any amount to Borrower the payment
of which would place such Lender in a less favorable net after-tax position than such Lender would
have been in if the additional amounts giving rise to such refund of any Indemnified Taxes or Other
Taxes had never been paid.




          SECTION 2.16 Mitigation Obligations; Replacement of Lenders.




          (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.12, or requires Borrower to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for funding or booking
its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment. A certificate setting forth such costs and expenses submitted by such Lender to
Borrower shall be conclusive absent manifest error.




          (b) Replacement of Lenders. If any Lender requests compensation under Section
2.12, or if Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, or if any Lender
defaults in its obligation to fund Loans hereunder, or if Borrower exercises its replacement rights
under Section 10.02(d), then Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents required
by, Section 10.04), all of its interests, rights and obligations under this Agreement and
the other Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that:





     (i) Borrower shall have paid to the Administrative Agent the processing and recordation
fee specified in Section 10.04(b);




     (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 2.13), from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or Borrower (in the case
of all other amounts;




     (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.12 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments thereafter; and




     (iv) such assignment does not conflict with applicable Requirements of Law.


A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require
such assignment and delegation cease to apply.




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          SECTION 2.17 Letters of Credit




          (a) General. Subject to the terms and conditions set forth herein, Borrower may
request the Issuing Bank, and the Issuing Bank agrees, to issue Letters of Credit for its own
account or the account of a Subsidiary in a form reasonably acceptable to the Administrative Agent
and the Issuing Bank, at any time and from time to time during the Revolving Availability Period
(provided that Borrower shall be a co-applicant, and be jointly and severally liable, with respect
to each Letter of Credit issued for the account of a Subsidiary). The Issuing Bank shall have no
obligation to issue, and Borrower shall not request the issuance of, any Letter of Credit at any
time if after giving effect to such issuance, the LC Exposure would exceed the LC Commitment or the
total Revolving Exposure would exceed the total Revolving Commitments. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by Borrower to, or entered
into by Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions
of this Agreement shall control.




          (b) Request for Issuance, Amendment, Renewal, Extension; Certain Conditions and
Notices. To request the issuance of a Letter of Credit or the amendment, renewal or extension
of an outstanding Letter of Credit, Borrower shall deliver, by hand or telecopier (or transmit by
electronic communication, if arrangements for doing so have been approved by the Issuing Bank), an
LC Request to the Issuing Bank and the Administrative Agent not later than 11:00 a.m. on the fifth
Business Day preceding the requested date of issuance, amendment, renewal or extension (or such later date and time
as is acceptable to the Issuing Bank).




          A request for an initial issuance of a Letter of Credit shall specify in form and detail
satisfactory to the Issuing Bank:





     (i) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day);




     (ii) the amount thereof;




     (iii) the expiry date thereof (which shall not be later than the close of business on
the Letter of Credit Expiration Date);




     (iv) the name and address of the beneficiary thereof;




     (v) whether the Letter of Credit is to be issued for its own account or for the account
of one of its Subsidiaries (provided that Borrower shall be a co-applicant, and therefore
jointly and severally liable, with respect to each Letter of Credit issued for the account
of a Subsidiary);




     (vi) the documents to be presented by such beneficiary in connection with any drawing
thereunder;




     (vii) the full text of any certificate to be presented by such beneficiary in
connection with any drawing thereunder; and




     (viii) such other matters as the Issuing Bank may require.



          A request for an amendment, renewal or extension of any outstanding Letter of Credit shall
specify in form and detail satisfactory to the Issuing Bank:




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     (i) the Letter of Credit to be amended, renewed or extended;




     (ii) the proposed date of amendment, renewal or extension thereof (which shall be a
Business Day);




     (iii) the nature of the proposed amendment, renewal or extension; and




     (iv) such other matters as the Issuing Bank may require.


If requested by the Issuing Bank, Borrower also shall submit a letter of credit application on the
Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and, upon issuance, amendment,
renewal or extension of each Letter of Credit, Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension, (i) the LC Exposure
shall not exceed the LC Commitment, (ii) the total Revolving Exposures shall not exceed the total
Revolving Commitments and (iii) the conditions set forth in Article IV in respect of such
issuance, amendment, renewal or extension shall have been satisfied. Unless the Issuing Bank shall
agree otherwise, no Letter of Credit shall be in an initial amount less than $5,000, in the case of
a Commercial Letter of Credit, or $100,000, in the case of a Standby Letter of Credit.




          Upon the issuance of any Letter of Credit or amendment, renewal, extension or modification to
a Letter of Credit, the Issuing Bank shall promptly notify the Administrative Agent, who shall
promptly notify each Revolving Lender, thereof, which notice shall be accompanied by a copy of such
Letter of Credit or amendment, renewal, extension or modification to a Letter of Credit and the
amount of such Lender’s respective participation in such Letter of Credit pursuant to Section
2.17(d). On the first Business Day of each calendar month, the Issuing Bank shall provide to
the Administrative Agent a report listing all outstanding Letters of Credit and the amounts and
beneficiaries thereof and the Administrative Agent shall promptly provide such report to each
Revolving Lender.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) in the case of a Standby Letter of Credit, (x) the date which is one
year after the date of the issuance of such Standby Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and (y) the Letter of
Credit Expiration Date and (ii) in the case of a Commercial Letter of Credit, (x) the date that is
180 days after the date of issuance of such Commercial Letter of Credit (or, in the case of any
renewal or extension thereof, 180 days after such renewal or extension) and (y) the Letter of
Credit Expiration Date.




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby irrevocably grants to each Revolving Lender,
and each Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of
Credit equal to such Revolving Lender’s Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, such Revolving Lender’s Pro Rata Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by Borrower on the date due as provided in
Section 2.17(e), or of any reimbursement payment required to be refunded to Borrower for
any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any




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amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, or expiration, termination or cash collateralization
of any Letter of Credit and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.




          (e) Reimbursement.





     (i) If the Issuing Bank shall make any LC Disbursement in respect of a Letter of
Credit, Borrower shall reimburse such LC Disbursement by paying to the Issuing Bank an
amount equal to such LC Disbursement not later than 2:00 p.m., New York City time, on the
date that such LC Disbursement is made if Borrower shall have received notice of such LC
Disbursement prior to 11:00 a.m., New York City time, on such date, or, if such notice has
not been received by Borrower prior to such time on such date, then not later than 2:00
p.m., New York City time, on the Business Day immediately following the day that Borrower
receives such notice; provided that Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 that such payment be financed
with ABR Revolving Loans in an equivalent amount and, to the extent so financed, Borrower’s
obligation to make such payment shall be discharged and replaced by the resulting ABR
Revolving Loans.




     (ii) If Borrower fails to make such payment when due, the Issuing Bank shall notify the
Administrative Agent and the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from Borrower in respect thereof and such
Revolving Lender’s Pro Rata Percentage thereof. Each Revolving Lender shall pay by wire
transfer of immediately available funds to the Administrative Agent not later than 2:00
p.m., New York City time, on such date (or, if such Revolving Lender shall have received
such notice later than 12:00 noon, New York City time, on any day, not later than 11:00
a.m., New York City time, on the immediately following Business Day), an amount equal to
such Revolving Lender’s Pro Rata Percentage of the unreimbursed LC Disbursement in the same
manner as provided in Section 2.02(c) with respect to Revolving Loans made by such
Revolving Lender, and the Administrative Agent will promptly pay to the Issuing Bank the
amounts so received by it from the Revolving Lenders. The Administrative Agent will
promptly pay to the Issuing Bank any amounts received by it from Borrower pursuant to the
above paragraph prior to the time that any Revolving Lender makes any payment pursuant to
the preceding sentence and any such amounts received by the Administrative Agent from
Borrower thereafter will be promptly remitted by the Administrative Agent to the Revolving
Lenders that shall have made such payments and to the Issuing Bank, as appropriate.




     (iii) If any Revolving Lender shall not have made its Pro Rata Percentage of such LC
Disbursement available to the Administrative Agent as provided above, each of such Revolving
Lender and Borrower severally agrees to pay interest on such amount, for each day from and
including the date such amount is required to be paid in accordance with the foregoing to
but excluding the date such amount is paid, to the Administrative Agent for the account of
the Issuing Bank at (i) in the case of Borrower, the rate per annum set forth in Section
2.17(h) and (ii) in the case of such Lender, at a rate determined by the Administrative
Agent in accordance with banking industry rules or practices on interbank compensation.



          (f) Obligations Absolute. The Reimbursement Obligation of Borrower as provided in
Section 2.17(e) shall be absolute, unconditional and irrevocable, and shall be paid and
performed strictly in accordance with the terms of this Agreement under any and all circumstances
whatsoever and




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irrespective of (i) any lack of validity or enforceability of any Letter of Credit
or this Agreement, or any term or provision therein; (ii) any draft or other document presented
under a Letter of Credit being proved to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect; (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that fails
to comply with the terms of such Letter of Credit; (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the provisions of this
Section 2.17, constitute a legal or equitable discharge of, or provide a right of setoff
against, the obligations of Borrower hereunder; (v) the fact that a Default shall have occurred and
be continuing; or (vi) any material adverse change in the business, property, results of
operations, prospects or condition, financial or otherwise, of Borrower and its Subsidiaries. None
of the Agents, the Lenders, the Issuing Bank or any of their Affiliates shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by Borrower to the extent permitted by applicable
Requirements of Law) suffered by Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.




          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly give written notice to the Administrative Agent and
Borrower of such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not
relieve Borrower of its Reimbursement Obligation to the Issuing Bank and the Revolving Lenders with
respect to any such LC Disbursement (other than with respect to the timing of such Reimbursement
Obligation set forth in Section 2.17(e)).




          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest payable on demand, for each day from and
including the date such LC Disbursement is made to but excluding the date that Borrower reimburses
such LC Disbursement, at the rate per annum determined pursuant to Section 2.06(c).
Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except
that interest accrued on and after the date of payment by any Revolving Lender pursuant to
Section 2.17(e) to reimburse the Issuing Bank shall be for the account of such Lender to
the extent of such payment.




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          (i) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, Borrower shall deposit on terms and in accounts satisfactory to the
Collateral Agent, in the name of the Collateral Agent and for the benefit of the Revolving Lenders,
an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to Borrower described
in Section 8.01(g) or (h). Funds so deposited shall be applied by the Collateral
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of outstanding Reimbursement
Obligations or, if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be
applied to satisfy other Obligations of Borrower under this Agreement. If Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount plus any accrued interest or realized profits with respect to such amounts (to
the extent not applied as aforesaid) shall be returned to Borrower within three Business Days after
all Events of Default have been cured or waived.




          (j) Additional Issuing Banks. Borrower may, at any time and from time to time,
designate one or more additional Revolving Lenders to act as an issuing bank under the terms of
this Agreement, with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld), the Issuing Bank and such Revolving Lender(s). Any Lender designated as an
issuing bank pursuant to this paragraph (j) shall be deemed (in addition to being a Revolving
Lender) to be the Issuing Bank with respect to Letters of Credit issued or to be issued by such
Revolving Lender, and all references herein and in the other Loan Documents to the term “Issuing
Bank” shall, with respect to such Letters of Credit, be deemed to refer to such Revolving Lender in
its capacity as Issuing Bank, as the context shall require.




          (k) Resignation or Removal of the Issuing Bank. The Issuing Bank may resign as
Issuing Bank hereunder at any time upon at least 30 days’ prior notice to the Lenders, the
Administrative Agent and Borrower. The Issuing Bank may be replaced at any time by written
agreement among Borrower, each Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank or
any such additional Issuing Bank. At the time any such resignation or replacement shall become
effective, Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.05(c). From and after the effective date of any such resignation or
replacement or addition, as applicable, (i) the successor or additional Issuing Bank shall have all
the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued by it thereafter and (ii) references herein to the term “Issuing Bank” shall be
deemed to refer to such successor or such addition or to any previous Issuing Bank, or to such
successor or such addition and all previous Issuing Banks, as the context shall require. After the
resignation or replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a
party hereto and shall continue to have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit issued by it prior to such resignation or
replacement, but shall not be required to issue additional Letters of Credit. If at any time there
is more than one Issuing Bank hereunder, Borrower may, in its discretion, select which Issuing Bank
is to issue any particular Letter of Credit.




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          (l) Other. The Issuing Bank shall be under no obligation to issue any Letter of
Credit if





     (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit,
or any Requirement of Law applicable to the Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction
over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder)
not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed
loss, cost or expense which was not applicable on the Effective Date and which the Issuing
Bank in good faith deems material to it; or




     (ii) the issuance of such Letter of Credit would violate one or more policies of the
Issuing Bank.


The Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) the Issuing Bank
would have no obligation at such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.




          SECTION 2.18 Increase in Commitments.




          (a) Borrower Request. Borrower may by written notice to the Administrative Agent
elect to request (x) prior to the Revolving Maturity Date, an increase to the existing Revolving
Commitments and/or (y) the establishment of one or more new Term Loan Commitments (each, an
“Incremental Term Loan Commitment”) by an amount not in excess of $25,000,000 in the aggregate.
Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which Borrower
proposes that the increased or new Commitments shall be effective, which shall be a date not less
than 10 Business Days after the date on which such notice is delivered to the Administrative Agent
and (ii) the identity of each Eligible Assignee to whom Borrower proposes any portion of such
increased or new Commitments be allocated and the amounts of such allocations; provided that any
existing Lender approached to provide all or a portion of the increased or new Commitments may
elect or decline, in its sole discretion, to provide such increased or new Commitment.




          (b) Conditions. The increased or new Commitments shall become effective, as of such
Increase Effective Date; provided that:





     (i) each of the conditions set forth in Section 4.02 shall be satisfied;




     (ii) no Default shall have occurred and be continuing or would result from the
borrowings to be made on the Increase Effective Date;




     (iii) after giving pro forma effect to the borrowings to be made on the Increase
Effective Date and to any change in Consolidated EBITDA and any increase in Indebtedness
resulting from the consummation of any Permitted Acquisition concurrently with such
borrowings as of the date of the most recent financial statements delivered pursuant to
Section 5.01(a) or (b), Borrower shall be in compliance with each of the
covenants set forth in Section 6.10;



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     (iv) Borrower shall make any payments required pursuant to Section 2.13 in
connection with any adjustment of Revolving Loans pursuant to Section 2.18(d); and




     (v) Borrower shall deliver or cause to be delivered any legal opinions or other
documents reasonably requested by the Administrative Agent in connection with any such
transaction.



          (c) Terms of New Loans and Commitments. The terms and provisions of Loans made
pursuant to the new Commitments shall be as follows:





     (i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments
(“Incremental Term Loans”) shall be, except as otherwise set forth herein or in the Increase
Joinder, identical to the Term Loans (it being understood that Incremental Term Loans may be
a part of the Term Loans);




     (ii) the terms and provisions of Revolving Loans made pursuant to new Commitments shall
be identical to the Revolving Loans;




     (iii) the weighted average life to maturity of any Incremental Term Loans shall be no
shorter than the weighted average life to maturity of the existing Term Loans;




     (iv) the maturity date of Incremental Term Loans (the “Incremental Term Loan Maturity
Date”) shall not be earlier than the Final Maturity Date;




     (v) the Applicable Margins for the Incremental Term Loans shall be determined by
Borrower and the Lenders of the Incremental Term Loans; provided that in the event that the
Applicable Margins for any Incremental Term Loans are greater than the Applicable Margins
for the Term Loans by more than 25 basis points, then the Applicable Margins for the Term
Loans shall be increased to the extent necessary so that the Applicable Margins for the
Incremental Term Loans are equal to the Applicable Margins for the Term Loans plus 25 basis
points; provided, further, that in determining the Applicable Margins applicable to the Term
Loans and the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees
(which shall be deemed to constitute like amounts of OID) payable by Borrower to the Lenders
of the Term Loans or the Incremental Term Loans in the primary syndication thereof shall be
included (with OID being equated to interest based on an assumed four-year life to maturity)
and (y) customary arrangement or commitment fees payable to the Sole Lead Arranger (or its
affiliates) in connection with the Term Loans or to one or more arrangers (or their
affiliates) of the Incremental Term Loans shall be excluded; and




     (vi) to the extent that the terms and provisions of Incremental Term Loans are not
identical to the Term Loans (except to the extent permitted by clause (iv) or (v) above)
they shall be reasonably satisfactory to the Administrative Agent.


The increased or new Commitments shall be effected by a joinder agreement (the “Increase Joinder”)
executed by Borrower, the Administrative Agent and each Lender making such increased or new
Commitment, in form and substance satisfactory to each of them. The Increase Joinder may, without
the consent of any other Lenders, effect such amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect
the provisions of this Section 2.18. In addition, unless otherwise specifically provided
herein, all references in Loan Documents to Revolving Loans shall be deemed, unless the context
otherwise requires, to include references to


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 Revolving Loans made pursuant to new Commitments and
Incremental Term Loans that are Term Loans, respectively, made pursuant to this Agreement.




          (d) Adjustment of Revolving Loans. To the extent the Commitments being increased on
the relevant Increase Effective Date are Revolving Commitments, then each of the Revolving Lenders
having a Revolving Commitment prior to such Increase Effective Date (the “Pre-Increase Revolving
Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving
Commitment on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such
Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the
principal amount thereof, such interests in the Revolving Loans and participation interests in LC
Exposure outstanding on such Increase Effective Date as shall be necessary in order that, after
giving effect to all such assignments and purchases, such Revolving Loans and participation
interests in LC Exposure will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving
Lenders ratably in accordance with their Revolving Commitments after giving effect to such
increased Revolving Commitments.




          (e) Making of New Term Loans. On any Increase Effective Date on which new Commitments
for Term Loans are effective, subject to the satisfaction of the foregoing terms and conditions,
each Lender of such new Commitment shall make a Term Loan to Borrower in an amount equal to its new
Commitment.




          (f) Equal and Ratable Benefit. The Loans and Commitments established pursuant to this
paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits
afforded by, this Agreement and the other Loan Documents, and shall, without limiting the
foregoing, benefit equally and ratably from the Guarantees and security interests created by the
Security Documents. The Loan Parties shall take any actions reasonably required by the
Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by
the Security Documents continue to be perfected under the UCC or otherwise after giving effect to
the establishment of any such Class of term loans or any such new Commitments.




          SECTION 2.19 Reallocation of Original Term Loans and Additional Term Loans. On the Effective
Date, the Administrative Agent shall reallocate the Original Term Loans and the Additional Term
Loans such that, following such reallocation, the Additional Term Lenders and each Lender holding
an Original Term Loan shall, as nearly as practicable, hold the same aggregate amount of Term Loans
(including Additional Term Loans) held by it prior to such reallocation but shall hold Term Loans
which are LIBOR Loans or ABR Loans in the same proportion as each other Lender holding Term Loans.




ARTICLE III




REPRESENTATIONS AND WARRANTIES




          Each Loan Party represents and warrants to the Administrative Agent, the Collateral Agent, the
Issuing Bank and each of the Lenders (with references to the Companies being references thereto
after giving effect to the Current Transactions unless otherwise expressly stated) that:




          SECTION 3.01 Organization; Powers. Each Company (a) is duly organized and validly existing under
the laws of the jurisdiction of its organization, (b) has all requisite power and authority to
carry on its business as now conducted and to own and lease its property and (c) is qualified and
in good standing (to the extent such concept is applicable in the applicable jurisdiction) to do
business in




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every jurisdiction where such qualification is required, except in such jurisdictions
where the failure to so qualify or be in good standing, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. There is no existing default under
any Organizational Document of any Company or any event which, with the giving of notice or passage
of time or both, would constitute a default by any party thereunder.




          SECTION 3.02 Authorization; Enforceability. The Current Transactions to be entered into by each
Loan Party are within such Loan Party’s powers and have been duly authorized by all necessary
action on the part of such Loan Party. This Agreement has been duly executed and delivered by each
Loan Party and constitutes, and each other Loan Document to which any Loan Party is to be a party,
when executed and delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of such Loan Party, 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.




          SECTION 3.03 No Conflicts. Except as set forth on Schedule 3.03, the Current Transactions
(a) do not require any consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except (i) such as have been obtained or made and are in full force and
effect, (ii) filings necessary to perfect Liens created by the Loan Documents and (iii) consents,
approvals, registrations, filings, permits or actions the failure to obtain or perform which could
not reasonably be expected to result in a Material Adverse Effect, (b) will not violate the
Organizational Documents of any Company, (c) will not violate any Requirement of Law, (d) will not
violate or result in a default or require any consent or approval under any indenture, agreement or
other instrument binding upon any Company or its property, or give rise to a right thereunder to
require any payment to be made by any Company, except for violations, defaults or the creation of
such rights that could not reasonably be expected to result in a Material Adverse Effect, and (e)
will not result in the creation or imposition of any Lien on any property of any Company, except
Liens created by the Loan Documents and Permitted Liens.




          SECTION 3.04 Financial Statements; Projections.




          (a) Historical Financial Statements. Borrower has heretofore delivered to the Lenders
the consolidated balance sheets and related statements of income, stockholders’ equity and cash
flows of Borrower (i) as of and for the last three fiscal years ended more than 90 days prior to
the Effective Date, audited by and accompanied by the unqualified opinion of KPMG LLP, independent
public accountants and (ii) as of and for each fiscal month and quarter ended more than 30 but less
than 90 days prior to the Effective Date, and for the comparable periods of the preceding fiscal
year, in each case, certified by the chief financial officer of Borrower. Such financial
statements and all financial statements delivered pursuant to Sections 5.01(a), (b)
and (c) have been prepared in accordance with GAAP and present fairly and accurately the
financial condition and results of operations and cash flows of Borrower as of the dates and for
the periods to which they relate.




          (b) No Liabilities. Except as set forth in the financial statements referred to in
Section 3.04(a), there are no liabilities of any Company of any kind, whether accrued,
contingent, absolute, determined, determinable or otherwise, which could reasonably be expected to
result in a Material Adverse Effect, and there is no existing condition, situation or set of
circumstances which could reasonably be expected to result in such a liability, other than
liabilities under the Loan Documents. Since July 31, 2006, there has been no event, change,
circumstance or occurrence that, individually or in the aggregate, has had or could reasonably be
expected to result in a Material Adverse Effect.




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          (c) Pro Forma Financial Statements. Borrower has heretofore delivered to the Lenders
Borrower’s unaudited pro forma consolidated balance sheet and statements of income and pro forma
EBITDA as of and for the twelve-month period ended April 30, 2007 after giving effect to the pro
forma EBITDA of the Original Transactions as of and for the twelve-month period ended May 31, 2007
and after giving effect to the pro forma EBITDA of the Current Transactions as if they had occurred
on May 31, 2007. Such pro forma financial statements and information have been prepared in good
faith by the Loan Parties, based on the assumptions stated therein (which assumptions are believed
by the Loan Parties on the date hereof and on the Effective Date to be reasonable), are based on
the best information available to the Loan Parties as of the date of delivery thereof, accurately
reflect all adjustments required to be made to give effect to the Original Transactions and the
Current Transactions, as applicable, and (other than with respect to certain cost savings
adjustments set forth therein) in accordance with Regulation S-X, and present fairly in all material respects
the pro forma consolidated financial position, results of operations and EBITDA of Borrower as of such date and for such
periods, assuming that the Original Transactions and the Current Transactions had occurred at such dates.
The further adjustments made to such pro forma financial statements and information in respect of
cost savings adjustments relating to the Current Transactions reflect the good faith determination
of Borrower as the achievability of such cost savings and are based on assumptions believed by
Borrower to be reasonable.




          (d) Forecasts. The forecasts of financial performance of Borrower and its
subsidiaries furnished to the Lenders have been prepared in good faith by Borrower and based on
assumptions believed by Borrower to reasonable.




          (e) netASPx Transactions Financial Statements. Borrower has heretofore delivered to
the Lenders consolidated balance sheets and related statements of income, stockholders’ equity and
cash flows of netASPx, Inc. and its consolidated subsidiaries and, to the Company’s knowledge, such
financial statements have been prepared in accordance with GAAP and present fairly and accurately
the financial condition and results of operations and cash flows of such entities as of the dates
and for the periods to which they relate.




          SECTION 3.05 Properties.




          (a) Generally. Each Company has good title to, or valid leasehold interests in, all
its property material to its business, free and clear of all Liens except for, in the case of
Collateral, Permitted Collateral Liens and, in the case of all other material property, Permitted
Liens and minor irregularities or deficiencies in title that, individually or in the aggregate, do
not interfere with its ability to conduct its business as currently conducted or to utilize such
property for its intended purpose. The property of the Companies, taken as a whole, (i) is in good
operating order, condition and repair (ordinary wear and tear excepted) and (ii) constitutes all
the property which is required for the business and operations of the Companies as presently
conducted.




          (b) Real Property. Schedules 8(a) and 8(b) to the Perfection
Certificate dated the Effective Date contain a true and complete list of each interest in Real
Property (i) owned by any Company as of the Effective Date and describes the type of interest
therein held by such Company and whether such owned Real Property is leased and if leased whether
the underlying Lease contains any option to purchase all or any portion of such Real Property or
any interest therein or contains any right of first refusal relating to any sale of such Real
Property or any portion thereof or interest therein and (ii) leased, subleased or otherwise
occupied or utilized by any Company, as lessee, sublessee, franchisee or licensee, as of the
Effective Date and describes the type of interest therein held by such Company and, in each of the
cases




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described in clauses (i) and (ii) of this Section 3.05(b), whether any Lease requires
the consent of the landlord or tenant thereunder, or other party thereto, to the Current
Transactions.




          (c) No Casualty Event. No Company has received any notice of, nor has any knowledge
of, the occurrence or pendency or contemplation of any Casualty Event affecting all or any portion
of its property. No Mortgage encumbers improved Real Property that is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area having special flood
hazards within the meaning of the National Flood Insurance Act of 1968 unless flood insurance
available under such Act has been obtained in accordance with Section 5.04.




          (d) Collateral. Each Company owns or has rights to use all of the Collateral and all
rights with respect to any of the foregoing used in, necessary for or material to each Company’s
business as currently conducted. The use by each Company of such Collateral and all such rights
with respect to the foregoing do not infringe on the rights of any person other than such
infringement which could not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect. No claim has been made and remains outstanding that any Company’s use
of any Collateral does or may violate the rights of any third party that could, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.06 Intellectual Property.




          (a) Ownership/No Claims. Each Loan Party owns, or is licensed to use, all patents,
patent applications, trademarks, trade names, servicemarks, copyrights, technology, trade secrets,
proprietary information, domain names, know-how and processes necessary for the conduct of its
business as currently conducted (the “Intellectual Property”), except for those the failure to own
or license which, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. No claim has been asserted and is pending by any person challenging or
questioning the use of any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does any Loan Party know of any valid basis for any such claim. The use
of such Intellectual Property by each Loan Party does not infringe the rights of any person, except
for such claims and infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.




          (b) Registrations. Except pursuant to licenses and other user agreements entered into
by each Loan Party in the ordinary course of business that are listed in Schedule 12(a) or
12(b) to the Perfection Certificate, on and as of the Effective Date (i) each Loan Party
owns and possesses the right to use, and has done nothing to authorize or enable any other person
to use, any copyright, patent or trademark (as such terms are defined in the Security Agreement)
listed in Schedule 12(a) or 12(b) to the Perfection Certificate and (ii) all
registrations listed in Schedule 12(a) or 12(b) to the Perfection Certificate are
valid and in full force and effect.




          (c) No Violations or Proceedings. To each Loan Party’s knowledge, on and as of the
Effective Date, there is no material violation by others of any right of such Loan Party with
respect to any copyright, patent or trademark listed in Schedule 12(a) or 12(b) to
the Perfection Certificate as supplemented through the Effective Date, pledged by it under the name
of such Loan Party except as may be set forth on Schedule 3.06(c).





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          SECTION 3.07 Equity Interests and Subsidiaries.




          (a) Equity Interests. Schedules 1(a) and 10(a) to the Perfection
Certificate dated the Effective Date set forth a list of (i) all the Subsidiaries of Borrower and
their jurisdictions of organization as of the Effective Date and (ii) the number of each class of
its Equity Interests authorized, and the number outstanding, on the Effective Date and the number
of shares covered by all outstanding options, warrants, rights of conversion or purchase and
similar rights at the Effective Date. All Equity Interests of each Company are duly and validly
issued and are fully paid and non-assessable, and, other than the Equity Interests of Borrower, are
owned by Borrower, directly or indirectly through Wholly Owned Subsidiaries. Each Loan Party is
the record and beneficial owner of, and has good and marketable title to, the Equity Interests
pledged by it under the Security Agreement, free of any and all Liens, rights or claims of other
persons, except the security interest created by the Security Agreement, and there are no
outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar
agreements outstanding with respect to, or property that is convertible into, or that requires the
issuance or sale of, any such Equity Interests.




          (b) No Consent of Third Parties Required. No consent of any person including any
other general or limited partner, any other member of a limited liability company, any other
shareholder or any other trust beneficiary is necessary or reasonably desirable (from the
perspective of a secured party) in connection with the creation, perfection or first priority
status of the security interest of the Collateral Agent in any Equity Interests pledged to the
Collateral Agent for the benefit of the Secured Parties under the Security Agreement or the
exercise by the Collateral Agent of the voting or other rights provided for in the Security
Agreement or the exercise of remedies in respect thereof.




          (c) Organizational Chart. An accurate organizational chart, showing the ownership
structure of Borrower and each Subsidiary on the Effective Date, and after giving effect to the
Acquisition Transactions, is set forth on Schedule 10(a) to the Perfection Certificate
dated the Effective Date.




          SECTION 3.08 Litigation; Compliance with Laws. There are no actions, suits or
proceedings at law or in equity by or before any Governmental Authority now pending or, to the
knowledge of any Company, threatened against or affecting any Company or any business, property or
rights of any Company (i) that involve any Loan Document or any of the Acquisition Transactions or
(ii) as to which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect. Except for matters covered by Section 3.18, no Company or any
of its property is in violation of, nor will the continued operation of its property as currently
conducted violate, any Requirements of Law (including any zoning or building ordinance, code or
approval or any building permits) or any restrictions of record or agreements affecting any
Company’s Real Property or is in default with respect to any Requirement of Law, where such
violation or default, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.




          SECTION 3.09 Agreements. No Company is a party to any agreement or instrument or
subject to any corporate or other constitutional restriction that has resulted or could reasonably
be expected to result in a Material Adverse Effect. No Company is in default in any manner under
any provision of any indenture or other agreement or instrument evidencing Indebtedness, or any
other agreement or instrument to which it is a party or by which it or any of its property is or
may be bound, where such default could reasonably be expected to result in a Material Adverse
Effect, and no condition exists which, with the giving of notice or the lapse of time or both,
would constitute such a default. Schedule 3.09 accurately and completely lists all
Material Agreements (other than leases of Real Property set
forth on Schedule 8(a) or 8(b) to the Perfection Certificate dated the
Effective Date) to which any





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Company is a party which are in effect on the Effective Date in
connection with the operation of the business conducted thereby and Borrower has delivered to the
Administrative Agent complete and correct copies of all such Material Agreements, including any
amendments, supplements or modifications with respect thereto, and all such agreements are in full
force and effect.




          SECTION 3.10 Federal Reserve Regulations. No Company is engaged principally, or as
one of its important activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock. No part of the proceeds of any Loan or any Letter of Credit will be used,
whether directly or indirectly, and whether immediately, incidentally or ultimately, for any
purpose that entails a violation of, or that is inconsistent with, the provisions of the
regulations of the Board, including Regulation T, U or X. The pledge of the Securities Collateral
pursuant to the Security Agreement does not violate such regulations.




          SECTION 3.11 Investment Company Act. No Company is an “investment company” or a
company “controlled” by an “investment company,” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.




          SECTION 3.12 Use of Proceeds. Borrower will use (a) the proceeds of the Additional
Term Loans to consummate the netASPx Transactions and (b) the proceeds of the Revolving Loans after
the Effective Date for general corporate purposes (including to effect Permitted Acquisitions other
than the netASPx Transactions).




          SECTION 3.13 Taxes. Each Company has (a) timely filed or caused to be timely filed
all federal Tax Returns and all material state, local and foreign Tax Returns or materials (or
timely extensions) required to have been filed by it and all such Tax Returns are true and correct
in all material respects and (b) duly and timely paid, collected or remitted or caused to be duly
and timely paid, collected or remitted all Taxes (whether or not shown on any Tax Return) due and
payable, collectible or remittable by it and all assessments received by it, except Taxes (i) that
are being contested in good faith by appropriate proceedings and for which such Company has set
aside on its books adequate reserves in accordance with GAAP and (ii) which could not, individually
or in the aggregate, have a Material Adverse Effect. Each Company has made adequate provision in
accordance with GAAP for all Taxes not yet due and payable. Each Company is unaware of any
proposed or pending tax assessments, deficiencies or audits that could be reasonably expected to,
individually or in the aggregate, result in a Material Adverse Effect. No Company has ever been a
party to any understanding or arrangement constituting a “tax shelter” within the meaning of
Section 6111(c), Section 6111(d) or Section 6662(d)(2)(C)(iii) of the Code, or has ever
“participated” in a “reportable transaction” within the meaning of Treasury Regulation Section
1.6011-4, except as could not be reasonably expected to, individually or in the aggregate, result
in a Material Adverse Effect.




          SECTION 3.14 No Material Misstatements. No information, report, financial statement,
certificate, Borrowing Request, LC Request, exhibit or schedule furnished by or on behalf of any
Company to the Administrative Agent or any Lender in connection with the negotiation of any Loan
Document or included therein or delivered pursuant thereto, taken as a whole, or the Confidential
Information Memorandum contained or contains any material misstatement of fact or omitted or omits
to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading as of the date such information is
dated or certified; provided that to the extent any such information, report, financial statement,
exhibit or schedule was based upon or constitutes a forecast or projection, each Company represents
only that it acted in good faith and utilized





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reasonable assumptions and due care in the preparation of such information, report, financial
statement, exhibit or schedule.




          SECTION 3.15 Labor Matters. As of the Effective Date, there are no strikes, lockouts
or slowdowns against any Company pending or, to the knowledge of any Company, threatened. The
hours worked by and payments made to employees of any Company have not been in violation of the
Fair Labor Standards Act of 1938, as amended, or any other applicable federal, state, local or
foreign law dealing with such matters in any manner which could reasonably be expected to result in
a Material Adverse Effect. All payments due from any Company, or for which any claim may be made
against any Company, on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of such Company except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect. The
consummation of the Current Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement to which any
Company is bound.




          SECTION 3.16 Solvency. Immediately after the consummation of the Current Transactions
to occur on the Effective Date and immediately following the making of each Loan and after giving
effect to the application of the proceeds of each Loan, (a) the fair value of the properties of
each Loan Party (on a consolidated basis with its Subsidiaries) will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the
property of each Loan Party (on a consolidated basis with its Subsidiaries) will be greater than
the amount that will be required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) each Loan Party (on a consolidated basis with its Subsidiaries) will be able to pay
its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; and (d) each Loan Party (on a consolidated basis with its
Subsidiaries) will not have unreasonably small capital with which to conduct its business in which
it is engaged as such business is now conducted and is proposed to be conducted following the
Effective Date.




          SECTION 3.17 Employee Benefit Plans. Each Company and its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events, could reasonably be
expected to result in material liability of any Company or any of its ERISA Affiliates or the
imposition of a Lien on any of the property of any Company. The present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $250,000 the fair market value of
the property of all such underfunded Plans. Using actuarial assumptions and computation methods
consistent with subpart I of subtitle E of Title IV of ERISA, the aggregate liabilities of each
Company or its ERISA Affiliates to all Multiemployer Plans in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such Multiemployer Plan, could
not reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.18 Environmental Matters.




          (a) Except as set forth in Schedule 3.18 and except as, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect:




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     (i) The Companies and their businesses, operations and Real Property are and in the
last six years have been in compliance with, and the Companies have no liability under any
Environmental Law;




     (ii) The Companies have obtained all Environmental Permits required for the conduct of
their businesses and operations, and the ownership, operation and use of their property,
under Environmental Law, all such Environmental Permits are valid and in good standing and,
under the currently effective business plan of the Companies, no expenditures or operational
adjustments will be required in order to renew or modify such Environmental Permits during
the next five years;




     (iii) There has been no Release or threatened Release of Hazardous Material on, at,
under or from any Real Property or facility presently or formerly owned, leased or operated
by the Companies or their predecessors in interest that could result in liability by the
Companies under any applicable Environmental Law;




     (iv) There is no Environmental Claim pending or, to the knowledge of the Companies,
threatened against the Companies, or relating to the Real Property currently or formerly
owned, leased or operated by the Companies or their predecessors in interest or relating to
the operations of the Companies, and there are no actions, activities, circumstances,
conditions, events or incidents that could form the basis of such an Environmental Claim;
and




     (v) No person with an indemnity or contribution obligation to the Companies relating to
compliance with or liability under Environmental Law is in default with respect to such
obligation.




     (b) Except as set forth in Schedule 3.18:




     (i) No Company is obligated to perform any action or otherwise incur any expense under
Environmental Law pursuant to any order, decree, judgment or agreement by which it is bound
or has assumed by contract, agreement or operation of law, and no Company is conducting or
financing any Response pursuant to any Environmental Law with respect to any Real Property
or any other location;




     (ii) No Real Property or facility owned, operated or leased by the Companies and, to
the knowledge of the Companies, no Real Property or facility formerly owned, operated or
leased by the Companies or any of their predecessors in interest is (i) listed or proposed
for listing on the National Priorities List promulgated pursuant to CERCLA or (ii) listed on
the Comprehensive Environmental Response, Compensation and Liability Information System
promulgated pursuant to CERCLA or (iii) included on any similar list maintained by any
Governmental Authority including any such list relating to petroleum;




     (iii) No Lien has been recorded or, to the knowledge of any Company, threatened under
any Environmental Law with respect to any Real Property or other assets of the Companies;




     (iv) The execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not require any notification, registration,
filing, reporting, disclosure, investigation, remediation or cleanup pursuant to any
Governmental Real Property Disclosure Requirements or any other applicable Environmental
Law; and



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     (v) The Companies have made available to the Lenders all material records and files in
the possession, custody or control of, or otherwise reasonably available to, the Companies
concerning compliance with or liability under Environmental Law, including those concerning
the actual or suspected existence of Hazardous Material at Real Property or facilities
currently or formerly owned, operated, leased or used by the Companies.



          SECTION 3.19 Insurance. Schedule 3.19 sets forth a true, complete and correct
description of all insurance maintained by each Company as of the Effective Date. All insurance
maintained by the Companies is in full force and effect, all premiums have been duly paid, no
Company has received notice of violation or cancellation thereof, the properties, and the use,
occupancy and operation thereof, comply in all material respects with all Insurance Requirements,
and there exists no default under any Insurance Requirement. Each Company has insurance in such
amounts and covering such risks and liabilities as are customary for companies of a similar size
engaged in similar businesses in similar locations.




          SECTION 3.20 Security Documents.




          (a) Security Agreement. The Security Agreement is effective to create in favor of the
Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and
security interests in, the Security Agreement Collateral and, when (i) financing statements and
other filings in appropriate form are filed in the offices specified on Schedule 7 to the
Perfection Certificate and (ii) upon the taking of possession or control by the Collateral Agent of
the Security Agreement Collateral with respect to which a security interest may be perfected only
by possession or control (which possession or control shall be given to the Collateral Agent to the
extent possession or control by the Collateral Agent is required by each Security Agreement), the
Liens created by the Security Agreement shall constitute fully perfected Liens on, and security
interests in, all right, title and interest of the grantors in the Security Agreement Collateral
(other than such Security Agreement Collateral in which a security interest cannot be perfected
under the UCC as in effect at the relevant time in the relevant jurisdiction), in each case subject
to no Liens other than Permitted Collateral Liens.




          (b) PTO Filing; Copyright Office Filing. When the Security Agreement or a short form
thereof is filed in the United States Patent and Trademark Office and the United States Copyright
Office, the Liens created by such Security Agreement shall constitute fully perfected Liens on, and
security interests in, all right, title and interest of the grantors thereunder in Patents (as
defined in the Security Agreement) registered or applied for with the United States Patent and
Trademark Office or Copyrights (as defined in such Security Agreement) registered or applied for
with the United States Copyright Office, as the case may be, in each case subject to no Liens other
than Permitted Collateral Liens.




          (c) Mortgages. Each Mortgage is effective to create, in favor of the Collateral
Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable first
priority Liens on, and security interests in, all of the Loan Parties’ right, title and interest in
and to the Mortgaged Properties thereunder and the proceeds thereof, subject only to Permitted
Collateral Liens or other Liens acceptable to the Collateral Agent, and when the Mortgages are
filed in the offices specified in the local counsel opinion delivered with respect thereto in
accordance with the provisions of Sections 5.11 and 5.12, the Mortgages shall
constitute fully perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in the Mortgaged Properties and the proceeds thereof, in each case prior and
superior in right to any other person, other than Liens permitted by such Mortgage.




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          (d) Valid Liens. Each Security Document delivered pursuant to Sections 5.11
and 5.12 will, upon execution and delivery thereof, be effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on,
and security interests in, all of the Loan Parties’ right, title and interest in and to the
Collateral thereunder, and (i) when all appropriate filings or recordings are made in the
appropriate offices as may be required under applicable law and (ii) upon the taking of possession
or control by the Collateral Agent of such Collateral with respect to which a security interest may
be perfected only by possession or control (which possession or control shall be given to the
Collateral Agent to the extent required by any Security Document), such Security Document will
constitute fully perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in such Collateral, in each case subject to no Liens other than the applicable
Permitted Collateral Liens.




          SECTION 3.21 Anti-Terrorism Law. (a) No Loan Party and, to the knowledge of the Loan
Parties, none of its Affiliates is in violation of any Requirement of Law relating to terrorism or
money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001 (the “Executive Order”), and the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56.




          (a) No Loan Party and to the knowledge of the Loan Parties, no Affiliate or broker or other
agent of any Loan Party acting or benefiting in any capacity in connection with the Loans is any of
the following:





     (i) a person that is listed in the annex to, or is otherwise subject to the provisions
of, the Executive Order;




     (ii) a person owned or controlled by, or acting for or on behalf of, any person that is
listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;




     (iii) a person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;




     (iv) a person that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order; or




     (v) a person that is named as a “specially designated national and blocked person” on
the most current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any replacement website or other replacement
official publication of such list.



          (b) No Loan Party and, to the knowledge of the Loan Parties, no broker or other agent of any
Loan Party acting in any capacity in connection with the Loans (i) conducts any business or engages
in making or receiving any contribution of funds, goods or services to or for the benefit of any
person described in paragraph (b) above, (ii) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to the Executive Order, or
(iii) engages in or conspires to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.




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          SECTION 3.22 netASPx Acquisition Documents; Representations and Warranties in netASPx
Acquisition Agreement. Schedule 3.22 lists (i) each exhibit, schedule, annex or other
attachment to the netASPx Acquisition Agreement and (ii) each agreement, certificate,
instrument, letter or other document contemplated by the netASPx Acquisition Agreement or any item
referred to in clause (i) to be entered into, executed or delivered or to become effective in
connection with the netASPx Acquisition or otherwise entered into, executed or delivered in
connection with the netASPx Acquisition. The Lenders have been furnished true and complete copies
of each netASPx Acquisition Documents to the extent executed and delivered on or prior to the
Effective Date. All representations and warranties of each Company set forth in the netASPx
Acquisition Agreement were true and correct in all material respects as of the time such
representations and warranties were made and shall be true and correct in all material respects as
of the Effective Date as if such representations and warranties were made on and as of such date,
unless stated to relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier date. To the
knowledge of each Company, each of the representations and warranties made by each other party to
each agreement referred to above is true and correct in all material respects as of the Effective
Date. At the time of the consummation thereof, the netASPx Acquisition shall qualify as a
Permitted Acquisition under this Agreement.




ARTICLE IV




CONDITIONS TO CREDIT EXTENSIONS




          SECTION 4.01 Conditions to Credit Extension; Conditions to Effective Date Credit
Extension. The obligation of each Lender and, if applicable, each Issuing Bank to fund the
Credit Extension requested to be made by it on the Effective Date shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this Section 4.01.




          (a) Loan Documents. All legal matters incident to this Agreement, the Credit
Extensions hereunder and the other Loan Documents shall be satisfactory to the Lenders, to the
Issuing Bank and to the Administrative Agent and there shall have been delivered to the
Administrative Agent an executed counterpart of each of the Loan Documents and the Perfection
Certificate.




          (b) Corporate Documents. The Administrative Agent shall have received:





     (i) a certificate of the secretary or assistant secretary of each Loan Party dated the
Effective Date, certifying (A) that attached thereto is a true and complete copy of each
Organizational Document of such Loan Party certified (to the extent applicable) as of a
recent date by the Secretary of State of the state of its organization, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of
such Loan Party authorizing the execution, delivery and performance of the Loan Documents to
which such person is a party and, in the case of Borrower, the borrowings hereunder, and
that such resolutions have not been modified, rescinded or amended and are in full force and
effect and (C) as to the incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection herewith on behalf of such Loan
Party (together with a certificate of another officer as to the incumbency and specimen
signature of the secretary or assistant secretary executing the certificate in this clause
(i));




     (ii) a certificate as to the good standing of each Loan Party (in so-called “long-form”
if available) as of a recent date, from such Secretary of State (or other applicable
Governmental Authority); and



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     (iii) such other documents as the Lenders, the Issuing Bank or the Administrative Agent
may reasonably request.



          (c) Officers’ Certificate. The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the chief executive officer and the chief
financial officer of Borrower, confirming compliance with the conditions precedent set forth in
this Section 4.01 and Sections 4.02(b) and (c).




          (d) Opinions of Counsel. The Administrative Agent shall have received, on behalf of
itself, the other Agents, the Sole Lead Arranger, the Lenders and the Issuing Bank, a favorable
written opinion of (i) BRL Law Group LLC, special counsel for the Loan Parties and (ii) each local
counsel listed on Schedule 4.01(d), in each case (A) dated the Effective Date, (B)
addressed to the Agents, the Issuing Bank and the Lenders and (C) covering the matters set forth in
Exhibit M and such other matters relating to the Loan Documents and the Current
Transactions as the Administrative Agent shall reasonably request.




          (e) Solvency Certificate. The Administrative Agent shall have received a solvency
certificate in the form of Exhibit N, dated the Effective Date and signed by the chief
financial officer of Borrower.




          (f) Requirements of Law. The Lenders shall be satisfied that Borrower, its
Subsidiaries and the Current Transactions shall be in full compliance with all material
Requirements of Law, including Regulations T, U and X of the Board, and shall have received
satisfactory evidence of such compliance reasonably requested by them.




          (g) Consents. The Lenders shall be satisfied that all requisite Governmental
Authorities and third parties shall have approved or consented to the Current Transactions, and
there shall be no governmental or judicial action, actual or threatened, that has or would have,
singly or in the aggregate, a reasonable likelihood of restraining, preventing or imposing
burdensome conditions on the Transactions or the other transactions contemplated hereby.




          (h) Litigation. There shall be no litigation, public or private, or administrative
proceedings, governmental investigation or other legal or regulatory developments, actual or
threatened, that, singly or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect, or could materially and adversely affect the ability of Borrower and the
Subsidiaries to fully and timely perform their respective obligations under the Loan Documents, or
the ability of the parties to consummate the financings contemplated hereby or the other Current
Transactions.




          (i) Sources and Uses. The sources and uses of the Loans shall be as set forth in
Section 3.12.




          (j) Fees. The Sole Lead Arranger and Administrative Agent shall have received all
Fees and other amounts due and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including the reasonable legal
fees and expenses of Cahill Gordon & Reindel llp, special counsel to the Agents, and the
fees and expenses of any local counsel, foreign counsel, appraisers, consultants and other advisors
not to exceed $400,000 in the aggregate) required to be reimbursed or paid by Borrower hereunder or
under any other Loan Document.




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          (k) Personal Property Requirements. To the extent not previously delivered, the
Collateral Agent shall have received:





     (i) all certificates, agreements or instruments representing or evidencing the
Securities Collateral accompanied by instruments of transfer and stock powers undated and
endorsed in blank;




     (ii) the Intercompany Note executed by and among Borrower and each of its Subsidiaries,
accompanied by instruments of transfer undated and endorsed in blank;




     (iii) all other certificates, agreements, including Control Agreements, or instruments
necessary to perfect the Collateral Agent’s security interest in all Chattel Paper, all
Instruments, all Deposit Accounts and all Investment Property of each Loan Party (as each
such term is defined in the Security Agreement and to the extent required by the Security
Agreement);




     (iv) UCC financing statements in appropriate form for filing under the UCC, filings
with the United States Patent and Trademark Office and United States Copyright Office and
such other documents under applicable Requirements of Law in each jurisdiction as may be
necessary or appropriate or, in the opinion of the Collateral Agent, desirable to perfect
the Liens created, or purported to be created, by the Security Documents;




     (v) certified copies of UCC, United States Patent and Trademark Office and United
States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit
searches or equivalent reports or searches, each of a recent date listing all effective
financing statements, lien notices or comparable documents that name any Loan Party as
debtor and that are filed in those state and county jurisdictions in which any Loan Party is
organized or maintains its principal place of business and such other searches that are
required by the Perfection Certificate or that the Collateral Agent deems necessary or
appropriate, none of which encumber the Collateral covered or intended to be covered by the
Security Documents (other than Permitted Collateral Liens or any other Liens acceptable to
the Collateral Agent);




     (vi) with respect to each location set forth on Schedule 4.01(k)(vi), a
Landlord Access Agreement or Bailee Letter, as applicable; provided that no such Landlord
Access Agreement or Bailee Letter shall be required to be delivered prior to the Effective
Date with respect to any Real Property that could not be obtained by such date provided that
the applicable Loan Party comply with the requirements of Section 5.15(a); and




     (vii) evidence acceptable to the Collateral Agent of payment or arrangements for
payment by the Loan Parties of all applicable recording taxes, fees, charges, costs and
expenses required for the recording of the Security Documents.



          (l) Insurance. The Administrative Agent shall have received a copy of, or a
certificate as to coverage under, the insurance policies required by Section 5.04 and the
applicable provisions of the Security Documents, each of which shall be endorsed or otherwise
amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as
applicable) and shall name the Collateral Agent, on behalf of the Secured Parties, as additional
insured, in form and substance satisfactory to the Administrative Agent.




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          (m) USA Patriot Act. The Lenders shall have received, sufficiently in advance of the
Effective Date, all documentation and other information that may be required by the Lenders in
order to enable compliance with applicable “know your customer” and anti-money laundering rules and
regulations, including the United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Patriot Act”) including the information described in Section
10.13.




          (n) Consummation of netASPx Acquisition. The netASPx Acquisition (and the
transactions incidental thereto) shall have been consummated or shall be consummated simultaneously
on the Effective Date, in each case in all material respects in accordance with the terms hereof
and the terms of the netASPx Acquisition Documents, without the waiver or amendment of any such
terms not approved by the Administrative Agent, other than any waiver or amendment thereof that is
not materially adverse to the interests of the Lenders.




          SECTION 4.02 Conditions to All Credit Extensions. The obligation of each Lender and
each Issuing Bank to make any Credit Extension (including the Credit Extension to be funded on the
Effective Date) shall be subject to, and to the satisfaction of, each of the conditions precedent
set forth below.




          (a) Notice. The Administrative Agent shall have received a Borrowing Request as
required by Section 2.03 (or such notice shall have been deemed given in accordance with
Section 2.03) if Loans are being requested or, in the case of the issuance, amendment,
extension or renewal of a Letter of Credit, the Issuing Bank and the Administrative Agent shall
have received an LC Request as required by Section 2.17(b).




          (b) No Default. Borrower and each other Loan Party shall be in compliance in all
material respects with all the terms and provisions set forth herein and in each other Loan
Document on its part to be observed or performed, and, at the time of and immediately after giving
effect to such Credit Extension and the application of the proceeds thereof, no Default shall have
occurred and be continuing on such date.




          (c) Representations and Warranties. Each of the representations and warranties made
by any Loan Party set forth in Article III hereof or in any other Loan Document shall be
true and correct in all material respects (except that any representation and warranty that is
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects) on and as of the date of such Credit Extension with the same effect as though made on and
as of such date, except to the extent such representations and warranties expressly relate to an
earlier date.




          Each of the delivery of a Borrowing Request or an LC Request and the acceptance by Borrower of
the proceeds of such Credit Extension shall constitute a representation and warranty by Borrower
and each other Loan Party that on the date of such Credit Extension (both immediately before and
after giving effect to such Credit Extension and the application of the proceeds thereof) the
conditions contained in Sections 4.02(b)-(c) have been satisfied. Borrower shall provide
such information (including calculations in reasonable detail of the covenants in Section
6.10) as the Administrative Agent may reasonably request to confirm that the conditions in
Sections 4.02(b)-(c) have been satisfied.




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ARTICLE V




AFFIRMATIVE COVENANTS




          Each Loan Party warrants, covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document
shall have been paid in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise
consent in writing, each Loan Party will, and will cause each of its Subsidiaries to:




          SECTION 5.01 Financial Statements, Reports, etc. Furnish to the Administrative Agent
and each Lender:




          (a) Annual Reports. As soon as available and in any event within 95 days (or such
earlier date on which Borrower is required to file a Form 10-K under the Exchange Act) after the
end of each fiscal year, beginning with the fiscal year ending July 31, 2007, (i) the consolidated
balance sheet of Borrower as of the end of such fiscal year and related consolidated statements of
income, cash flows and stockholders’ equity for such fiscal year, in comparative form with such
financial statements as of the end of, and for, the preceding fiscal year, and notes thereto
(including a note with a consolidating balance sheet and statements of income and cash flows
separating out Borrower and the Subsidiaries), all prepared in accordance with Regulation S-X and
accompanied by an opinion of KPMG LLP or other independent public accountants of recognized
national standing satisfactory to the Administrative Agent in its reasonable discretion (which
opinion shall not be qualified as to scope or contain any going concern or other qualification),
stating that such financial statements fairly present, in all material respects, the consolidated
financial condition, results of operations and cash flows of Borrower as of the dates and for the
periods specified in accordance with GAAP, (ii) a management report in a form reasonably
satisfactory to the Administrative Agent setting forth (A) statement of income items and
Consolidated EBITDA of Borrower for such fiscal year, showing variance, by dollar amount and
percentage, from amounts for the previous fiscal year and budgeted amounts and (B) key operational
information and statistics for such fiscal year consistent with internal and industry-wide
reporting standards, and (iii) a management’s discussion and analysis, in a form reasonably
satisfactory to the Administrative Agent, of the financial condition and results of operations of
Borrower for such fiscal year, as compared to amounts for the previous fiscal year and budgeted
amounts (it being understood that the information required by clauses (i) and (iii) may be
furnished in the form of a Form 10-K);




          (b) Quarterly Reports. As soon as available and in any event within 50 days (or such
earlier date on which Borrower is required to file a Form 10-Q under the Exchange Act) after the
end of each of the first three fiscal quarters of each fiscal year, beginning with the fiscal
quarter ending October 31, 2007, (i) the consolidated balance sheet of Borrower as of the end of
such fiscal quarter and related consolidated statements of income and cash flows for such fiscal
quarter and for the then elapsed portion of the fiscal year, in comparative form with the
consolidated statements of income and cash flows for the comparable periods in the previous fiscal
year, and notes thereto (including a note with a consolidating balance sheet and statements of
income and cash flows separating out Borrower and the Subsidiaries), all prepared in accordance
with Regulation S-X under the Securities Act and accompanied by a certificate of a Financial
Officer stating that such financial statements fairly present, in all material respects, the
consolidated financial condition, results of operations and cash flows of Borrower as of the date
and for the periods specified in accordance with GAAP consistently applied, and on a basis
consistent with audited financial statements referred to in clause (a) of this Section, subject to
normal year-end audit adjustments,




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(ii) a management report in a form reasonably satisfactory to the Administrative Agent setting
forth (A) statement of income items and Consolidated EBITDA of Borrower for such fiscal quarter and
for the then elapsed portion of the fiscal year, showing variance, by dollar amount and percentage,
from amounts for the comparable periods in the previous fiscal year and budgeted amounts and (B)
key operational information and statistics for such fiscal quarter and for the then elapsed portion
of the fiscal year consistent with internal and industry-wide reporting standards, and (iii) a
management’s discussion and analysis, in a form reasonably satisfactory to the Administrative
Agent, of the financial condition and results of operations for such fiscal quarter and the then
elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal
year and budgeted amounts (it being understood that the information required by clauses (i) and
(iii) may be furnished in the form of a Form 10-Q);




          (c) Monthly Reports. Within 30 days after the end of each of the first two months of
each fiscal quarter, (i) the consolidated balance sheet of Borrower as of the end of each such
month and the related consolidated statements of income and cash flows of Borrower for such month
and for the then elapsed portion of the fiscal year, in comparative form with the consolidated
statements of income and cash flows for the comparable periods in the previous fiscal year,
accompanied by a certificate of a Financial Officer stating that such financial statements fairly
present, in all material respects, the consolidated results of operations and cash flows of
Borrower as of the date and for the periods specified in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and (ii) a management report in a form reasonably
satisfactory to the Administrative Agent setting forth (A) statement of income items and
Consolidated EBITDA of Borrower for such month and for the then elapsed portion of the fiscal year,
showing variance, by dollar amount and percentage, from amounts for the comparable periods in the
previous fiscal year and budgeted amounts and (B) key operational information and statistics for
such month and for the then elapsed portion of the fiscal year consistent with internal and
industry-wide reporting standards;




          (d) Financial Officer’s Certificate. (i) Concurrently with any delivery of financial
statements under Section 5.01(a) or (b), 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, (B) beginning
with the fiscal quarter ending October 31, 2007, setting forth computations in reasonable detail
satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in
Sections 6.07(e) and 6.10 (including the aggregate amount of Excluded Issuances for
such period and the uses therefor) and, concurrently with any delivery of financial statements
under Section 5.01(a) above, setting forth Borrower’s calculation of Excess Cash Flow and
(C) showing a reconciliation of Consolidated EBITDA to the net income set forth on the statement of
income; and (ii) concurrently with any delivery of financial statements under Section
5.01(a) above, beginning with the fiscal year ending July 31, 2007, a report of the accounting
firm opining on or certifying such financial statements stating that in the course of its regular
audit of the financial statements of Borrower and its Subsidiaries, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm obtained no knowledge
that any Default with respect to any financial covenant under Section 6.10 has occurred or, if in
the opinion of such accounting firm such a Default has occurred, specifying the nature and extent
thereof;




          (e) Financial Officer’s Certificate Regarding Collateral. Concurrently with any
delivery of financial statements under Section 5.01(a), a certificate of a Financial
Officer setting forth the information required pursuant to the Perfection Certificate Supplement or
confirming that there has been no change in such information since the date of the Perfection
Certificate or latest Perfection Certificate Supplement;




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          (f) Public Reports. Promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by any Company with the
Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or distributed to holders
of its Indebtedness pursuant to the terms of the documentation governing such Indebtedness (or any
trustee, agent or other representative therefor), as the case may be;




          (g) Management Letters. Promptly after the receipt thereof by any Company, a copy of
any “management letter” received by any such person from its certified public accountants and the
management’s responses thereto;




          (h) Budgets. Within 45 days after the beginning of each fiscal year, a budget for
Borrower in form reasonably satisfactory to the Administrative Agent, but to include balance
sheets, statements of income and sources and uses of cash, for (i) each month of such fiscal year
prepared in detail and (ii) each fiscal year thereafter, through and including the fiscal year in
which the Final Maturity Date occurs, prepared in summary form, in each case, with appropriate
presentation and discussion of the principal assumptions upon which such budgets are based,
accompanied by the statement of a Financial Officer of Borrower to the effect that the budget of
Borrower is a reasonable estimate for the periods covered thereby and, promptly when available, any
significant revisions of such budget;




          (i) Organization. Concurrently with any delivery of financial statements under
Section 5.01(a), an accurate organizational chart as required by Section 3.07(c),
or confirmation that there are no changes to Schedule 10(a) to the Perfection Certificate;




          (j) Organizational Documents. Promptly provide copies of any Organizational Documents
that have been amended or modified in accordance with the terms hereof and deliver a copy of any
notice of default given or received by any Company under any Organizational Document within 15 days
after such Company gives or receives such notice; and




          (k) Other Information. Promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of any Company, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.




          SECTION 5.02 Litigation and Other Notices. Furnish to the Administrative Agent and
each Lender written notice of the following promptly (and, in any event, within three Business Days
of the occurrence thereof):




          (a) any Default, specifying the nature and extent thereof and the corrective action (if any)
taken or proposed to be taken with respect thereto;




          (b) the filing or commencement of, or any threat or notice of intention of any person to file
or commence, any action, suit, litigation or proceeding, whether at law or in equity by or before
any Governmental Authority, (i) against any Company or any Affiliate thereof that could reasonably
be expected to result in a Material Adverse Effect or (ii) with respect to any Loan Document;




          (c) any development that has resulted in, or could reasonably be expected to result in a
Material Adverse Effect;




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          (d) the occurrence of a Casualty Event which could reasonably be expected to have a Material
Adverse Effect or with respect to any property the fair market value of which shall exceed
$1,000,000 as determined in good faith by the Borrower; and




          (e) (i) the incurrence of any material Lien (other than Permitted Collateral Liens) on, or
claim asserted against any of the Collateral or (ii) the occurrence of any other event which could
materially affect the value of the Collateral.




          SECTION 5.03 Existence; Businesses and Properties.




          (a) Do or cause to be done all things necessary to preserve, renew and maintain in full force
and effect its legal existence, except as otherwise expressly permitted under Section 6.05
or Section 6.06 or, in the case of any Subsidiary, where the failure to perform such
obligations, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.




          (b) Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in
full force and effect the rights, licenses, permits, privileges, franchises, authorizations,
patents, copyrights, trademarks and trade names material to the conduct of its business; maintain
and operate such business in substantially the manner in which it is presently conducted and
operated; comply with all applicable Requirements of Law (including any and all zoning, building,
Environmental Law, ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Real Property) and decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted, except where the failure to comply,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect; pay and perform its obligations under all Leases and Loan Documents; and at all times
maintain, preserve and protect all property material to the conduct of such business and keep such
property in good repair, working order and condition (other than wear and tear occurring in the
ordinary course of business) and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto necessary in order that
the business carried on in connection therewith may be properly conducted at all times; provided
that nothing in this Section 5.03(b) shall prevent (i) sales of property, consolidations or
mergers by or involving any Company in accordance with Section 6.05 or Section
6.06; (ii) the withdrawal by any Company of its qualification as a foreign corporation in any
jurisdiction where such withdrawal, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect; or (iii) the abandonment by any Company of any
rights, franchises, licenses, trademarks, trade names, copyrights or patents that such person
reasonably determines are not useful to its business or no longer commercially desirable.




          SECTION 5.04 Insurance.




          (a) Generally. Keep its insurable property adequately insured at all times by
financially sound and reputable insurers; maintain such other insurance, to such extent and against
such risks as is customary with companies in the same or similar businesses operating in the same
or similar locations, including insurance with respect to Mortgaged Properties and other properties
material to the business of the Companies against such casualties and contingencies and of such
types and in such amounts with such deductibles as is customary in the case of similar businesses
operating in the same or similar locations, including (i) physical hazard insurance on an “all
risk” basis, (ii) commercial general liability against claims for bodily injury, death or property
damage covering any and all insurable claims, (iii) explosion insurance in respect of any boilers,
machinery or similar apparatus constituting Collateral, (iv) business interruption insurance, (v)
worker’s compensation insurance and such other insurance as





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may be required by any Requirement of Law and (vi) such other insurance against risks as the
Administrative Agent may from time to time require (such policies to be in such form and amounts
and having such coverage as may be reasonably satisfactory to the Administrative Agent and the
Collateral Agent); provided that with respect to physical hazard insurance, neither the Collateral
Agent nor the applicable Company shall agree to the adjustment of any claim thereunder without the
consent of the other (such consent not to be unreasonably withheld or delayed); provided, further,
that no consent of any Company shall be required during an Event of Default.




          (b) Requirements of Insurance. All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Collateral Agent of written notice thereof,
(ii) name the Collateral Agent as mortgagee (in the case of property insurance) or additional
insured on behalf of the Secured Parties (in the case of liability insurance) or loss payee (in the
case of property insurance), as applicable, (iii) if reasonably requested by the Collateral Agent,
include a breach of warranty clause and (iv) be reasonably satisfactory in all other respects to
the Collateral Agent.




          (c) Notice to Agents. Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing in the event of loss
with that required to be maintained under this Section 5.04 is taken out by any Company;
and promptly deliver to the Administrative Agent and the Collateral Agent a duplicate original copy
of such policy or policies.




          (d) Flood Insurance. With respect to each Mortgaged Property, obtain flood insurance
in such total amount as the Administrative Agent or the Required Lenders may from time to time
require, if at any time the area in which any improvements located on any Mortgaged Property is
designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time.




          (e) Broker’s Report. Deliver to the Administrative Agent and the Collateral Agent and
the Lenders a report of a reputable insurance broker with respect to such insurance and such
supplemental reports with respect thereto as the Administrative Agent or the Collateral Agent may
from time to time reasonably request.




          (f) Mortgaged Properties. No Loan Party that is an owner of Mortgaged Property shall
take any action that is reasonably likely to be the basis for termination, revocation or denial of
any insurance coverage required to be maintained under such Loan Party’s respective Mortgage or
that could be the basis for a defense to any claim under any Insurance Policy maintained in respect
of the premises, and each Loan Party shall otherwise comply in all material respects with all
Insurance Requirements in respect of the premises; provided, however, that each Loan Party may, at
its own expense and after written notice to the Administrative Agent, (i) contest the applicability
or enforceability of any such Insurance Requirements by appropriate legal proceedings, the
prosecution of which does not constitute a basis for cancellation or revocation of any insurance
coverage required under this Section 5.04 or (ii) cause the Insurance Policy containing any
such Insurance Requirement to be replaced by a new policy complying with the provisions of this
Section 5.04.




          SECTION 5.05 Obligations and Taxes.




          (a) Payment of Obligations. Pay its Indebtedness and other obligations promptly and
in accordance with their terms and pay and discharge promptly when due all Taxes, assessments and






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governmental charges or levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all lawful claims for
labor, services, materials and supplies or otherwise that, if unpaid, might give rise to a Lien
other than a Permitted Lien upon such properties or any part thereof; provided that such payment
and discharge shall not be required with respect to any such Tax, assessment, charge, levy or claim
so long as (x)(i) the validity or amount thereof shall be contested in good faith by appropriate
proceedings timely instituted and diligently conducted and the applicable Company shall have set
aside on its books adequate reserves or other appropriate provisions with respect thereto in
accordance with GAAP, (ii) such contest operates to suspend collection of the contested obligation,
Tax, assessment or charge and enforcement of a Lien other than a Permitted Lien and (iii) in the
case of Collateral, the applicable Company shall have otherwise complied with the Contested
Collateral Lien Conditions and (y) the failure to pay could not reasonably be expected to result in
a Material Adverse Effect.




          (b) Filing of Returns. Timely and correctly file all material Tax Returns (or
extensions therefor) required to be filed by it. Withhold, collect and remit all Taxes that it is
required to collect, withhold or remit.




          (c) Tax Shelter Reporting. Borrower does not intend to treat the Loans as being a
“reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4. In the event
Borrower determines to take any action inconsistent with such intention, it will promptly notify
the Administrative Agent thereof.




          SECTION 5.06 Employee Benefits. (a) Comply in all material respects with the
applicable provisions of ERISA and the Code and (b) furnish to the Administrative Agent (x) as soon
as possible after, and in any event within 5 days after any Responsible Officer of any Company or
any ERISA Affiliates of any Company knows or has reason to know that, any ERISA Event has occurred
that, alone or together with any other ERISA Event could reasonably be expected to result in
liability of the Companies or any of their ERISA Affiliates in an aggregate amount exceeding
$500,000 or the imposition of a Lien, a statement of a Financial Officer of Borrower setting forth
details as to such ERISA Event and the action, if any, that the Companies propose to take with
respect thereto, and (y) upon request by the Administrative Agent, copies of (i) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by any Company or any ERISA
Affiliate with the Internal Revenue Service with respect to each Plan; (ii) the most recent
actuarial valuation report for each Plan; (iii) all notices received by any Company or any ERISA
Affiliate from a Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event;
and (iv) such other documents or governmental reports or filings relating to any Plan (or employee
benefit plan sponsored or contributed to by any Company) as the Administrative Agent shall
reasonably request.




          SECTION 5.07 Maintaining Records; Access to Properties and Inspections; Annual
Meetings.




          (a) Keep proper books of record and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law are made of all dealings and transactions in
relation to its business and activities. Each Company will permit any representatives designated
by the Administrative Agent or any Lender to visit and inspect the financial records and the
property of such Company at reasonable times and as often as reasonably requested and to make
extracts from and copies of such financial records, and permit any representatives designated by
the Administrative Agent or any Lender to discuss the affairs, finances, accounts and condition of
any Company with the officers and employees thereof and advisors therefor (including independent
accountants).




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          (b) Within 150 days after the end of each fiscal year of the Companies, at the request of the
Administrative Agent or Required Lenders, hold a meeting (at a mutually agreeable location, venue
and time or, at the option of the Administrative Agent, by conference call, the costs of such venue
or call to be paid by Borrower) with all Lenders who choose to attend such meeting, at which
meeting shall be reviewed the financial results of the previous fiscal year and the financial
condition of the Companies and the budgets presented for the current fiscal year of the Companies.




          SECTION 5.08 Use of Proceeds. Use the proceeds of the Loans only for the purposes set
forth in Section 3.12 and request the issuance of Letters of Credit only for the purposes
set forth in the definition of Commercial Letter of Credit or Standby Letter of Credit, as the case
may be.




          SECTION 5.09 Compliance with Environmental Laws; Environmental Reports.




          (a) Comply, and cause all lessees and other persons occupying Real Property of any Company to
comply, in all material respects with all Environmental Laws and Environmental Permits applicable
to its operations and Real Property; obtain and renew all material Environmental Permits applicable
to its operations and Real Property; and conduct all Responses required by, and in accordance with,
Environmental Laws; provided that no Company shall be required to undertake any Response to the
extent that its obligation to do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances in accordance with
GAAP.




          (b) If a Default caused by reason of a breach of Section 3.18 or Section
5.09(a) shall have occurred and be continuing for more than 20 days without the Companies
commencing activities reasonably likely to cure such Default in accordance with Environmental Laws,
at the written request of the Administrative Agent or the Required Lenders through the
Administrative Agent, provide to the Lenders within 45 days after such request, at the expense of
Borrower, an environmental assessment report regarding the matters which are the subject of such
Default, including, where appropriate, soil and/or groundwater sampling, prepared by an
environmental consulting firm and, in the form and substance, reasonably acceptable to the
Administrative Agent and indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance or Response to address them.




          SECTION 5.10 Interest Rate Protection.




          (a) No later than the 30th day after the Original Closing Date, Borrower entered into, and
shall for the period ending no earlier than three years after the Original Closing Date maintain,
Hedging Agreements with market terms and conditions and otherwise reasonably acceptable to the
Administrative Agent that result in at least 50% of the aggregate principal amount of the Original
Term Loans being effectively subject to a fixed or maximum interest rate acceptable to the
Administrative Agent.




          (b) No later than the 30th day after the Effective Date, Borrower shall enter into, and for a
period ending no earlier than three years after the Effective Date, maintain Hedging Agreements
with terms and conditions acceptable to the Administrative Agent that result in at least 50% of the
aggregate principal amount of Borrower’s Consolidated Indebtedness other than Revolving Loans being
effectively subject to a fixed or maximum interest rate acceptable to the Administrative Agent.




          SECTION 5.11 Additional Collateral; Additional Guarantors.




          (a) Subject to this Section 5.11, with respect to any property acquired after the
Original Closing Date by any Loan Party that is intended to be subject to the Lien created by any
of the





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Security Documents but is not so subject, promptly (and (x) if acquired in connection with the
netASPx Transactions, not later than the Effective Date and (y) in any other event, within 30 days
after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the
Collateral Agent such amendments or supplements to the relevant Security Documents or such other
documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to
grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a
Lien on such property subject to no Liens other than Permitted Collateral Liens, and (ii) take all
actions necessary to cause such Lien to be duly perfected to the extent required by such Security
Document in accordance with all applicable Requirements of Law, including the filing of financing
statements in such jurisdictions as may be reasonably requested by the Administrative Agent.
Borrower shall otherwise take such actions and execute and/or deliver to the Collateral Agent such
documents as the Administrative Agent or the Collateral Agent shall require to confirm the
validity, perfection and priority of the Lien of the Security Documents on such after-acquired
properties.




          (b) With respect to any person that is or becomes a Subsidiary after the Original Closing
Date, promptly (and (x) if acquired in connection with the netASPx Transactions, not later than the
Effective Date and (y) in any other event, within 30 days after such person becomes a Subsidiary)
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity
Interests of such Subsidiary, together with undated stock powers or other appropriate instruments
of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such
Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together
with instruments of transfer executed and delivered in blank by a duly authorized officer of such
Loan Party and (ii) cause such new Subsidiary (A) to execute a Joinder Agreement or such comparable
documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Security
Agreement, substantially in the form annexed thereto or, in the case of a Foreign Subsidiary,
execute a security agreement compatible with the laws of such Foreign Subsidiary’s jurisdiction in
form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions
necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause
the Lien created by the applicable Security Agreement to be duly perfected to the extent required
by such agreement in accordance with all applicable Requirements of Law, including the filing of
financing statements in such jurisdictions as may be reasonably requested by the Administrative
Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to
be delivered to the Collateral Agent pursuant to clause (i) of this Section 5.11(b) shall
not include any Equity Interests of a Foreign Subsidiary created or acquired after the Original
Closing Date and (2) no Foreign Subsidiary shall be required to take the actions specified in
clause (ii) of this Section 5.11(b), if, in the case of either clause (1) or (2), doing so
would constitute an investment of earnings in United States property under Section 956 (or a
successor provision) of the Code, which investment would or could reasonably be expected to trigger
a material increase in the net income of a United States shareholder of such Subsidiary pursuant to
Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative
Agent; provided that this exception shall not apply to (A) Voting Stock of any Subsidiary which is
a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing
66% of the total voting power of all outstanding Voting Stock of such Subsidiary and (B) 100% of
the Equity Interests not constituting Voting Stock of any such Subsidiary, except that any such
Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation
Section 1.956-2(c)(2) shall be treated as Voting Stock for purposes of this Section
5.11(b).




          (c) Promptly grant to the Collateral Agent, within 30 days of the acquisition thereof, a
security interest in and Mortgage on (i) each Real Property owned in fee by such Loan Party as is
acquired by such Loan Party after the Original Closing Date and that, together with any
improvements thereon, individually has a fair market value of at least $250,000, and (ii) other
than in the case of any





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leased Real Property acquired at the time of consummation of the netASPx Transactions, and
otherwise unless the Administrative Agent waives such requirement, each leased Real Property of
such Loan Party which lease individually has a fair market value of at least $250,000, in each
case, as additional security for the Secured Obligations (unless the subject property is already
mortgaged to a third party to the extent permitted by Section 6.02). Such Mortgages shall
be granted pursuant to documentation reasonably satisfactory in form and substance to the
Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected
Liens subject only to Permitted Collateral Liens or other Liens acceptable to the Collateral Agent.
The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in
such places as are required by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and
other charges payable in connection therewith shall be paid in full. Such Loan Party shall
otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as
the Administrative Agent or the Collateral Agent shall require to confirm the validity, perfection
and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real
Property (including a Title Policy, a Survey and local counsel opinion (in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such
Mortgage).




          (d) Borrower may designate any Subsidiary acquired or formed after the Original Closing Date
as a Non-Guarantor Subsidiary by written notice to the Administrative Agent; provided, however,
that if at any time any Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the
aggregate (other than any Foreign Subsidiary that is not required to take the actions specified in
Section 5.11(b)(ii) by operation of the last sentence of Section 5.11(b)) not
otherwise subject to Section 5.11(b) has assets with either a book value or fair market
value in excess of $250,000, then Borrower shall, and shall cause one or more of such Subsidiaries
to, comply with Section 5.11(b) within the time frames set forth therein so that no
Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the aggregate holds property
having either a book value or fair market value in excess of $250,000.




          SECTION 5.12 Security Interests; Further Assurances. Promptly, upon the reasonable
request of the Administrative Agent, the Collateral Agent or any Lender, at Borrower’s expense,
execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and
thereafter register, file or record, or cause to be registered, filed or recorded, in an
appropriate governmental office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by the Administrative Agent or the Collateral Agent
reasonably necessary or desirable for the continued validity, perfection and priority of the Liens
on the Collateral covered thereby subject to no other Liens except Permitted Collateral Liens, or
obtain any consents or waivers as may be necessary or appropriate in connection therewith. Deliver
or cause to be delivered to the Administrative Agent and the Collateral Agent from time to time
such other documentation, consents, authorizations, approvals and orders in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent as the Administrative
Agent and the Collateral Agent shall reasonably deem necessary to perfect or maintain the Liens on
the Collateral pursuant to the Security Documents. Upon the exercise by the Administrative Agent,
the Collateral Agent or any Lender of any power, right, privilege or remedy pursuant to any Loan
Document which requires any consent, approval, registration, qualification or authorization of any
Governmental Authority execute and deliver all applications, certifications, instruments and other
documents and papers that the Administrative Agent, the Collateral Agent or such Lender may
require. If the Administrative Agent, the Collateral Agent or the Required Lenders determine that
they are required by a Requirement of Law to have appraisals prepared in respect of the Real
Property of any Loan Party constituting Collateral, Borrower shall provide to the Administrative
Agent appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform
Amendments of FIRREA and are otherwise in form and substance satisfactory to the Administrative
Agent and the Collateral Agent.




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          SECTION 5.13 Information Regarding Collateral.




          (a) Not effect any change (i) in any Loan Party’s legal name, (ii) in the location of any Loan
Party’s chief executive office, (iii) in any Loan Party’s identity or organizational structure,
(iv) in any Loan Party’s Federal Taxpayer Identification Number or organizational identification
number, if any, or (v) in any Loan Party’s jurisdiction of organization (in each case, including by
merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or
organizing in any other jurisdiction), until (A) it shall have given the Collateral Agent and the
Administrative Agent not less than 30 days’ prior written notice (in the form of an Officers’
Certificate), or such lesser notice period agreed to by the Collateral Agent, of its intention so
to do, clearly describing such change and providing such other information in connection therewith
as the Collateral Agent or the Administrative Agent may reasonably request and (B) it shall have
taken all action reasonably satisfactory to the Collateral Agent to maintain the perfection and
priority of the security interest of the Collateral Agent for the benefit of the Secured Parties in
the Collateral, if applicable. Each Loan Party agrees to promptly provide the Collateral Agent
with certified Organizational Documents reflecting any of the changes described in the preceding
sentence. Each Loan Party also agrees to promptly notify the Collateral Agent of any change in the
location of any office in which it maintains books or records relating to Collateral owned by it or
any office or facility at which Collateral is located (including the establishment of any such new
office or facility), other than changes in location to a Mortgaged Property or a leased property
subject to a Landlord Access Agreement.




          (b) Concurrently with the delivery of financial statements pursuant to Section
5.01(a), deliver to the Administrative Agent and the Collateral Agent a Perfection Certificate
Supplement and a certificate of a Financial Officer and the chief legal officer of Borrower
certifying that all UCC financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction necessary to protect and
perfect the security interests and Liens under the Security Documents for a period of not less than
18 months after the date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period).




          SECTION 5.14 Affirmative Covenants with Respect to Leases. With respect to each
Lease, the respective Loan Party shall perform all the obligations imposed upon it by the landlord
under such Lease and enforce all of the tenant’s obligations thereunder, except where the failure
to so perform or enforce could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.15 Post-Closing Matters.




          (a) Each Loan Party shall use its commercially reasonable effort to cause to be executed and
delivered to the Administrative Agent for the benefit of the Lenders, Landlord Access Agreements
for each of the locations set forth in Schedule 4.01(k)(vi) duly executed by the applicable
landlord; and




          (b) Within thirty (30) calendar days following the Effective Date (as such period may be
extended from time to time in the discretion of the Administrative Agent), evidence reasonably
satisfactory to the Administrative Agent evidencing the termination and release of the recorded
security interests or the satisfaction of all obligations of each Company relating to Indebtedness
incurred in connection with the acquisition of AppliedTheory which Indebtedness has been repaid
prior to the Original Closing Date.




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ARTICLE VI




NEGATIVE COVENANTS




          Each Loan Party warrants, covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been canceled or have expired and
all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, no Loan Party will, nor will they cause or permit any Subsidiaries
to:




          SECTION 6.01 Indebtedness. Incur, create, assume or permit to exist, directly or
indirectly, any Indebtedness, except




          (a) Indebtedness incurred under this Agreement and the other Loan Documents;




          (b) (i) Indebtedness outstanding on the Original Closing Date and listed on Schedule
6.01(b), (ii) refinancings or renewals thereof; provided that (A) any such refinancing
Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of
the Indebtedness being renewed or refinanced, plus the amount of any premiums required to be paid
thereon and reasonable fees and expenses associated therewith, (B) such refinancing Indebtedness
has a later or equal final maturity and longer or equal weighted average life than the Indebtedness
being renewed or refinanced and (C) the covenants, events of default, subordination and other
provisions thereof (including any guarantees thereof) shall be, in the aggregate, no less favorable
to the Lenders than those contained in the Indebtedness being renewed or refinanced;




          (c) Indebtedness under Hedging Obligations with respect to interest rates, foreign currency
exchange rates or commodity prices, in each case not entered into for speculative purposes;
provided that if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations
relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan
Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred
does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;




          (d) Indebtedness permitted by Section 6.04(f);




          (e) Indebtedness (i) in respect of Purchase Money Obligations and Capital Lease Obligations,
and refinancings or renewals thereof, in an aggregate amount not to exceed $8.0 million at any time
outstanding and (ii) of one or more Foreign Subsidiaries incorporated in the United Kingdom not to
exceed $10,000,000 in the aggregate over the term of this Agreement, less the amount of the
repayments thereof, the proceeds of which are used to fund the buildout and/or improvements to a
data center in the United Kingdom (“Permitted UK Datasite Buildout Indebtedness”);




          (f) Indebtedness in respect of bid, performance or surety bonds, workers’ compensation claims,
self-insurance obligations and bankers acceptances issued for the account of any Company in the
ordinary course of business, including guarantees or obligations of any Company with respect to
letters of credit supporting such bid, performance or surety bonds, workers’ compensation claims,
self-insurance obligations and bankers acceptances (in each case other than for an obligation for
money borrowed), in the ordinary course of business;




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          (g) Contingent Obligations of any Loan Party in respect of Indebtedness otherwise permitted
under this Section 6.01;




          (h) Indebtedness arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within five Business Days of incurrence;




          (i) Indebtedness arising in connection with endorsement of instruments for deposit in the
ordinary course of business;




          (j) unsecured Indebtedness of any Company in an aggregate amount not to exceed $1.0 million at
any time outstanding; and




          (k) Permitted Subordinated Indebtedness.




          SECTION 6.02 Liens. Create, incur, assume or permit to exist, directly or indirectly,
any Lien on any property owned as of the Original Closing Date or thereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except the following (collectively, the
“Permitted Liens”):




          (a) inchoate Liens for taxes, assessments or governmental charges or levies not yet due and
payable or delinquent and Liens for taxes, assessments or governmental charges or levies, which (i)
are being contested in good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP, which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of the property subject to any
such Lien, and (ii) in the case of any such charge or claim which has or may become a Lien against
any of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral
Lien Conditions;




          (b) Liens in respect of property of any Company imposed by Requirements of Law, which were
incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such
as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and
mechanics’ Liens and other similar Liens arising in the ordinary course of business, and (i) which
do not in the aggregate materially detract from the value of the property of the Companies, taken
as a whole, and do not materially impair the use thereof in the operation of the business of the
Companies, taken as a whole, (ii) which, if they secure obligations that are then due and unpaid,
are being contested in good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP, which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of the property subject to any
such Lien, and (iii) in the case of any such Lien which has or may become a Lien against any of the
Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien
Conditions;




          (c) any Lien in existence on the Original Closing Date and set forth on Schedule
6.02(c) and any Lien granted as a replacement or substitute therefor; provided that any such
replacement or substitute Lien (i) except as permitted by Section 6.01(b)(ii)(A), does not
secure an aggregate amount of Indebtedness, if any, greater than that secured on the Original
Closing Date and (ii) does not encumber any property other than the property subject thereto on the
Original Closing Date (any such Lien, an “Existing Lien”);




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          (d) easements, rights-of-way, restrictions (including zoning restrictions), covenants,
licenses, encroachments, protrusions and other similar charges or encumbrances, and minor title
deficiencies on or with respect to any Real Property, in each case whether now or hereafter in
existence, not (i) securing Indebtedness, (ii) individually or in the aggregate materially
impairing the value or marketability of such Real Property or (iii) individually or in the
aggregate materially interfering with the ordinary conduct of the business of the Companies at such
Real Property;




          (e) Liens arising out of judgments, attachments or awards not resulting in a Default and in
respect of which such Company shall in good faith be prosecuting an appeal or proceedings for
review in respect of which there shall be secured a subsisting stay of execution pending such
appeal or proceedings and, in the case of any such Lien which has or may become a Lien against any
of the Collateral, such Lien and the contest thereof shall satisfy the Contested Collateral Lien
Conditions;




          (f) Liens (other than any Lien imposed by ERISA) (x) imposed by Requirements of Law or
deposits made in connection therewith in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social security legislation, (y)
incurred in the ordinary course of business to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds,
bids, leases, government contracts, trade contracts, performance and return of money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed money) or (z)
arising by virtue of deposits made in the ordinary course of business to secure liability for
premiums to insurance carriers; provided that (i) with respect to clauses (x), (y) and (z) of this
paragraph (f), such Liens are for amounts not yet due and payable or delinquent or, to the extent
such amounts are so due and payable, such amounts are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance with GAAP, which
proceedings for orders entered in connection with such proceedings have the effect of preventing
the forfeiture or sale of the property subject to any such Lien, (ii) to the extent such Liens are
not imposed by Requirements of Law, such Liens shall in no event encumber any property other than
cash and Cash Equivalents, (iii) in the case of any such Lien against any of the Collateral, such
Lien and the contest thereof shall satisfy the Contested Collateral Lien Conditions and (iv) the
aggregate amount of deposits at any time pursuant to clause (y) and clause (z) of this paragraph
(f) shall not exceed $250,000 in the aggregate;




          (g) Leases of the properties of any Company granted by such Company to third parties, in each
case entered into in the ordinary course of such Company’s business so long as such Leases are
subordinate in all respects to the Liens granted and evidenced by the Security Documents and do
not, individually or in the aggregate, (i) interfere in any material respect with the ordinary
conduct of the business of any Company or (ii) materially impair the use (for its intended
purposes) or the value of the property subject thereto;




          (h) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by any Company in the ordinary course of business
in accordance with the past practices of such Company;




          (i) Liens securing Indebtedness incurred pursuant to Section 6.01(e); provided that
any such Liens attach only to the property being financed pursuant to such Indebtedness and do not
encumber any other property of any Company;




          (j) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more accounts maintained by any Company, in





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each case granted in the ordinary course of business in favor of the bank or banks with which
such accounts are maintained, securing amounts owing to such bank with respect to cash management
and operating account arrangements, including those involving pooled accounts and netting
arrangements; provided that, unless such Liens are non-consensual and arise by operation of law, in
no case shall any such Liens secure (either directly or indirectly) the repayment of any
Indebtedness;




          (k) Liens on property of a person existing at the time such person is acquired or merged with
or into or consolidated with any Company to the extent permitted hereunder (and not created in
anticipation or contemplation thereof); provided that such Liens do not extend to property not
subject to such Liens at the time of acquisition (other than improvements thereon) and are no more
favorable to the lienholders than such existing Lien;




          (l) Liens granted pursuant to the Security Documents to secure the Secured Obligations;




          (m) licenses of Intellectual Property granted by any Company in the ordinary course of
business and not interfering in any material respect with the ordinary conduct of business of the
Companies;




          (n) the filing of UCC financing statements solely as a precautionary measure in connection
with operating leases or consignment of goods;




          (o) Liens incurred in the ordinary course of business of any Company with respect to
obligations that do not in the aggregate exceed $500,000 at any time outstanding, so long as such
Liens, to the extent covering any Collateral, are junior to the Liens granted pursuant to the
Security Documents;



provided, however, that no consensual Liens shall be permitted to exist, directly or indirectly, on
any Securities Collateral, other than Liens granted pursuant to the Security Documents.




          SECTION 6.03 Sale and Leaseback Transactions. Enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether owned as of the Original Closing Date or thereafter acquired,
and thereafter rent or lease such property or other property which it intends to use for
substantially the same purpose or purposes as the property being sold or transferred (a “Sale and
Leaseback Transaction”) unless (i) the sale of such property is permitted by Section 6.06
and (ii) any Liens arising in connection with its use of such property are permitted by Section
6.02.




          SECTION 6.04 Investment, Loan and Advances. Directly or indirectly, lend money or
credit (by way of guarantee or otherwise) or make advances to any person, or purchase or acquire
any stock, bonds, notes, debentures or other obligations or securities of, or any other interest
in, or make any capital contribution to, any other person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other commodities at a future date
in the nature of a futures contract (all of the foregoing, collectively, “Investments”), except
that the following shall be permitted:




          (a) the Companies may consummate the Current Transactions in accordance with the provisions of
the Loan Documents;




          (b) Investments outstanding on the Original Closing Date and identified on Schedule
6.04(b);




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          (c) the Companies may (i) acquire and hold accounts receivables owing to any of them if
created or acquired in the ordinary course of business and payable or dischargeable in accordance
with customary terms, (ii) invest in, acquire and hold cash and Cash Equivalents, (iii) endorse
negotiable instruments held for collection in the ordinary course of business or (iv) make lease,
utility and other similar deposits in the ordinary course of business;




          (d) Hedging Obligations incurred pursuant to Section 6.01(c);




          (e) loans and advances to directors, employees and officers of Borrower and the Subsidiaries
for bona fide business purposes and to purchase Equity Interests of Borrower, in an aggregate
amount not to exceed $250,000 at any time outstanding; provided that no loans in violation of
Section 402 of the Sarbanes-Oxley Act shall be permitted hereunder;




          (f) Investments (i) by Borrower in any Subsidiary Guarantor, (ii) by any Company in Borrower
or any Subsidiary Guarantor, (iii) by a Subsidiary Guarantor in another Subsidiary Guarantor and
(iv) by a Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a
Subsidiary Guarantor; provided that any Investment in the form of a loan or advance shall be
evidenced by the Intercompany Note and, in the case of a loan or advance by a Loan Party, pledged
by such Loan Party as Collateral pursuant to the Security Documents;




          (g) Investments in securities of trade creditors or customers in the ordinary course of
business received upon foreclosure or pursuant to any plan of reorganization or liquidation or
similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;




          (h) Investments made by Borrower or any Subsidiary as a result of consideration received in
connection with an Asset Sale made in compliance with Section 6.06; and




          (i) other Investments in an aggregate amount not to exceed $500,000 at any time outstanding.



An Investment shall be deemed to be outstanding to the extent not returned in the same form as the
original Investment to Borrower or any Subsidiary Guarantor.




          SECTION 6.05 Mergers and Consolidations. Wind up, liquidate or dissolve its affairs
or enter into any transaction of merger or consolidation (or agree to do any of the foregoing at
any future time), except that the following shall be permitted:





     (a) Asset Sales in compliance with Section 6.06;




     (b) acquisitions in compliance with Section 6.07;




     (c) any Company may merge or consolidate with or into Borrower or any Subsidiary
Guarantor (as long as Borrower is the surviving person in the case of any merger or
consolidation involving Borrower and a Subsidiary Guarantor is the surviving person and
remains a Wholly Owned Subsidiary of Borrower in any other case); provided that the Lien on
and security interest in such property granted or to be granted in favor of the Collateral
Agent under the Security Documents shall be maintained or created in accordance with the
provisions of Section 5.11 or Section 5.12, as applicable;



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     (d) any Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided
that such dissolution, liquidation or winding up, as applicable, could not reasonably be
expected to have a Material Adverse Effect; and




     (e) (i) the Original Transactions as contemplated by the Original Transaction Documents
and (ii) the netASPx Transactions as contemplated by the netASPx Transaction Documents.



          To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of
this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 6.05, such Collateral (unless sold to a Company) shall be sold
free and clear of the Liens created by the Security Documents, and, so long as Borrower shall have
provided the Agents such certifications or documents as any Agent shall reasonably request in order
to demonstrate compliance with this Section 6.05, the Agents shall take all actions they
deem appropriate in order to effect the foregoing.




          SECTION 6.06 Asset Sales. Effect any Asset Sale, or agree to effect any Asset Sale,
except that the following shall be permitted:





     (a) disposition of used, worn out, obsolete or surplus property by any Company in the
ordinary course of business and the abandonment or other disposition of Intellectual
Property that is, in the reasonable judgment of Borrower, no longer economically practicable
to maintain or useful in the conduct of the business of the Companies taken as a whole;




     (b) Asset Sales; provided that the aggregate consideration received in respect of all
Asset Sales pursuant to this clause (b) shall not exceed $5,000,000;




     (c) leases of real or personal property in the ordinary course of business and in
accordance with the applicable Security Documents;




     (d) mergers and consolidations in compliance with Section 6.05; and




     (e) Investments in compliance with Section 6.04.



          To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of
this Section 6.06 with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 6.06, such Collateral (unless sold to a Company) shall be sold
free and clear of the Liens created by the Security Documents, and, so long as Borrower shall have
provided the Agents such certifications or documents as any Agent shall reasonably request in order
to demonstrate compliance with this Section 6.06, the Agents shall take all actions they
deem appropriate in order to effect the foregoing.




          SECTION 6.07 Acquisitions. Purchase or otherwise acquire (in one or a series of
related transactions) any part of the property (whether tangible or intangible) of any person (or
agree to do any of the foregoing at any future time), except that the following shall be permitted:





     (a) Capital Expenditures by Borrower and the Subsidiaries shall be permitted to the
extent permitted by Section 6.10(c);




     (b) purchases and other acquisitions of inventory, materials, equipment and intangible
property in the ordinary course of business;



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     (c) Investments in compliance with Section 6.04;




     (d) leases of real or personal property in the ordinary course of business and in
accordance with the applicable Security Documents;




     (e) Permitted Acquisitions including, without limitation, the netASPx Acquisition shall
be consummated on terms satisfactory to the Administrative Agent; and




     (f) mergers and consolidations in compliance with Section 6.05;


provided that the Lien on and security interest in such property granted or to be granted in favor
of the Collateral Agent under the Security Documents shall be maintained or created in accordance
with the provisions of Section 5.11 or Section 5.12, as applicable.




          SECTION 6.08 Dividends. Authorize, declare or pay, directly or indirectly, any
Dividends with respect to any Company, except that the following shall be permitted:





     (a) Dividends by any Company to Borrower or any Guarantor that is a Wholly Owned
Subsidiary of Borrower;




     (b) payments to Borrower to permit Borrower, and the subsequent use of such payments by
Borrower, to repurchase or redeem Qualified Capital Stock of Borrower held by officers,
directors or employees or former officers, directors or employees (or their transferees,
estates or beneficiaries under their estates) of any Company, upon their death, disability,
retirement, severance or termination of employment or service; provided that the aggregate
cash consideration paid for all such redemptions and payments shall not exceed, in any
fiscal year, $1,000,000; and




     (c) the redemption or other repayment by Borrower of the netASPx Seller Convertible
Preferred Stock in accordance with the terms thereof as in effect on the Effective Date with
the Net Cash Proceeds from (i) the issuance of Permitted Subordinated Indebtedness and/or
(ii) the issuance of common stock of Borrower, provided that (x)(I) no Default then exists
or would result therefrom; and (II) after giving effect to such redemption or other
repayment on a Pro Forma Basis, (A) Borrower shall be in compliance with all covenants set
forth in Sections 6.10(a) and (b) as of the most recent Test Period
(assuming (x) for purposes of Section 6.10, that such transaction had occurred on
the first day of such relevant Test Period) and (y) in the case of any redemption or other
repayment with the Net Cash Proceeds of Permitted Subordinated Indebtedness, concurrently
with such redemption or other repayment, Borrower shall prepay pursuant to Section
2.10(a) outstanding Loans in an aggregate principal amount equal to the Net Cash
Proceeds applied to redeem or otherwise repay netASPx Seller Convertible Preferred Stock;
and




     (d) the payment of dividends on the netASPx Seller Convertible Preferred Stock in kind
(and not in cash) in accordance with the terms thereof as in effect on the Effective Date.



          SECTION 6.09 Transactions with Affiliates. Enter into, directly or indirectly, any
transaction or series of related transactions, whether or not in the ordinary course of business,
with any Affiliate of any Company (other than between or among Borrower and one or more Subsidiary
Guarantors), other than on terms and conditions at least as favorable to such Company as would
reasonably be obtained by such Company at that time in a comparable arm’s-length transaction with a
person other than an Affiliate, except that the following shall be permitted:




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     (a) Dividends permitted by Section 6.08;




     (b) Investments permitted by Sections 6.04(e) and (f)(i) and (iii);




     (c) reasonable and customary director, officer and employee compensation (including
bonuses) and other benefits (including retirement, health, stock option and other benefit
plans) and indemnification arrangements, in each case approved by the Board of Directors of
Borrower;




     (d) transactions with customers, clients, suppliers, joint venture partners or
purchasers or sellers of goods and services, in each case in the ordinary course of business
and otherwise not prohibited by the Loan Documents;




     (e) the existence of, and the performance by any Loan Party of its obligations under
the terms of, any limited liability company, limited partnership or other Organizational
Document or securityholders agreement (including any registration rights agreement or
purchase agreement related thereto) to which it is a party on the Original Closing Date and
which has been disclosed to the Lenders as in effect on the Original Closing Date, and
similar agreements that it may enter into thereafter; provided, however, that the existence
of, or the performance by any Loan Party of obligations under, any amendment to any such
existing agreement or any such similar agreement entered into after the Original Closing
Date shall only be permitted by this Section 6.09(e) to the extent not more adverse
to the interest of the Lenders in any material respect, when taken as a whole, than any of
such documents and agreements as in effect on the Original Closing Date;




     (f) sales of Qualified Capital Stock of Borrower to Affiliates of Borrower not
otherwise prohibited by the Loan Documents and the granting of registration and other
customary rights in connection therewith; and




     (g) any transaction with an Affiliate where the only consideration paid by any Loan
Party is Qualified Capital Stock of Borrower.



          SECTION 6.10 Financial Covenants.




          (a) Maximum Total Leverage Ratio. Permit the Total Leverage Ratio, as of the last day
of any Test Period in effect during any period in the table below, to exceed the ratio set forth
opposite such period in the table below:




	 	 	 
	Test Period	 	Leverage Ratio
	July 31, 2007

	 	4.50 to 1.0
	October 31, 2007

	 	4.50 to 1.0
	January 31, 2008

	 	4.25 to 1.0
	April 30, 2008

	 	4.00 to 1.0
	July 31, 2008

	 	3.75 to 1.0
	October 31, 2008

	 	3.50 to 1.0
	January 31, 2009

	 	3.50 to 1.0






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	Test Period	 	Leverage Ratio
	April 30, 2009

	 	3.50 to 1.0
	July 31, 2009

	 	3.50 to 1.0
	October 31, 2009

	 	3.00 to 1.0
	January 31, 2010

	 	3.00 to 1.0
	April 30, 2010

	 	3.00 to 1.0
	July 31, 2010

	 	3.00 to 1.0
	October 31, 2010

	 	2.50 to 1.0
	January 31, 2011

	 	2.50 to 1.0
	April 30, 2011

	 	2.50 to 1.0
	July 31, 2011

	 	2.50 to 1.0
	October 31, 2011

	 	2.50 to 1.0
	January 31, 2012

	 	2.50 to 1.0
	April 30, 2012

	 	2.50 to 1.0
	July 31, 2012

	 	2.50 to 1.0
	October 31, 2012

	 	2.50 to 1.0
	January 31, 2013

	 	2.50 to 1.0
	April 30, 2013 and the last day of each fiscal quarter
thereafter

	 	2.50 to 1.0






          (b) Minimum Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio, for any Test Period in effect during any period in the table set forth below, to be
less than the ratio set forth opposite such period in the table below:




	 	 	 
	 	 	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

	 	1.30 to 1.0
	October 31, 2008

	 	2.00 to 1.0
	January 31, 2009

	 	2.00 to 1.0
	April 30, 2009

	 	2.00 to 1.0
	July 31, 2009

	 	2.00 to 1.0






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	 	 	Fixed Charge
	Test Period	 	Coverage Ratio
	October 31, 2009

	 	3.00 to 1.0
	January 31, 2010

	 	3.00 to 1.0
	April 30, 2010

	 	3.00 to 1.0
	July 31, 2010

	 	3.00 to 1.0
	October 31, 2010

	 	3.50 to 1.0
	January 31, 2011

	 	3.50 to 1.0
	April 30, 2011

	 	3.50 to 1.0
	July 31, 2011

	 	3.50 to 1.0
	October 31, 2011

	 	3.50 to 1.0
	January 31, 2012

	 	3.50 to 1.0
	April 30, 2012

	 	3.50 to 1.0
	July 31, 2012

	 	3.50 to 1.0
	October 31, 2012

	 	3.50 to 1.0
	January 31, 2013

	 	3.50 to 1.0
	April 30, 2013 and the last day of each fiscal quarter
thereafter

	 	3.50 to 1.0






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




	 	 	 	 	 
	Period	 	Amount
	Fiscal year ending July 31, 2007

	 	$	10,800,000	 
	Fiscal year ending July 31, 2008

	 	$	13,700,000	 
	Fiscal year ending July 31, 2009

	 	$	16,000,000	 
	Fiscal year ending July 31, 2010

	 	$	15,700,000	 
	Fiscal year ending July 31, 2011

	 	$	13,500,000	 
	Fiscal year ending July 31, 2012 and each fiscal year
thereafter

	 	$	14,300,000	 





provided, however, that (x) if the aggregate amount of Capital Expenditures made in any fiscal year
shall be less than the maximum amount of Capital Expenditures permitted under this Section
6.10(c) 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 Capital Expenditures permitted under this Section 6.10(c) for the
immediately succeeding (but not any other)




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fiscal year, (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) and (z) the amount set forth in the table above for any period (i)
may be increased by the amount of Net Cash Proceeds of Excluded Issuances designated for Capital
Expenditures for such period during such period and (ii) shall be exclusive of any Capital
Expenditures to the extent made with Permitted UK Datasite Buildout Indebtedness.




          SECTION 6.11 Prepayments of Other Indebtedness; Modifications of Organizational Documents
and Other Documents, etc. Directly or indirectly:





     (a) make any payment or prepayment of principal of, premium, if any, or interest on, or
redemption, purchase, retirement or defeasance (including in substance or legal defeasance),
sinking fund or similar payment with respect to Subordinated Indebtedness; provided that
Borrower may make regularly scheduled payments of interest on Permitted Subordinated
Indebtedness at the non-default rate of interest applicable to such Permitted Subordinated
Indebtedness;




     (b) amend or modify, or permit the amendment or modification of, any provision of any
Material Agreement in any manner that is adverse in any material respect to the interests of
the Lenders; or




     (c) terminate, amend or modify any of its Organizational Documents (including (x) by
the filing or modification of any certificate of designation and (y) any election to treat
any Pledged Securities (as defined in the Security Agreement) as a “security” under Section
8-103 of the UCC other than concurrently with the delivery of certificates representing such
Pledged Securities to the Collateral Agent) or any agreement to which it is a party with
respect to its Equity Interests (including any stockholders’ agreement), or enter into any
new agreement with respect to its Equity Interests, other than any such amendments or
modifications or such new agreements which are not adverse in any material respect to the
interests of the Lenders; provided that Borrower may issue such Equity Interests, so long as
such issuance is not prohibited by Section 6.13 or any other provision of this
Agreement, and may amend or modify its Organizational Documents to authorize any such Equity
Interests.



          SECTION 6.12 Limitation on Certain Restrictions on Subsidiaries. Directly or
indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary to (a) pay dividends or make any other distributions
on its capital stock or any other interest or participation in its profits owned by Borrower or any
Subsidiary, or pay any Indebtedness owed to Borrower or a Subsidiary, (b) make loans or advances to
Borrower or any Subsidiary or (c) transfer any of its properties to Borrower or any Subsidiary,
except for such encumbrances or restrictions existing under or by reason of (i) applicable
Requirements of Law; (ii) this Agreement and the other Loan Documents; (iii) the Loan Documents;
(iv) customary provisions restricting subletting or assignment of any lease governing a leasehold
interest of a Subsidiary; (v) customary provisions restricting assignment of any agreement entered
into by a Subsidiary in the ordinary course of business; (vi) any holder of a Lien permitted by
Section 6.02 restricting the transfer of the property subject thereto; (vii) customary
restrictions and conditions contained in any agreement relating to the sale of any property
permitted under Section 6.06 pending the consummation of such sale; (viii) any agreement in
effect at the time such Subsidiary becomes a Subsidiary of Borrower, so long as such agreement was
not entered into in connection with or in contemplation of such person becoming a Subsidiary of
Borrower; (ix) without affecting the Loan Parties’ obligations under Section 5.11,
customary provisions in partnership agreements, limited liability company organizational governance
documents, asset sale and stock sale agreements and other




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similar agreements entered into in the ordinary course of business that restrict the transfer
of ownership interests in such partnership, limited liability company or similar person; (x)
restrictions on cash or other deposits or net worth imposed by suppliers or landlords under
contracts entered into in the ordinary course of business; (xi) any instrument governing
Indebtedness assumed in connection with any Permitted Acquisition, which encumbrance or restriction
is not applicable to any person, or the properties or assets of any person, other than the person
or the properties or assets of the person so acquired; (xii) in the case of any joint venture which
is not a Loan Party in respect of any matters referred to in clauses (b) and (c) above,
restrictions in such person’s Organizational Documents or pursuant to any joint venture agreement
or stockholders agreements solely to the extent of the Equity Interests of or property held in the
subject joint venture or other entity; or (xiii) any encumbrances or restrictions imposed by any
amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts,
instruments or obligations referred to in clauses (iii) or (viii) above; provided that such
amendments or refinancings are no more materially restrictive with respect to such encumbrances and
restrictions than those prior to such amendment or refinancing.




          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; (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(b) 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.




          SECTION 6.14 Limitation on Creation of Subsidiaries. Establish, create or acquire any
additional Subsidiaries without the prior written consent of the Required Lenders; provided that,
without such consent, Borrower may (i) establish or create one or more Wholly Owned Subsidiaries of
Borrower, (ii) establish, create or acquire one or more Subsidiaries in connection with an
Investment made pursuant to Section 6.04 or (iii) acquire one or more Subsidiaries in
connection with a Permitted Acquisition including, without limitation, the netASPx Acquisition, so
long as, in each case, Section 5.11(b) shall be complied with.




          SECTION 6.15 Business. Engage (directly or indirectly) in any business other than
those businesses in which Borrower and its Subsidiaries are engaged on the Original Closing Date as
described in the Confidential Information Memorandum (or, in the good faith judgment of the Board
of Directors, which are substantially related thereto or are reasonable extensions thereof).




          SECTION 6.16 Limitation on Accounting Changes. Make or permit any change in
accounting policies or reporting practices, without the consent of the Required Lenders, which
consent shall not be unreasonably withheld, except changes that are required by GAAP.




          SECTION 6.17 Fiscal Year. Change its fiscal year-end to a date other than July 31.




          SECTION 6.18 Lease Obligations. Create, incur, assume or suffer to exist any
obligations as lessee for the rental or hire of real or personal property of any kind under leases
or agreements
to lease having an original term of one year or more that would cause the direct and
contingent





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liabilities of Borrower and its Subsidiaries, on a consolidated basis, in respect of all
such obligations to exceed $10.0 million payable in any period of 12 consecutive months.




          SECTION 6.19 No Further Negative Pledge. Enter into any agreement, instrument, deed
or lease which prohibits or limits the ability of any Loan Party to create, incur, assume or suffer
to exist any Lien upon any of their respective properties or revenues, whether owned as of the
Original Closing Date or thereafter acquired, or which requires the grant of any security for an
obligation if security is granted for another obligation, except the following: (1) this Agreement
and the other Loan Documents; (2) covenants in documents creating Liens permitted by Section
6.02 prohibiting further Liens on the properties encumbered thereby; (3) any other agreement
that does not restrict in any manner (directly or indirectly) Liens created pursuant to the Loan
Documents on any Collateral securing the Secured Obligations and does not require the direct or
indirect granting of any Lien securing any Indebtedness or other obligation by virtue of the
granting of Liens on or pledge of property of any Loan Party to secure the Secured Obligations; and
(4) any prohibition or limitation that (a) exists pursuant to applicable Requirements of Law, (b)
consists of customary restrictions and conditions contained in any agreement relating to the sale
of any property permitted under Section 6.06 pending the consummation of such sale, (c)
restricts subletting or assignment of leasehold interests contained in any Lease governing a
leasehold interest of Borrower or a Subsidiary, (d) exists in any agreement in effect at the time
such Subsidiary becomes a Subsidiary of Borrower, so long as such agreement was not entered into in
contemplation of such person becoming a Subsidiary or (e) is imposed by any amendments or
refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or
obligations referred to in clause (3) or (5)(d); provided that such amendments and refinancings are
no more materially restrictive with respect to such prohibitions and limitations than those prior
to such amendment or refinancing.




          SECTION 6.20 Anti-Terrorism Law; Anti-Money Laundering.




          (a) Directly or indirectly, (i) knowingly conduct any business or engage in making or
receiving any contribution of funds, goods or services to or for the benefit of any person
described in Section 3.21, (ii) knowingly deal in, or otherwise engage in any transaction
relating to, any property or interests in property blocked pursuant to the Executive Order or any
other Anti-Terrorism Law, or (iii) knowingly engage in or conspire to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of
the prohibitions set forth in any Anti-Terrorism Law (and the Loan Parties shall deliver to the
Lenders any certification or other evidence requested from time to time by any Lender in its
reasonable discretion, confirming the Loan Parties’ compliance with this Section 6.20).




          (b) Cause or permit any of the funds of such Loan Party that are used to repay the Loans to be
derived from any unlawful activity with the result that the making of the Loans would be in
violation of any Requirement of Law.




          SECTION 6.21 Embargoed Person. Cause or permit (a) any of the funds or properties of
the Loan Parties that are used to repay the Loans to constitute property of, or be beneficially
owned directly or indirectly by, any person subject to sanctions or trade restrictions under United
States law (“Embargoed Person” or “Embargoed Persons”) that is identified on (1) the “List of
Specially Designated Nationals and Blocked Persons” maintained by OFAC and/or on any other similar
list maintained by OFAC pursuant to any authorizing statute including, but not limited to, the
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy
Act, 50 U.S.C. App. 1 et seq., and any Executive Order or Requirement of Law promulgated
thereunder, with the result




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that the investment in the Loan Parties (whether directly or indirectly) is prohibited by a
Requirement of Law, or the Loans made by the Lenders would be in violation of a Requirement of Law,
or (2) the Executive Order, any related enabling legislation or any other similar Executive Orders
or (b) any Embargoed Person to have any direct or indirect interest, of any nature whatsoever in
the Loan Parties, with the result that the investment in the Loan Parties (whether directly or
indirectly) is prohibited by a Requirement of Law or the Loans are in violation of a Requirement of
Law.




ARTICLE VII




GUARANTEE




          SECTION 7.01 The Guarantee. The Guarantors hereby jointly and severally guarantee, as
a primary obligor and not as a surety to each Secured Party and their respective successors and
assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment,
declaration, demand, by acceleration or otherwise) of the principal of and interest (including any
interest, fees, costs or charges that would accrue but for the provisions of the Title 11 of the
United States Code after any bankruptcy or insolvency petition under Title 11 of the United States
Code) on the Loans made by the Lenders to, and the Notes held by each Lender of, Borrower, and all
other Secured Obligations from time to time owing to the Secured Parties by any Loan Party under
any Loan Document or any Hedging Agreement or Treasury Services Agreement entered into with a
counterparty that is a Secured Party, in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the “Guaranteed Obligations”). The Guarantors
hereby jointly and severally agree that if Borrower or other Guarantor(s) shall fail to pay in full
when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended
maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.




          SECTION 7.02 Obligations Unconditional. The obligations of the Guarantors under
Section 7.01 shall constitute a guaranty of payment and to the fullest extent permitted by
applicable Requirements of Law, are absolute, irrevocable and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed
Obligations of Borrower under this Agreement, the Notes, if any, or any other agreement or
instrument referred to herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense
of a surety or Guarantor (except for payment in full). Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or
impair the liability of the Guarantors hereunder which shall remain absolute, irrevocable and
unconditional under any and all circumstances as described above:





     (i) at any time or from time to time, without notice to the Guarantors, the time for
any performance of or compliance with any of the Guaranteed Obligations shall be extended,
or such performance or compliance shall be waived;




     (ii) any of the acts mentioned in any of the provisions of this Agreement or the Notes,
if any, or any other agreement or instrument referred to herein or therein shall be done or
omitted;



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     (iii) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of
the Guaranteed Obligations shall be amended in any respect, or any right under the Loan
Documents or any other agreement or instrument referred to herein or therein shall be
amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in part or otherwise
dealt with;




     (iv) any Lien or security interest granted to, or in favor of, Issuing Bank or any
Lender or Agent as security for any of the Guaranteed Obligations shall fail to be
perfected; or




     (v) the release of any other Guarantor pursuant to Section 7.09.



          The Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or
remedy or proceed against Borrower under this Agreement or the Notes, if any, or any other
agreement or instrument referred to herein or therein, or against any other person under any other
guarantee of, or security for, any of the Guaranteed Obligations. The Guarantors waive any and all
notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by any Secured Party upon this Guarantee or
acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all
dealings between Borrower and the Secured Parties shall likewise be conclusively presumed to have
been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a
continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any
right of offset with respect to the Guaranteed Obligations at any time or from time to time held by
Secured Parties, and the obligations and liabilities of the Guarantors hereunder shall not be
conditioned or contingent upon the pursuit by the Secured Parties or any other person at any time
of any right or remedy against Borrower or against any other person which may be or become liable
in respect of all or any part of the Guaranteed Obligations or against any collateral security or
guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full
force and effect and be binding in accordance with and to the extent of its terms upon the
Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lenders,
and their respective successors and assigns, notwithstanding that from time to time during the term
of this Agreement there may be no Guaranteed Obligations outstanding.




          SECTION 7.03 Reinstatement. The obligations of the Guarantors under this Article
VII shall be automatically reinstated if and to the extent that for any reason any payment by
or on behalf of Borrower or other Loan Party in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise.




          SECTION 7.04 Subrogation; Subordination. Each Guarantor hereby agrees that until the
indefeasible payment and satisfaction in full in cash of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under this Agreement it shall waive
any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any
performance by it of its guarantee in Section 7.01, whether by subrogation or otherwise,
against Borrower or any other Guarantor of any of the Guaranteed Obligations or any security for
any of the Guaranteed Obligations. Any Indebtedness of any Loan Party permitted pursuant to
Section 6.01(d) shall be subordinated to such Loan Party’s Secured Obligations in the
manner set forth in the Intercompany Note evidencing such Indebtedness.




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          SECTION 7.05 Remedies. The Guarantors jointly and severally agree that, as between
the Guarantors and the Lenders, the obligations of Borrower under this Agreement and the Notes, if
any, may be declared to be forthwith due and payable as provided in Section 8.01 (and shall
be deemed to have become automatically due and payable in the circumstances provided in Section
8.01) for purposes of Section 7.01, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming automatically due and
payable) as against Borrower and that, in the event of such declaration (or such obligations being
deemed to have become automatically due and payable), such obligations (whether or not due and
payable by Borrower) shall forthwith become due and payable by the Guarantors for purposes of
Section 7.01.




          SECTION 7.06 Instrument for the Payment of Money. Each Guarantor hereby acknowledges
that the guarantee in this Article VII constitutes an instrument for the payment of money,
and consents and agrees that any Lender or Agent, at its sole option, in the event of a dispute by
such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a
motion-action under New York CPLR Section 3213.




          SECTION 7.07 Continuing Guarantee. The guarantee in this Article VII is a
continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.




          SECTION 7.08 General Limitation on Guarantee Obligations. In any action or proceeding
involving any state corporate limited partnership or limited liability company law, or any
applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally, if the obligations of any Guarantor under Section 7.01
would otherwise be held or determined to be void, voidable, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of its liability under
Section 7.01, then, notwithstanding any other provision to the contrary, the amount of such
liability shall, without any further action by such Guarantor, any Loan Party or any other person,
be automatically limited and reduced to the highest amount (after giving effect to the right of
contribution established in Section 7.10) that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or proceeding.




          SECTION 7.09 Release of Guarantors. If, in compliance with the terms and provisions
of the Loan Documents, all or substantially all of the Equity Interests or property of any
Guarantor are sold or otherwise transferred (a “Transferred Guarantor”) to a person or persons,
none of which is Borrower or a Subsidiary, such Transferred Guarantor shall, upon the consummation
of such sale or transfer, be automatically released from its obligations under this Agreement
(including under Section 10.03 hereof) and its obligations to pledge and grant any
Collateral owned by it pursuant to any Security Document and, in the case of a sale of all or
substantially all of the Equity Interests of the Transferred Guarantor, the pledge of such Equity
Interests to the Collateral Agent pursuant to the Security Agreements shall be automatically
released, and, so long as Borrower shall have provided the Agents such certifications or documents
as any Agent shall reasonably request, the Collateral Agent shall take such actions as are
necessary to effect each release described in this Section 7.09 in accordance with the
relevant provisions of the Security Documents, so long as Borrower shall have provided the Agents
such certifications or documents as any Agent shall reasonably request in order to demonstrate
compliance with this Agreement.




          SECTION 7.10 Right of Contribution. Each Subsidiary Guarantor hereby agrees that to
the extent that a Subsidiary Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and receive
contribution from and against any other Subsidiary Guarantor hereunder which has not paid its
proportionate share of such payment. Each Subsidiary Guarantor’s right of contribution shall be
subject to the terms




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and conditions of Section 7.04. The provisions of this Section 7.10 shall in no
respect limit the obligations and liabilities of any Subsidiary Guarantor to the Administrative
Agent, the Issuing Bank, and the Lenders, and each Subsidiary Guarantor shall remain liable to the
Administrative Agent, the Issuing Bank, and the Lenders for the full amount guaranteed by such
Subsidiary Guarantor hereunder.




ARTICLE VIII




EVENTS OF DEFAULT




          SECTION 8.01 Events of Default. Upon the occurrence and during the continuance of the
following events (“Events of Default”):





     (a) default shall be made in the payment of any principal of any Loan or any
Reimbursement Obligation when and as the same shall become due and payable, whether at the
due date thereof (including a Term Loan Repayment Date) or at a date fixed for prepayment
(whether voluntary or mandatory) thereof or by acceleration thereof or otherwise;




     (b) default shall be made in the payment of any interest on any Loan or any Fee or any
other amount (other than an amount referred to in paragraph (a) above) due under any Loan
Document, when and as the same shall become due and payable, and such default shall continue
unremedied for a period of three Business Days;




     (c) any representation or warranty made or deemed made in or in connection with any
Loan Document or the borrowings or issuances of Letters of Credit hereunder, or any
representation, warranty, statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or pursuant to any Loan
Document, shall prove to have been false or misleading in any material respect when so made,
deemed made or furnished;




     (d) default shall be made in the due observance or performance by any Company of any
covenant, condition or agreement contained in Section 5.02(a), 5.03(a) or
5.08 or in Article VI;




     (e) default shall be made in the due observance or performance by any Company of any
covenant, condition or agreement contained in any Loan Document (other than those specified
in paragraphs (a), (b) or (d) immediately above) and such default shall continue unremedied
or shall not be waived for a period of 30 days after written notice thereof from the
Administrative Agent or any Lender to Borrower;




     (f) any Company shall (i) fail to pay any principal or interest, regardless of amount,
due in respect of any Indebtedness (other than the Obligations), when and as the same shall
become due and payable beyond any applicable grace period, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of any failure
referred to in this clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee or other representative on its or their behalf (with or without
the giving of notice, the lapse of time or both) to cause, such Indebtedness to become due
prior to its stated maturity or become subject to a mandatory offer purchase by the obligor;
provided that it shall not constitute an Event of Default pursuant to this paragraph (f)
unless the aggregate amount of all such Indebtedness referred to in clauses (i)
and (ii) exceeds $500,000 at any one time (provided that, in the case of Hedging
Obligations, the



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amount counted for this purpose shall be the amount payable by all
Companies if such Hedging Obligations were terminated at such time);




     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of any Company, or
of a substantial part of the property of any Company, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law; (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for any Company or for a
substantial part of the property of any Company; or (iii) the winding-up or liquidation of
any Company; and such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be entered;




     (h) any Company shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or
similar law; (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in clause (g)
above; (iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for any Company or for a substantial part of
the property of any Company; (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding; (v) make a general assignment for the
benefit of creditors; (vi) become unable, admit in writing its inability or fail generally
to pay its debts as they become due; (vii) take any action for the purpose of effecting any
of the foregoing; or (viii) wind up or liquidate;




     (i) one or more judgments, orders or decrees for the payment of money in an aggregate
amount in excess of $500,000 shall be rendered against any Company or any combination
thereof and the same shall remain undischarged, unvacated or unbonded for a period of 30
consecutive days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to levy upon properties of any Company to enforce
any such judgment;




     (j) one or more ERISA Events or noncompliance with respect to Foreign Plans shall have
occurred that, in the opinion of the Required Lenders, when taken together with all other
such ERISA Events and noncompliance with respect to Foreign Plans that have occurred, could
reasonably be expected to result in a Material Adverse Effect or in the imposition of a Lien
on any properties of a Company;




     (k) any security interest and Lien purported to be created by any Security Document
shall cease to be in full force and effect, or shall cease to give the Collateral Agent, for
the benefit of the Secured Parties, the Liens, rights, powers and privileges purported to be
created and granted under such Security Document (including a perfected first priority
security interest in and Lien on all of the Collateral thereunder (except as otherwise
expressly provided in such Security Document)) in favor of the Collateral Agent, or shall be
asserted by Borrower or any other Loan Party not to be a valid, perfected, first priority
(except as otherwise expressly provided in this Agreement or such Security Document)
security interest in or Lien on the Collateral covered thereby;



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     (l) any Loan Document or any material provisions thereof shall at any time and for any
reason be declared by a court of competent jurisdiction to be null and void, or a proceeding
shall be commenced by any Loan Party or any other person, or by any Governmental Authority,
seeking to establish the invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or any Loan Party shall repudiate or deny any
portion of its liability or obligation for the Obligations;




     (m) there shall have occurred a Change in Control; or




     (n) any Company shall be prohibited or otherwise restrained from conducting the
business theretofore conducted by it in any manner that has or could reasonably be expected
to result in a Material Adverse Effect by virtue of any determination, ruling, decision,
decree or order of any court or Governmental Authority of competent jurisdiction;


then, and in every such event (other than an event with respect to Borrower described in paragraph
(g) or (h) above), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to Borrower,
take either or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans and Reimbursement Obligations then outstanding
to be forthwith due and payable in whole or in part, whereupon the principal of the Loans and
Reimbursement Obligations so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other Obligations of Borrower accrued hereunder and under any
other Loan Document, shall become forthwith due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by Borrower and the
Guarantors, anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event, with respect to Borrower described in paragraph (g) or (h)
above, the Commitments shall automatically terminate and the principal of the Loans and
Reimbursement Obligations then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other Obligations of Borrower accrued hereunder and under any other Loan
Document, shall automatically become due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by Borrower and the Guarantors,
anything contained herein or in any other Loan Document to the contrary notwithstanding.




          SECTION 8.02 Rescission. If at any time after termination of the Commitments or
acceleration of the maturity of the Loans, Borrower shall pay all arrears of interest and all
payments on account of principal of the Loans and Reimbursement Obligations owing by it that shall
have become due otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified herein) and all Defaults (other than
non-payment of principal of and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 10.02, then upon the written
consent of the Required Lenders and written notice to Borrower, the termination of the Commitments
or the acceleration and their consequences may be rescinded and annulled; but such action shall not
affect any subsequent Default or impair any right or remedy consequent thereon. The provisions of
the preceding sentence are intended merely to bind the Lenders and the Issuing Bank to a decision
that may be made at the election of the Required Lenders, and such provisions are not intended to
benefit Borrower and do not give Borrower the right to require the Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.




          SECTION 8.03 Application of Proceeds. The proceeds received by the Collateral Agent
in respect of any sale of, collection from or other realization upon all or any part of the
Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, in
full or in part, together




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with any other sums then held by the Collateral Agent pursuant to this Agreement, promptly by
the Collateral Agent as follows:





     (a) First, to the payment of all reasonable costs and expenses, fees, commissions and
taxes of such sale, collection or other realization including compensation to the Collateral
Agent and its agents and counsel, and all expenses, liabilities and advances made or
incurred by the Collateral Agent in connection therewith and all amounts for which the
Collateral Agent is entitled to indemnification pursuant to the provisions of any Loan
Document, together with interest on each such amount at the highest rate then in effect
under this Agreement from and after the date such amount is due, owing or unpaid until paid
in full;




     (b) Second, to the payment of all other reasonable costs and expenses of such sale,
collection or other realization including compensation to the other Secured Parties and
their agents and counsel and all costs, liabilities and advances made or incurred by the
other Secured Parties in connection therewith, together with interest on each such amount at
the highest rate then in effect under this Agreement from and after the date such amount is
due, owing or unpaid until paid in full;




     (c) Third, without duplication of amounts applied pursuant to clauses (a) and (b)
above, to the indefeasible payment in full in cash, pro rata, of interest and other amounts
constituting Obligations (other than principal, Reimbursement Obligations and obligations to
cash collateralize Letters of Credit) and any fees, premiums and scheduled periodic payments
due under Hedging Agreements or Treasury Services Agreements constituting Secured
Obligations and any interest accrued thereon, in each case equally and ratably in accordance
with the respective amounts thereof then due and owing;




     (d) Fourth, to the indefeasible payment in full in cash, pro rata, of principal amount
of the Obligations and any premium thereon (including Reimbursement Obligations and
obligations to cash collateralize Letters of Credit) and any breakage, termination or other
payments under Hedging Agreements and Treasury Services Agreements constituting Secured
Obligations and any interest accrued thereon; and




     (e) Fifth, the balance, if any, to the person lawfully entitled thereto (including the
applicable Loan Party or its successors or assigns) or as a court of competent jurisdiction
may direct.



          In the event that any such proceeds are insufficient to pay in full the items described in
clauses (a) through (e) of this Section 8.03, the Loan Parties shall remain liable, jointly
and severally, for any deficiency.




ARTICLE IX




THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT




          SECTION 9.01 Appointment and Authority. Each of the Lenders and the Issuing Bank
hereby irrevocably appoints Canadian Imperial Bank of Commerce, acting through its New York agency,
to act on its behalf as the Administrative Agent and the Collateral Agent hereunder and under the
other Loan Documents and authorizes such Agents to take such actions on its behalf and to exercise
such powers as are delegated to such Agents by the terms hereof or thereof, together with such
actions and




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powers as are reasonably incidental thereto. The provisions of this Article are solely for
the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Bank,
and neither Borrower nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.




          SECTION 9.02 Rights as a Lender. Each person serving as an Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include each person serving as an
Agent hereunder in its individual capacity. Such person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof
as if such person were not an Agent hereunder and without any duty to account therefor to the
Lenders.




          SECTION 9.03 Exculpatory Provisions. No Agent shall have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, no Agent:





     (i) shall be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;




     (ii) shall have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that such Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents); provided that such Agent shall not be
required to take any action that, in its judgment or the judgment of its counsel, may expose
such Agent to liability or that is contrary to any Loan Document or applicable Requirements
of Law; and




     (iii) shall, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to Borrower or any of its Affiliates that is communicated to or obtained by the
person serving as such Agent or any of its Affiliates in any capacity.


No Agent shall be liable for any action taken or not taken by it (x) with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Section 10.02) or (y) in the absence of its own gross negligence or willful
misconduct. No Agent shall be deemed to have knowledge of any Default unless and until notice
describing such Default is given to such Agent by Borrower, a Lender or the Issuing Bank.




          No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to such Agent. Without limiting the
generality of the foregoing, the use of the term “agent” in this




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Agreement with reference to the Administrative Agent or the Collateral Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term us used merely as a matter of market custom and is intended
to create or reflect only an administrative relationship between independent contracting parties.




          Each party to this Agreement acknowledges and agrees that the Administrative Agent will use an
outside service provider for the tracking of all UCC financing statements required to be filed
pursuant to the Loan Documents and notification to the Administrative Agent, of, among other
things, the upcoming lapse or expiration thereof, and that such service provider will be deemed to
be acting at the request and on behalf of Borrower and the other Loan Parties. No Agent shall be
liable for any action taken or not taken by such service provider.




          SECTION 9.04 Reliance by Agent. Each Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper person. Each Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper person, and shall
not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender or the Issuing Bank, the Administrative Agent may presume
that such condition is satisfactory to such Lender or the Issuing Bank unless the Administrative
Agent shall have received notice to the contrary from such Lender or the Issuing Bank prior to the
making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal
counsel (who may be counsel for Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.




          SECTION 9.05 Delegation of Duties. Each Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by or through, or
delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent.
Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory provisions of this Article
shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.




          SECTION 9.06 Resignation of Agent. Each Agent may at any time give notice of its
resignation to the Lenders, the Issuing Bank and Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent meeting the qualifications set forth above provided that if
the Agent shall notify Borrower and the Lenders that no qualifying person has accepted such
appointment, then such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents (except that in the case of any collateral security held by the
Collateral Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the
retiring Collateral Agent shall continue to hold such collateral security as nominee




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until such time as a successor Collateral Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through an Agent shall instead be
made by or to each Lender and the Issuing Bank directly, until such time as the Required Lenders
appoint a successor Agent as provided for above in this paragraph. Upon the acceptance of a
successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the
retiring Agent shall be discharged from all of its duties and obligations hereunder or under the
other Loan Documents (if not already discharged therefrom as provided above in this paragraph).
The fees payable by Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between Borrower and such successor. After the retiring
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this
Article IX and Section 10.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Agent was acting as Agent.




          SECTION 9.07 Non-Reliance on Agent and Other Lenders. Each Lender and the Issuing
Bank acknowledges that it has, independently and without reliance upon any Agent or any other
Lender and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender further represents and
warrants that it has reviewed the Confidential Information Memorandum and each other document made
available to it on the Platform in connection with this Agreement and has acknowledged and accepted
the terms and conditions applicable to the recipients thereof. Each Lender and the Issuing Bank
also acknowledges that it will, independently and without reliance upon any Agent or any other
Lender and based on such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document furnished hereunder or
thereunder.




          SECTION 9.08 No Other Duties, etc. Anything herein to the contrary notwithstanding,
none of the Bookrunner, Sole Lead Arranger, Syndication Agent or Documentation Agent listed on the
cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, the
Collateral Agent, a Lender or the Issuing Bank hereunder.




ARTICLE X




MISCELLANEOUS




          SECTION 10.01 Notices.




          (a) Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopier as follows:




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	 	(i)
	 	if to any Loan Party, to Borrower at:
	 
	 	 	 	 
	 

	 	 	 	c/o NaviSite, Inc.
	 

	 	 	 	400 Minuteman Road
	 

	 	 	 	Andover, Massachusetts 01810
	 

	 	 	 	Attention: James W. Pluntze
	 

	 	 	 	Telecopier No.: (978) 946-7803
	 
	 	 	 	 
	 

	 	 	 	with a copy to:
	 
	 	 	 	 
	 

	 	 	 	c/o NaviSite, Inc.
	 

	 	 	 	20 East 66th Street
	 

	 	 	 	New York, New York 10021
	 

	 	 	 	Attention: Arthur Becker, Chief Executive Officer
	 

	 	 	 	Telecopier No.: (212) 396-2388
	 
	 	 	 	 
	 

	 	 	 	and
	 
	 	 	 	 
	 

	 	 	 	BRL Law Group LLC
	 

	 	 	 	31 St. James Ave., Suite 850
	 

	 	 	 	Boston, Massachusetts 02116
	 

	 	 	 	Attention: Thomas B. Rosedale
	 

	 	 	 	Telecopier No.: (617) 399-6930
	 
	 	 	 	 
	 

	 	(ii)
	 	if to the Administrative Agent, the Collateral Agent or Issuing Bank, to it at:
	 
	 	 	 	 
	 

	 	 	 	Agency Services
	 

	 	 	 	300 Madison Avenue
	 

	 	 	 	New York, New York 10017
	 

	 	 	 	Attention: Christine Aharonian
	 

	 	 	 	Telecopier No.: (212) 856-3763
	 

	 	 	 	Email: Christine.Aharonian@us.cibc.com
	 
	 	 	 	 
	 

	 	 	 	and






          (iii) if to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in paragraph (b) below,
shall be effective as provided in said paragraph (b).




          (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Bank hereunder may (subject to Section 10.01(d)) be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent; provided that the foregoing shall not apply to
notices to any Lender or the Issuing Bank pursuant to Article II if such Lender or the
Issuing Bank, as applicable, has notified the




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Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent, the Collateral Agent or Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it (including as set forth in Section 10.01(d));
provided that approval of such procedures may be limited to particular notices or communications.




          Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement); provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




          (c) Change of Address, Etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by notice to the other parties hereto.




          (d) Posting. Each Loan Party hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials that it is obligated to furnish
to the Administrative Agent pursuant to this Agreement and any other Loan Document, including all
notices, requests, financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that (i) relates to a request for a
new, or a conversion of an existing, Borrowing or other extension of credit (including any election
of an interest rate or interest period relating thereto), (ii) relates to the payment of any
principal or other amount due under this Agreement prior to the scheduled date therefor, (iii)
provides notice of any Default under this Agreement or (iv) is required to be delivered to satisfy
any condition precedent to the effectiveness of this Agreement and/or any borrowing or other
extension of credit hereunder (all such non-excluded communications, collectively, the
“Communications”), by transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent or at such other e-mail address(es) provided to
Borrower from time to time or in such other form, including hard copy delivery thereof, as the
Administrative Agent shall require. In addition, each Loan Party agrees to continue to provide the
Communications to the Administrative Agent in the manner specified in this Agreement or any other
Loan Document or in such other form, including hard copy delivery thereof, as the Administrative
Agent shall require. Nothing in this Section 10.01 shall prejudice the right of the
Agents, any Lender or any Loan Party to give any notice or other communication pursuant to this
Agreement or any other Loan Document in any other manner specified in this Agreement or any other
Loan Document or as any such Agent shall require.




          To the extent consented to by the Administrative Agent in writing from time to time,
Administrative Agent agrees that receipt of the Communications by the Administrative Agent at its
e-mail address(es) set forth above shall constitute effective delivery of the Communications to the
Administrative Agent for purposes of the Loan Documents; provided that Borrower shall also deliver
to the Administrative Agent an executed original of each Compliance Certificate required to be
delivered hereunder.




          Each Loan Party further agrees that Administrative Agent may make the Communications available
to the Lenders by posting the Communications on IntraLinks or a substantially similar electronic
transmission system (the “Platform”). The Platform is provided “as is” and “as available.” The
Agents do not warrant the accuracy or completeness of the Communications, or the adequacy of the




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Platform and expressly disclaim liability for errors or omissions in the communications. No
warranty of any kind, express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by any Agent in connection with the
Communications or the Platform. In no event shall the Administrative Agent or any of its Related
Parties have any liability to the Loan Parties, any Lender or any other person for damages of any
kind, including direct or indirect, special, incidental or consequential damages, losses or
expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the
Administrative Agent’s transmission of communications through the Internet, except to the extent
the liability of such person is found in a final nonappealable judgment by a court of competent
jurisdiction to have resulted from such person’s gross negligence or willful misconduct.




          SECTION 10.02 Waivers; Amendment.




          (a) Generally. No failure or delay by any Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of each Agent, the
Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by this Section 10.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether any Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at the time. No notice
or demand on Borrower in any case shall entitle Borrower to any other or further notice or demand
in similar or other circumstances.




          (b) Required Consents. Subject to Sections 10.02(c), (d), neither
this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived,
amended, supplemented or modified except, in the case of this Agreement, pursuant to an agreement
or agreements in writing entered into by Borrower and the Administrative Agent or, in the case of
any other Loan Document, pursuant to an agreement or agreements in writing entered into by the
Administrative Agent, the Collateral Agent (in the case of any Security Document) and the Loan
Party or Loan Parties that are party thereto, in each case with the written consent of the Required
Lenders; provided that no such agreement shall be effective if the effect thereof would:





     (i) increase the Commitment of any Lender without the written consent of such Lender
(it being understood that no amendment, modification, termination, waiver or consent with
respect to any condition precedent, covenant or Default shall constitute an increase in the
Commitment of any Lender);




     (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon (other than interest pursuant to Section 2.06(c)), or reduce any
Fees payable hereunder, or change the form or currency of payment of any Obligation, without
the written consent of each Lender directly affected thereby (it being understood that any
amendment or modification to the financial definitions in this Agreement shall not
constitute a reduction in the rate of interest for purposes of this clause (ii));



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     (iii) (A) change the scheduled final maturity of any Loan, or any scheduled date of
payment of or the installment otherwise due on the principal amount of any Term Loan under
Section 2.09, (B) postpone the date for payment of any Reimbursement Obligation or
any interest or fees payable hereunder, (C) change the amount of, waive or excuse any such
payment (other than waiver of any increase in the interest rate pursuant to Section
2.06(c)), or (D) postpone the scheduled date of expiration of any Commitment or any
Letter of Credit beyond the Revolving Maturity Date, in any case, without the written
consent of each Lender directly affected thereby;




     (iv) increase the maximum duration of Interest Periods hereunder, without the written
consent of each Lender directly affected thereby;




     (v) permit the assignment or delegation by Borrower of any of its rights or obligations
under any Loan Document, without the written consent of each Lender;




     (vi) release any material Subsidiary Guarantor from its Guarantee (except as expressly
provided in Article VII), or limit its liability in respect of such Guarantee,
without the written consent of each Lender;




     (vii) release all or a substantial portion of the Collateral from the Liens of the
Security Documents or alter the relative priorities of the Secured Obligations entitled to
the Liens of the Security Documents, in each case without the written consent of each Lender
(it being understood that additional Classes of Loans pursuant to Section 2.18 or
consented to by the Required Lenders may be equally and ratably secured by the Collateral
with the then existing Secured Obligations under the Security Documents);




     (viii) change Section 2.14(b), (c) or (d) in a manner that
would alter the pro rata sharing of payments or setoffs required thereby or any other
provision in a manner that would alter the pro rata allocation among the Lenders of Loan
disbursements, including the requirements of Sections 2.02(a) and 2.17(d),
without the written consent of each Lender directly affected thereby;




     (ix) change any provision of this Section 10.02(b) or Section 10.02(c)
or (d), without the written consent of each Lender directly affected thereby (except
for additional restrictions on amendments or waivers for the benefit of Lenders of
additional Classes of Loans pursuant to Section 2.18 or consented to by the Required
Lenders);




     (x) change the percentage set forth in the definition of “Required Lenders,” “Required
Class Lenders,” “Required Revolving Lenders” or any other provision of any Loan Document
(including this Section) specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any determination or
grant any consent thereunder, without the written consent of each Lender (or each Lender of
such Class, as the case may be), other than to increase such percentage or number or to give
any additional Lender or group of Lenders such right to waive, amend or modify or make any
such determination or grant any such consent;




     (xi) change the application of prepayments as among or between Classes under
Section 2.10(h), without the written consent of the Required Class Lenders of each
Class that is being allocated a lesser prepayment as a result thereof (it being understood
that the Required Lenders may waive, in whole or in part, any prepayment so long as the
application, as between Classes, of



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any portion of such prepayment that is still required to be made is not changed and, if
additional Classes of Term Loans under this Agreement pursuant to Section 2.18 or
consented to by the Required Lenders are made, such new Term Loans may be included on a pro
rata basis in the various prepayments required pursuant to Section 2.10(h));




     (xii) change or waive the application of prepayments of Term Loans of any Class set
forth in Section 2.10(h) to the remaining scheduled amortization payments to be made
thereon under Section 2.09, without the written consent of the Required Class
Lenders of such Class;




     (xiii) subordinate the Obligations to any other obligation, without the written consent
of each Lender;




     (xiv) change or waive any provision of Article X as the same applies to any
Agent, or any other provision hereof as the same applies to the rights or obligations of any
Agent, in each case without the written consent of such Agent;




     (xv) change or waive any obligation of the Lenders relating to the issuance of or
purchase of participations in Letters of Credit, without the written consent of the
Administrative Agent and the Issuing Bank;




     (xvi) expressly change or waive any condition precedent in Section 4.02 to any
Revolving Borrowing without the written consent of the Required Revolving Lenders;


provided, further, that any waiver, amendment or modification prior to the completion of the
primary syndication of the Commitments and Loans (as determined by the Sole Lead Arranger) may not
be effected without the written consent of the Sole Lead Arranger.




          (c) Collateral. Without the consent of any other person, the applicable Loan Party or
Parties and the Administrative Agent and/or Collateral Agent may (in its or their respective sole
discretion, or shall, to the extent required by any Loan Document) enter into any amendment or
waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting,
perfection, protection, expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured Parties, or as required by
local law to give effect to, or protect any security interest for the benefit of the Secured
Parties, in any property or so that the security interests therein comply with applicable
Requirements of Law.




          (d) Dissenting Lenders. If, in connection with any proposed change, waiver, discharge
or termination of the provisions of this Agreement as contemplated by Section 10.02(b), the
consent of the Required Lenders is obtained but the consent of one or more of such other Lenders
whose consent is required is not obtained, then Borrower shall have the right to replace all, but
not less than all, of such non-consenting Lender or Lenders (so long as all non-consenting Lenders
are so replaced) with one or more persons pursuant to Section 2.16 so long as at the time
of such replacement each such new Lender consents to the proposed change, waiver, discharge or
termination. Each Lender agrees that, if Borrower elects to replace such Lender in accordance with
this Section, it shall promptly execute and deliver to the Administrative Agent an Assignment and
Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any
Note (if Notes have been issued in respect of such Lender’s Loans) subject to such Assignment and
Assumption; provided that the failure of any such non-consenting Lender to execute an Assignment
and Assumption shall not render such sale and purchase (and the corresponding assignment) invalid
and such assignment shall be recorded in the Register.




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          SECTION 10.03 Expenses; Indemnity; Damage Waiver.




          (a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Sole Lead Arranger, the Administrative Agent, the Collateral Agent and their
respective Affiliates (including, but not limited to, the fees, charges and disbursements of
counsel for the Sole Lead Arranger, the Administrative Agent and/or the Collateral Agent and
expenses incurred in connection with due diligence prior to the Effective Date and travel, courier,
reproductions, printing and delivery expense) in connection with the syndication of the credit
facilities provided for herein (including the obtaining and maintaining of CUSIP numbers for the
Loans), the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents, including any Collateral Audit, or any amendments, modifications or
waivers (including, without limitation, proposed amendments, proposed modifications and proposed
waivers) of the provisions hereof or thereof (whether or not the transactions contemplated hereby
or thereby shall be consummated), including in connection with post-closing searches to confirm
that security filings and recordations have been properly made and including any costs and expenses
of the service provider referred to in Section 9.03, (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder, (iii) all out-of-pocket
expenses incurred by the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank
(including, but not limited to, the fees, charges and disbursements of any counsel for the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank), in connection with (I)
the enforcement or protection of its rights (A) in connection with this Agreement and the other
Loan Documents, including its rights under this Section 10.03, or (B) in connection with
the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit and (II) the exercise of its rights under Section 5.07(a) if at such time an Event of
Default shall have occurred and be continuing and (iv) all documentary and similar taxes and
charges in respect of the Loan Documents.




          (b) Indemnification by Borrower. Borrower shall indemnify the Sole Lead Arranger, the
Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof)
each Lender and the Issuing Bank, and each Related Party of any of the foregoing persons (each such
person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related costs and expenses (including the fees, charges
and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document, or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence
or Release or threatened Release of Hazardous Materials on, at, under or from any property owned,
leased or operated by any Company at any time, or any Environmental Claim related in any way to any
Company, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a
third party or by Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower
or any other Loan Party




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against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or
under any other Loan Document, if Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.




          (c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to
indefeasibly pay any amount required under paragraph (a) or (b) of this Section 10.03 to be
paid by it to the Administrative Agent (or any sub-agent thereof), the Collateral Agent, the
Issuing Bank, or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof),
the Issuing Bank, or such Related Party, as the case may be, such Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount (such indemnity shall be effective whether or not the related losses, claims,
damages, liabilities and related expenses are incurred or asserted by any party hereto or any third
party); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
(or any such sub-agent), the Collateral Agent (or any sub-agent thereof), the Issuing Bank in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof),
Issuing Bank in connection with such capacity. The obligations of the Lenders under this paragraph
(c) are subject to the provisions of Section 2.14. For purposes hereof, a Lender’s “pro
rata share” shall be determined based upon its share of the sum of the total Revolving Exposure,
outstanding Term Loans and unused Commitments at the time.




          (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Requirements of Law, no Loan Party shall assert, and each Loan Party hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.




          (e) Payments. All amounts due under this Section shall be payable not later than 3
Business Days after demand therefor.




          SECTION 10.04 Successors and Assigns.




          (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of paragraph (b) of this Section 10.04, (ii) by
way of pledge or assignment of a security interest subject to the restrictions of paragraph (f) of
this Section 10.04 (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in paragraph (d) of this Section and, to the




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extent expressly contemplated hereby, the Related parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.




          (b) Assignments by Lenders. Any Lender may at any time with written notice to the
Administrative Agent assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that





     (i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to
a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date) shall not be less than $1.0 million, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing,
Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);




     (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loan or the Commitment assigned;




     (iii) any assignment of a Revolving Commitment must be approved by the Administrative
Agent and the Issuing Lender unless the Person that is the proposed assignee is itself a
Lender with a Revolving Commitment (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee); and




     (iv) with respect to each assignment, the assigning Lender, the Eligible Assignee and
any Person whose consent is required by this Section 10.04 shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500 (except in the case of an assignment to an Affiliate of the
assigning Lender or an Approved Fund of the assigning Lender, the processing and recordation
fee shall be $500), and the Eligible Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire and an original tax form.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 10.04, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but
shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14,
2.15 and 10.03 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 10.04(b) shall be treated for purposes
of this Agreement as a sale


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by such Lender of a participation in such rights and obligations in accordance with paragraph (d)
of this Section 10.04.




          (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
Borrower, shall maintain at one of its offices in New York a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive, and Borrower, the Administrative Agent and the Lenders shall treat each person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by Borrower, at any reasonable time and from time to time upon reasonable
prior notice.




          (d) Participations. Any Lender may, at any time, sell participations to any person
(other than a natural person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (iii)
Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement.




          Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in clause (i), (ii) or (iii) of the first
proviso to Section 10.02(b) that affects such Participant. Subject to paragraph (e) of
this Section, Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.12, 2.13, 2.14, 2.15 and 10.03 (subject to the
requirements of those Sections) to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.08 as though it were
a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of
each Participant and the principal amount of each Participant’s interest in the Loans held by it
(the “Participant Register”). The entries in the Participant Register shall be conclusive, absent
manifest error, and such Lender shall treat each Person whose name is recorded in the Participant
Register as the owner of such Loan or other obligation hereunder as the owner thereof for all
purposes of this Agreement notwithstanding any notice to the contrary. Any such Participant
Register shall be available for inspection by the Administrative Agent at any reasonable time and
from time to time upon reasonable prior notice.




          (e) Limitations on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Sections 2.12, 2.13, 2.14 or 2.15 than the
applicable Lender would have been entitled to receive with respect to the participation sold to
such Participant except to the extent that the entitlement to any greater payment results from any
change in Requirements of Law after the Participant becomes a Participant, unless the sale of the
participation to such Participant is made with Borrower’s prior written consent.




-116-









 








          (f) Certain Pledges. Any Lender may at any time (without any notice, consent or
processing and recordation fee required hereunder) pledge, grant a security interest in or make an
assignment of all or any portion of its rights under this Agreement to an Affiliate of such Lender
and/or to secure obligations of such Lender, including, without limitation, any pledge or
assignment to secure obligations to a Federal Reserve Bank (or any funding or financing source of
any Lender) and, in the case of any Lender that is a Fund, any pledge, security interest in or
assignment to any holders of obligations owed, or securities issued by, such Lender including to
any trustee for, or any other representative of, such holders; provided that no such pledge,
security interest or assignment shall release such Lender from any of its obligations hereunder or,
except in compliance with the provisions of Section 10.04(b), substitute any such pledgee or
assignee for such Lender as a party hereto.




          SECTION 10.05 Survival of Agreement. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Agents, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal of or any accrued
interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.12, 2.14, 2.15 and Article
X (other than Section 10.12) shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans,
the payment of the Reimbursement Obligations, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any provision hereof.




          SECTION 10.06 Counterparts; Integration; Effectiveness.




          (a) This Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement and the other Loan Documents, and any
separate letter agreements with respect to fees payable to the Administrative Agent, constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.




          (b) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable Requirement of Law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state
laws based on the Uniform Electronic Transactions Act.




-117-









 








          SECTION 10.07 Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 10.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Bank, and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable
Requirements of Law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the Issuing Bank or any such Affiliate to or for the
credit or the account of Borrower or any other Loan Party against any and all of the obligations of
Borrower or such Loan Party existing on the Original Closing Date or thereafter under this
Agreement (or the Original Credit Agreement, as applicable) or any other Loan Document to such
Lender or the Issuing Bank, irrespective of whether or not such Lender or the Issuing Bank shall
have made any demand under this Agreement or any other Loan Document and although such obligations
of Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of
such Lender or the Issuing Bank different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, the Issuing Bank and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, the Issuing Bank or their respective Affiliates may have. Each Lender
and the Issuing Bank agrees to notify Borrower and the Administrative Agent promptly after any such
setoff and application; provided that the failure to give such notice shall not affect the validity
of such setoff and application.




          SECTION 10.09 Governing Law; Jurisdiction; Consent to Service of Process.




          (a) Governing Law. This Agreement 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.




          (b) Submission to Jurisdiction. Each Loan Party hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State court or, to the fullest extent permitted by applicable law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document against any Loan Party
or its properties in the courts of any jurisdiction.




          (c) Waiver of Venue. Each Loan Party hereby irrevocably and unconditionally waives,
to the fullest extent permitted by applicable Requirements of Law, any objection which it may now
or hereafter have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred to in Section 10.09(b).
Each of the par-




-118-









 




ties hereto hereby irrevocably waives, to the fullest extent permitted by applicable
Requirements of Law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.




          (d) Service of Process. Each party hereto irrevocably consents to service of process
in any action or proceeding arising out of or relating to any Loan Document, in the manner provided
for notices (other than telecopier) in Section 10.01. Nothing in this Agreement or any
other Loan Document will affect the right of any party hereto to serve process in any other manner
permitted by applicable Requirements of Law.




          SECTION 10.10 Waiver of Jury Trial. Each Loan Party hereby waives, to the fullest
extent permitted by applicable Requirements of Law, any right it may have to a trial by jury in any
legal proceeding directly or indirectly arising out of or relating to this Agreement, any other
Loan Document or the transactions contemplated hereby (whether based on contract, tort or any other
theory). Each party hereto (a) certifies that no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties
hereto have been induced to enter into this Agreement by, among other things, the mutual waivers
and certifications in this Section.




          SECTION 10.11 Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.




          SECTION 10.12 Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent, the Lenders and the Issuing Bank agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliates’ respective partners, directors, officers, employees, agents,
advisors and other representatives (it being understood that the persons to whom such disclosure is
made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any Governmental Authority or regulatory
authority (including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Requirements of Law or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) to
an investor or a prospective investor in an Approved Fund or securities issued by an Approved Fund,
(g) to a trustee, collateral manager, servicer, backup servicer, noteholder, or secured party in
connection with the administration, servicing and reporting on assets serving as collateral for
securities issued by an Approved Fund, (h) to a nationally recognized rating agency in connection
with ratings issued in respect of securities of an Approved Fund, (i) subject to an agreement
containing provisions substantially the same as those of this Section 10.12, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement, (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to Borrower and its obligations or (iii) any rating
agency for the purpose of obtaining a credit rating applicable to any Lender, (j) with the consent
of Borrower or (k) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent, any
Lender, the Issuing Bank or any of their respective Affiliates on a nonconfidential basis from a
source other than Borrower. For purposes of this Section, “Information” means all information
received from Borrower or any of its Subsidiaries relating to Borrower or any of its Subsidiaries
or any of their respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the Issuing Bank on a nonconfidential basis prior to disclosure
by Borrower or any




-119-









 




of its Subsidiaries; provided that, in the case of information received from Borrower or any
of its Subsidiaries after the Original Closing Date, such information is clearly identified at the
time of delivery as confidential. Any person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its obligation to
do so if such person has exercised the same degree of care to maintain the confidentiality of such
Information as such person would accord to its own confidential information.




          SECTION 10.13 USA PATRIOT Act Notice. Each Lender that is subject to the Patriot Act
(as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies Borrower that pursuant to the requirements of the Patriot Act it is required to
obtain, verify and record information that identifies Borrower, which information includes the
name, address and tax identification number of Borrower and other information regarding Borrower
that will allow such Lender or the Administrative Agent, as applicable, to identify Borrower in
accordance with the Patriot Act. This notice is given in accordance with the requirements of the
Patriot Act and is effective as to the Lenders and the Administrative Agent.




          SECTION 10.14 Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable Requirements of Law
(collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may
be contracted for, charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable Requirements of Law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.




          SECTION 10.15 Lender Addendum. Each Lender that became a party to the Original Credit
Agreement on the Original Closing Date did so by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, Borrower and the Administrative Agent. Each Lender to
become a party to this Agreement on the Effective Date, or committing to an Additional Term Loan
Commitment as of the Effective Date, shall do so by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, Borrower and the Administrative Agent.




          SECTION 10.16 Obligations Absolute. To the fullest extent permitted by applicable
Requirements of Law, all obligations of the Loan Parties hereunder shall be absolute and
unconditional irrespective of:




          (a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of any Loan Party;




          (b) any lack of validity or enforceability of any Loan Document or any other agreement or
instrument relating thereto against any Loan Party;




          (c) any change in the time, manner or place of payment of, or in any other term of, all or any
of the Obligations, or any other amendment or waiver of or any consent to any departure from any
Loan Document or any other agreement or instrument relating thereto;




-120-









 








          (d) any exchange, release or non-perfection of any other Collateral, or any release or
amendment or waiver of or consent to any departure from any guarantee, for all or any of the
Obligations;




          (e) any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under
or in respect hereof or any Loan Document; or




          (f) any other circumstances which might otherwise constitute a defense available to, or a
discharge of, the Loan Parties.




          SECTION 10.17 Acknowledgements. Each Loan Party hereby (i) expressly acknowledges
the terms of this Agreement, (ii) ratifies and affirms its obligations under the Loan Documents
(including guarantees and security agreements) executed by such Loan Party and (iii) acknowledges,
renews and extends its continued liability under all such Loan Documents and agrees such Loan
Documents remain in full force and effect, including with respect to the obligations of the
Borrowers as modified by this Agreement. Each Loan Party further represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Bank and each of the Lenders that after
giving effect to this Agreement, neither the modification of the Original Credit Agreement effected
pursuant to this Agreement, nor the execution, delivery, performance or effectiveness of this
Agreement (a) impairs the validity, effectiveness or priority of the Liens granted pursuant to any
Loan Document (as such term is defined in the Original Credit Agreement), and such Liens continue
unimpaired with the same priority to secure repayment of all Obligations, whether heretofore or
hereafter incurred; or (b) requires that any new filings be made or other action taken to perfect
or to maintain the perfection of such Liens.




[Signature Pages Follow]




-121-









 





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



	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	/s/ James W. Pluntze
 	 
	 	 	Name:  	James W. Pluntze 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



S-1









 






	 	 	 	 	 
	 	AVASTA, INC.

CLEARBLUE TECHNOLOGIES MANAGEMENT, INC.

CLEARBLUE TECHNOLOGIES/ CHICAGO-WELLS, INC.

CLEARBLUE TECHNOLOGIES/LAS VEGAS, INC.

CLEARBLUE TECHNOLOGIES/LOS ANGELES, INC.

CLEARBLUE TECHNOLOGIES/MILWAUKEE, 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.

NAVISITE ACQUISITION SUBSIDIARY, INC.

JUPITER HOSTING, INC.

1100 TECHNOLOGIES, INC.

NAVI ACQUISITION CORP.

NETASPX, INC.

NETASPX ACQUISITION, INC.

NCS HOLDING COMPANY

NETWORK COMPUTING SERVICES, INC.

 	 
	 	By:  	/s/ James W. Pluntze
 	 
	 	 	Name:  	James W. Pluntze 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




S-2









 





	 	 	 	 	 
	 	CIBC
WORLD MARKETS CORP., as Sole Lead 

     Arranger, Documentation Agent and Bookrunner

 	 
	 	By:  	     /s/ Brian S. Perman
 	 
	 	 	Name:  	Brian S. Perman 	 
	 	 	Title:  	Managing Director 	 
	 
	 	CANADIAN IMPERIAL BANK OF COMMERCE,

     acting through its New York Agency, as Issuing

     Bank, Administrative Agent and Collateral Agent

 	 
	 	By:  	     /s/ Brian S. Perman
 	 
	 	 	Name:  	Brian S. Perman 	 
	 	 	Title:  	Authorized Signatory 	 
	 




S-3









 




	 	 	 	 	 
	 	CIT LENDING SERVICES CORPORATION,

     as Syndication Agent

 	 
	 	By:  	/s/
Joseph Junda	 
	 	 	Name:  	Joseph Junda	 
	 	 	Title:  	Vice President	 
	 




S-4









 





Annex I




Applicable Margin




	 	 	 	 	 	 	 	 	 
	 	 	Revolving Loans and
	Total	 	Term Loans
	Leverage Ratio	 	Libor	 	ABR
	Level I
	 	 	4.00	%	 	 	3.00	%
	3

3.0:1.0
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Level II
	 	 	3.50	%	 	 	2.50	%
	<3.0:1.0
	 	 	 	 	 	 	 	 






          Each change in the Applicable Margin shall be effective with respect to all Loans and
Letters of Credit outstanding on and after the date of delivery to the Administrative Agent of the
financial statements and certificates required by Section 5.01(a) or (b) and
Section 5.01(d), respectively, indicating such change until the date immediately preceding
the next date of delivery of such financial statements and certificates indicating another such
change. Notwithstanding the foregoing, the Leverage Ratio shall be deemed to be in Level I (i)
from the Original Closing Date to the date of delivery to the Administrative Agent of the financial
statements and certificates required by Section 5.01(a) or (b) and Section
5.01(d) for the fiscal period ended at least six months after the Original Closing Date, (ii)
at any time during which Borrower has failed to deliver the financial statements and certificates
required by Section 5.01(a) or (b) and Section 5.01(d), respectively, and
(iii) at any time during the existence of an Event of Default.




          In the event that any financial statement or Compliance Certificate delivered pursuant to
Section 5.01 is shown to be inaccurate (regardless of whether this Agreement or the Commitments are
in effect when such inaccuracy is discovered), and such inaccuracy, if corrected would have led to
a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin
applied for such Applicable Period, then (i) Borrower shall immediately deliver to the
Administrative Agent a correct Compliance Certificate for such Applicable Period, (ii) the
Applicable Margin shall be determined as if Level I were applicable for such Applicable Period, and
(iii) Borrower shall immediately pay to the Administrative Agent the additional interest owing as a
result of such increased Applicable Margin for such Applicable Period, which payment shall be
promptly applied by the Administrative Agent in accordance with the terms hereof. This paragraph
shall not limit the rights of the Administrative Agent and the Lenders hereunder.




 









 





Annex II




Amortization Table




	 	 	 	 	 
	 	 	Term Loan
	Date	 	Amount
	August 1, 2007

	 	$	225,000	 
	November 1, 2007

	 	$	275,000	 
	February 1, 2008

	 	$	275,000	 
	May 1, 2008

	 	$	275,000	 
	August 1, 2008

	 	$	275,000	 
	November 1, 2008

	 	$	275,000	 
	February 1, 2009

	 	$	275,000	 
	May 1, 2009

	 	$	275,000	 
	August 1, 2009

	 	$	275,000	 
	November 1, 2009

	 	$	275,000	 
	February 1, 2010

	 	$	275,000	 
	May 1, 2010

	 	$	275,000	 
	August 1, 2010

	 	$	275,000	 
	November 1, 2010

	 	$	275,000	 
	February 1, 2011

	 	$	275,000	 
	May 1, 2011

	 	$	275,000	 
	August 1, 2011

	 	$	275,000	 
	November 1, 2011

	 	$	275,000	 
	February 1, 2012

	 	$	275,000	 
	May 1, 2012

	 	$	275,000	 
	August 1, 2012

	 	$	275,000	 
	November 1, 2012

	 	$	275,000	 
	February 1, 2013

	 	$	275,000	 
	May 1, 2013

	 	$	103,725,000	 







 









 





Amended and Restated Credit Agreement

Refinancing Indebtedness

Schedule 1.01(a)



None.





 









 








Amended and Restated Credit Agreement

Subsidiary Guarantors

Schedule 1.01(b)





	•	 	Avasta, Inc.
	 
	•	 	ClearBlue Technologies Management, Inc.
	 
	•	 	Clearblue Technologies/Chicago-Wells, Inc.
	 
	•	 	Clearblue Technologies/Las Vegas, Inc.
	 
	•	 	Clearblue Technologies/Los Angeles, Inc.
	 
	•	 	Clearblue Technologies/Milwaukee, 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. owns 100% of






	 	•	 	ManagedOps.com, Inc.
	 
	 	•	 	Surebridge Acquisition Corp.
	 
	 	•	 	Surebridge Services, Inc.






	•	 	NaviSite Acquisition Subsidiary, Inc.
	 
	•	 	Navi Acquisition Corp.
	 
	•	 	netASPx, Inc. owns 100% of






	 	•	 	netASPx Acquisition, Inc.
	 
	 	•	 	NCS Holding Company owns 100% of




 









 












	 	•	 	Network Computing Services, Inc.






	•	 	Jupiter Hosting, Inc. owns 100% of






	 	•	 	1100 Technologies, Inc.




 









 











Amended and Restated Credit Agreement

Excluded Trade Payables and Accrued Liabilities

Schedule 1.01(c)



Accounts Payable




	 	 	 	 	 	 	 	 	 	 	 
	Vendor Name	 	Invoice Date	 	 	Invoice Number	 	Invoice Amt Due	 
	COLLINS COMPUTING
	 	31-Mar-07	 	118487	 	 	404.40	 
	COLLINS COMPUTING
	 	31-Mar-07	 	118461	 	 	11,557.60	 
	I SAM INC
	 	27-Mar-07	 	9688	 	 	292.92	 
	COMPLETE COMMUNICATIONS SYSTEMS
	 	24-Mar-07	 	1126	 	 	783.00	 
	HOLT CAT
	 	22-Mar-07	 	WI460032393	 	 	232.00	 
	I SAM INC
	 	20-Mar-07	 	9598	 	 	337.52	 
	I SAM INC
	 	20-Mar-07	 	9597	 	 	350.32	 
	I SAM INCORPORATED
	 	20-Mar-07	 	9595	 	 	912.67	 
	K2 PARTNERING
	 	20-Mar-07	 	9575	 	 	957.01	 
	BYINGTON, LINDA
	 	20-Mar-07	 	9633	 	 	1,231.46	 
	FRONTBRIDGE TECH INC
	 	20-Mar-07	 	6860010161	 	 	2,874.87	 
	GOOD TECHNOLOGY
	 	15-Mar-07	 	2993044	 	 	1,533.00	 
	PATTEN INDUSTRIES INC
	 	14-Mar-07	 	PM600126232	 	 	1,217.74	 
	London Borough of Tower Hamlet
	 	12-Mar-07	 	 	 	 	56,295.78	 
	London Borough of Tower Hamlet
	 	12-Mar-07	 	 	 	 	2,696.37	 
	I SAM INC
	 	13-Mar-07	 	9500	 	 	617.78	 
	I SAM INCORPORATED
	 	13-Mar-07	 	9523	 	 	940.68	 
	I SAM
	 	13-Mar-07	 	9569	 	 	1,362.97	 
	K2 PARTNERING
	 	6-Mar-07	 	9484	 	 	996.51	 
	I SAM
	 	6-Mar-07	 	9417	 	 	1,367.27	 
	I SAM
	 	6-Mar-07	 	9448	 	 	1,407.93	 
	CUSHMAN & WAKEFIELD, INC.
	 	1-Mar-07	 	MAR07 RENT	 	 	33,314.62	 
	COLLINS COMPUTING
	 	28-Feb-07	 	116866	 	 	404.40	 
	STEVENS CREEK D&R — ROGERS AVE
	 	28-Feb-07	 	60481850	 	 	585.01	 
	MTM TECH
	 	28-Feb-07	 	MC022396	 	 	6,426.00	 
	MTM TECH
	 	28-Feb-07	 	MC022358	 	 	9,030.00	 
	COLLINS COMPUTING
	 	28-Feb-07	 	116840	 	 	11,634.32	 
	WB MASON CO INC
	 	27-Feb-07	 	SCE843000	 	 	64.88	 
	I SAM INC
	 	27-Feb-07	 	9360	 	 	293.33	 
	K2 PARTNERING
	 	27-Feb-07	 	9393	 	 	759.82	 
	I SAM INC
	 	27-Feb-07	 	9361	 	 	1,742.54	 
	SOUTHLAND INDUSTRIES
	 	21-Feb-07	 	110509	 	 	937.25	 
	I SAM INC
	 	20-Feb-07	 	9200	 	 	265.48	 
	K2 PARTNERING
	 	20-Feb-07	 	9322	 	 	794.39	 
	I SAM
	 	20-Feb-07	 	9274	 	 	1,821.27	 
	I SAM
	 	20-Feb-07	 	9232	 	 	1,873.16	 
	FRONTBRIDGE TECH INC
	 	20-Feb-07	 	6860008859	 	 	2,990.70	 
	MTM TECH
	 	15-Feb-07	 	MC021405	 	 	920.16	 
	STRATEGIC TECHNOLOGY ASSOCIATE
	 	13-Feb-07	 	9227	 	 	752.48	 
	COMPUTERSHARE
	 	12-Feb-07	 	107210	 	 	916.91	 
	SWEAT-CHIPMAN, TAMMY
	 	6-Feb-07	 	9152	 	 	158.20	 
	SWIFT, PAUL
	 	6-Feb-07	 	9146	 	 	396.00	 
	I SAM INC
	 	6-Feb-07	 	9129	 	 	538.26	 
	K2 PARTNERING
	 	6-Feb-07	 	9188	 	 	726.34	 
	STRATEGIC TECHNOLOGY ASSOCIATE
	 	6-Feb-07	 	9182	 	 	827.97	 
	K2 PARTNERING
	 	6-Feb-07	 	9180	 	 	845.15	 
	COLLINS COMPUTING
	 	31-Jan-07	 	115253	 	 	404.40	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	Vendor Name	 	Invoice Date	 	 	Invoice Number	 	Invoice Amt Due	 
	COLLINS COMPUTING
	 	31-Jan-07	 	115225	 	 	11,314.40	 
	CONSULTING SOLUTIONS INTERNTNL
	 	30-Jan-07	 	9018	 	 	72.00	 
	BELLMORES
	 	26-Jan-07	 	1850	 	 	195.00	 
	FRONTBRIDGE TECH INC
	 	25-Jan-07	 	6860001407	 	 	195.51	 
	SOUTHLAND INDUSTRIES
	 	23-Jan-07	 	109794	 	 	937.25	 
	GUNSON, CULLEN
	 	23-Jan-07	 	8957	 	 	1,320.50	 
	KPMG LLP
	 	23-Jan-07	 	42656026	 	 	30,000.00	 
	FRONTBRIDGE TECH INC
	 	22-Jan-07	 	6860007373	 	 	2,702.79	 
	GOOD TECHNOLOGY
	 	15-Jan-07	 	2564564	 	 	1,316.00	 
	SWEAT-CHIPMAN, TAMMY
	 	9-Jan-07	 	8771	 	 	4,050.77	 
	WB MASON CO INC
	 	5-Jan-07	 	W31606	 	 	265.71	 
	SUN MICROSYSTEMS
	 	4-Jan-07	 	10903524	 	 	1,173.20	 
	COLLINS COMPUTING
	 	31-Dec-06	 	113772	 	 	404.40	 
	COLLINS COMPUTING
	 	31-Dec-06	 	113741	 	 	11,256.80	 
	WB MASON CO INC
	 	29-Dec-06	 	WKQ288	 	 	204.83	 
	EATON ELECTRICAL INC
	 	28-Dec-06	 	1488548	 	 	7,365.33	 
	FRONTBRIDGE TECH INC
	 	20-Dec-06	 	6860005761	 	 	2,685.74	 
	LIVINGSTON, CYNTHIA
	 	19-Dec-06	 	8658	 	 	895.44	 
	VERISIGN INC
	 	19-Dec-06	 	4000019992	 	 	5,160.00	 
	NEVADA LEGAL PRESS
	 	18-Dec-06	 	18-DEC-06	 	 	30.00	 
	NEVADA LEGAL PRESS
	 	18-Dec-06	 	19-DEC-06	 	 	30.00	 
	WAYNE F WHITTOW CITY TREASURER
	 	15-Dec-06	 	15-DEC-06	 	 	81.15	 
	AT&T
	 	15-Dec-06	 	7041937	 	 	500.00	 
	K2 PARTNERING SOLUTION
	 	12-Dec-06	 	8553	 	 	862.89	 
	K2 PARTNERING SOLUTION
	 	12-Dec-06	 	8552	 	 	864.30	 
	K2 PARTNERING SOLUTION
	 	12-Dec-06	 	8551	 	 	883.62	 
	SUN MICROSYSTEMS
	 	5-Dec-06	 	10894702	 	 	448.67	 
	SUN MICROSYSTEMS
	 	5-Dec-06	 	10894703	 	 	1,173.20	 
	FRONTBRIDGE TECH INC
	 	21-Nov-06	 	6860005266	 	 	2,395.43	 
	FRONTBRIDGE TECH INC
	 	20-Nov-06	 	6860004469	 	 	70.00	 
	SUN MICROSYSTEMS
	 	8-Nov-06	 	10889680	 	 	448.67	 
	SUN MICROSYSTEMS
	 	8-Nov-06	 	10889681	 	 	1,173.20	 
	WB MASON CO INC
	 	30-Oct-06	 	W08254	 	 	298.10	 
	INFORMATION TODAY INC
	 	25-Oct-06	 	39649	 	 	2,500.00	 
	GUNSON, CULLEN
	 	24-Oct-06	 	7740	 	 	2,138.24	 
	NEOTONIC (GOOGLE INC)
	 	20-Oct-06	 	REFUND OCT06	 	 	200.00	 
	GE CAPITAL
	 	20-Oct-06	 	REFUND OCT06	 	 	1,403.93	 
	WB MASON CO INC
	 	19-Oct-06	 	W70930	 	 	433.76	 
	AIG VALIC
	 	18-Oct-06	 	PO#17195	 	 	272.73	 
	COMMONWEALTH OF MASSACHUSETTS
	 	13-Oct-06	 	13-OCT-06 INT	 	 	125.00	 
	UNITEK
	 	10-Oct-06	 	77431	 	 	3,750.00	 
	MGE UPS SYS
	 	5-Oct-06	 	PO#17047	 	 	2,500.00	 
	Pure H20 Company
	 	2-Oct-06	 	 	 	 	135.57	 
	ROCCO ANTHONY SEYBOTH
	 	30-Sep-06	 	109063	 	 	22.55	 
	ROCCO ANTHONY SEYBOTH
	 	30-Sep-06	 	108765	 	 	24.25	 
	ROCCO ANTHONY SEYBOTH
	 	30-Sep-06	 	109081	 	 	26.75	 
	ROCCO ANTHONY SEYBOTH
	 	30-Sep-06	 	109082	 	 	33.15	 
	ROCCO ANTHONY SEYBOTH
	 	30-Sep-06	 	108671	 	 	59.80	 
	K2 PARTNERING SOLUTION
	 	30-Sep-06	 	7635	 	 	993.70	 
	K2 PARTNERING SOLUTION
	 	30-Sep-06	 	7636	 	 	995.70	 
	DATATEL GROUP INC
	 	30-Sep-06	 	108936	 	 	2,122.10	 
	JT PACKARD & ASSOC
	 	27-Sep-06	 	0036322IN	 	 	3,031.30	 
	JT PACKARD & ASSOC
	 	27-Sep-06	 	0036360IN	 	 	4,805.33	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	Vendor Name	 	Invoice Date	 	 	Invoice Number	 	Invoice Amt Due	 
	SUMMATIS
	 	20-Sep-06	 	0080420IN	 	 	1,105.32	 
	THATTIL, SAVIO
	 	19-Sep-06	 	7865	 	 	44.35	 
	CITY OF SAN JOSE
	 	18-Sep-06	 	18-SEP-06	 	 	690.00	 
	ALLRIGHT CENTRAL PARKING CORP
	 	13-Sep-06	 	6288011008	 	 	2,100.00	 
	ROCCO ANTHONY SEYBOTH
	 	31-Aug-06	 	107848	 	 	22.55	 
	ROCCO ANTHONY SEYBOTH
	 	31-Aug-06	 	107560	 	 	24.25	 
	ROCCO ANTHONY SEYBOTH
	 	31-Aug-06	 	107863	 	 	26.75	 
	LANGDALE, COREY
	 	31-Aug-06	 	7745	 	 	85.75	 
	MAZUR, MIKE
	 	31-Aug-06	 	31-AUG-06	 	 	1,918.00	 
	PAUL BETTENCOURT
	 	30-Aug-06	 	30-AUG-06	 	 	615.16	 
	National Registered Agents, Inc.
	 	22-Aug-06	 	22-AUG-06	 	 	710.00	 
	LADUKODI, BALA
	 	15-Aug-06	 	7624	 	 	35.00	 
	LANGDALE, COREY
	 	8-Aug-06	 	7532	 	 	42.75	 
	LANGDALE, COREY
	 	8-Aug-06	 	7533	 	 	203.18	 
	LANGDALE, COREY
	 	8-Aug-06	 	7529	 	 	207.88	 
	LANGDALE, COREY
	 	8-Aug-06	 	7531	 	 	223.46	 
	LANGDALE, COREY
	 	8-Aug-06	 	7530	 	 	224.73	 
	ELLIOTT, TERRY
	 	8-Aug-06	 	7584	 	 	742.74	 
	ELLIOTT, TERRY
	 	8-Aug-06	 	7583	 	 	782.98	 
	THINK AHEAD SOLUTIONS INC
	 	8-Aug-06	 	7590	 	 	1,233.10	 
	Clearblue Technologies
	 	31-Jul-06	 	 	 	 	22,964.93	 
	BEAR DATA SYS INC
	 	1-Aug-06	 	4848	 	 	-4,308.51	 
	BROADWING COMMUNICATIONS LLC
	 	1-Aug-06	 	6565AUG06	 	 	1,729.00	 
	ROCCO ANTHONY SEYBOTH
	 	31-Jul-06	 	106450	 	 	87.80	 
	EASTMAN KODAK
	 	21-Jul-06	 	REFUND JUL06	 	 	55.00	 
	GOOD TECHNOLOGY
	 	15-Jul-06	 	1764220	 	 	728.00	 
	PAYMAP
	 	14-Jul-06	 	REFUND JUL06	 	 	300.00	 
	FELL, PAULA
	 	10-Jul-06	 	7289	 	 	68.25	 
	FELL, PAULA
	 	10-Jul-06	 	7205	 	 	559.86	 
	CONTINUSERVE_
	 	10-Jul-06	 	7243	 	 	825.00	 
	SUN MICROSYSTEMS
	 	7-Jul-06	 	10869350	 	 	448.67	 
	SUN MICROSYSTEMS
	 	7-Jul-06	 	10869351	 	 	1,173.20	 
	Clearblue Technologies
	 	30-Jun-06	 	 	 	 	22,964.93	 
	COUGAR TECH
	 	27-Jun-06	 	7163	 	 	3,273.89	 
	WB MASON CO INC
	 	13-Jun-06	 	W81215	 	 	59.26	 
	Clearblue Technologies
	 	31-May-06	 	 	 	 	22,964.93	 
	SUN MICROSYSTEMS
	 	2-Jun-06	 	10859402	 	 	448.67	 
	SUN MICROSYSTEMS
	 	2-Jun-06	 	10859403	 	 	1,173.20	 
	WB MASON CO INC
	 	31-May-06	 	W44541	 	 	48.03	 
	POLIS, JIM
	 	31-May-06	 	6883	 	 	320.00	 
	FRONTBRIDGE TECH INC
	 	31-May-06	 	127151	 	 	3,061.79	 
	FELL, PAULA
	 	24-May-06	 	6865	 	 	71.48	 
	ELECTRIC PEN
	 	8-May-06	 	1805	 	 	1,000.00	 
	CUTSEY BUSINESS SYS
	 	8-May-06	 	REFUND MAY06	 	 	5,380.50	 
	Clearblue Technologies
	 	30-Apr-06	 	 	 	 	3,577.20	 
	SUN MICROSYSTEMS
	 	3-May-06	 	10852128	 	 	5,990.24	 
	SUN MICROSYSTEMS
	 	3-May-06	 	10852100	 	 	19,907.34	 
	MACGILLIVRAY, SCOTT
	 	2-May-06	 	6718	 	 	96.96	 
	SUN MICROSYSTEMS
	 	3-Apr-06	 	10847424	 	 	448.67	 
	SUN MICROSYSTEMS
	 	3-Apr-06	 	10847425	 	 	1,173.20	 
	SUN MICROSYSTEMS
	 	3-Apr-06	 	10847426	 	 	2,809.56	 
	SUN MICROSYSTEMS
	 	3-Apr-06	 	10847453	 	 	5,990.24	 
	SUN MICROSYSTEMS
	 	3-Apr-06	 	10847423	 	 	19,907.34	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	Vendor Name	 	Invoice Date	 	 	Invoice Number	 	Invoice Amt Due	 
	SUN MICROSYSTEMS
	 	1-Mar-06	 	10841804	 	 	897.34	 
	SUN MICROSYSTEMS
	 	1-Mar-06	 	10841805	 	 	1,173.20	 
	SUN MICROSYSTEMS
	 	1-Mar-06	 	10841807	 	 	2,809.56	 
	SUN MICROSYSTEMS
	 	1-Mar-06	 	10841852	 	 	5,990.24	 
	SUN MICROSYSTEMS
	 	1-Mar-06	 	10841802	 	 	20,621.58	 
	TRIDENT TRUST COMPANY
	 	27-Feb-06	 	NAVIREGISUSVRGNISLNDS	 	 	158.25	 
	Clearblue Technologies
	 	16-Feb-06	 	 	 	 	4,757.11	 
	COUGAR TECH
	 	3-Feb-06	 	60008ME	 	 	570.00	 
	SUN MICROSYSTEMS
	 	1-Feb-06	 	10838503	 	 	1,173.20	 
	SUN MICROSYSTEMS
	 	1-Feb-06	 	10838504	 	 	2,809.56	 
	SUN MICROSYSTEMS
	 	1-Feb-06	 	10838513	 	 	5,990.24	 
	SUN MICROSYSTEMS
	 	1-Feb-06	 	10838502	 	 	20,621.58	 
	 
	 	 	 	 	 	REGIS FEES FOR NAVI US	 	 	 	 
	TRIDENT TRUST COMPANY
	 	27-Jan-06	 	 VRG ISLNDS	 	 	1,280.22	 
	ROCKSTAR CAPITAL INC
	 	19-Jan-06	 	REFUND JAN06	 	 	2,133.60	 
	TODD, JOHN
	 	10-Jan-06	 	4856	 	 	85.00	 
	COMMONWEALTH OF MASSACHUSETTS
	 	9-Nov-05	 	INTPENTONMASSSLSTX	 	 	3,436.84	 
	DSI TECH
	 	9-Sep-05	 	REFUND SEP05	 	 	249.27	 
	Virginia Department of Taxation
	 	29-Jul-05	 	05NAVIUSETAX	 	 	7.78	 
	ILLINOIS DEPT OF REVENUE
	 	29-Jul-05	 	05CBTUSETAX	 	 	32.38	 
	UUNet
	 	13-Jul-05	 	 	 	 	984.32	 
	LAGARDE
	 	22-Jul-05	 	48006	 	 	14,660.62	 
	CUSHMAN & WAKEFIELD, INC.
	 	1-Jul-05	 	LATE FEES	 	 	4,767.59	 
	TRANSCONTINENTAL DIRECT LIST SVC
	 	27-Jun-05	 	PO#15007	 	 	7,150.00	 
	West Virginia State Tax Dept
	 	24-Jun-05	 	INTREPID2005	 	 	30.00	 
	GLAXOSMITHKLINE
	 	23-Jun-05	 	CUST REFUND	 	 	4,222.92	 
	COMMISSIONER OF REVENUE SVC
	 	17-Jun-05	 	LEXINGTONJAN05SLSTX	 	 	336.00	 
	COMMISSIONER OF REVENUE SVC
	 	17-Jun-05	 	LEXINGTONFEB05SLSTX	 	 	706.00	 
	COMMISSIONER OF REVENUE SVC
	 	17-Jun-05	 	LEXINGTONCORPMAR05	 	 	758.00	 
	MANHATTAN DA
	 	15-Mar-05	 	CUST REFUND MAR05	 	 	2,500.00	 
	CHARLES RIVER ASSOC INC
	 	14-Mar-05	 	CUST REFUND MAR05	 	 	1,127.00	 
	GALT ASSOC
	 	8-Mar-05	 	CUST REFUND MAR05	 	 	4,135.48	 
	GRAEBEL COMPANIES INC.
	 	10-Feb-05	 	6723827	 	 	350.30	 
	DiaCom Corporation
	 	25-Jan-05	 	CUST#825440767	 	 	1,152.47	 
	GRAEBEL COMPANIES INC.
	 	25-Jan-05	 	6693842	 	 	2,279.59	 
	US Search
	 	20-Jan-05	 	PO#125751	 	 	7,419.35	 
	Microsoft Business Solutions
	 	5-Jan-05	 	PO#14397	 	 	3,150.00	 
	Ituner Networks
	 	14-Dec-04	 	CR#110702	 	 	750.00	 
	GRAEBEL COMPANIES INC.
	 	9-Dec-04	 	6620197	 	 	4,183.06	 
	MICROSOFT LICENSING
	 	3-Dec-04	 	104431	 	 	99.81	 
	GRAEBEL COMPANIES INC.
	 	3-Dec-04	 	6609413	 	 	300.00	 
	GRAEBEL COMPANIES INC.
	 	30-Nov-04	 	6601016	 	 	660.80	 
	Vision Service Plan
	 	23-Nov-04	 	121911470004DEC04	 	 	128.58	 
	Vision Service Plan
	 	23-Nov-04	 	121911470002DEC04	 	 	140.31	 
	Vision Service Plan
	 	23-Nov-04	 	121911470003DEC04	 	 	2,183.06	 
	Vision Service Plan
	 	23-Nov-04	 	121911470001DEC04	 	 	4,763.99	 
	STANDARD LIFE INSURANCE CO. OF NEW YORK
	 	1-Nov-04	 	006422400001NOV04	 	 	460.92	 
	216 W JACKSON LLC
	 	1-Oct-04	 	OCT04 RENT	 	 	8,468.50	 
	CUSHMAN & WAKEFIELD, INC.
	 	1-Oct-04	 	OCT04 RENT	 	 	31,535.96	 
	Silverlink Communications
	 	17-Sep-04	 	REFUND ACCT#994290	 	 	3,072.67	 
	GRAEBEL COMPANIES INC.
	 	13-Sep-04	 	123692	 	 	9,154.55	 
	UPS
	 	1-Sep-04	 	CUST REFUND SEP04	 	 	39.45	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	Vendor Name	 	Invoice Date	 	 	Invoice Number	 	Invoice Amt Due	 
	GRAEBEL COMPANIES INC.
	 	24-Aug-04	 	6414005	 	 	502.50	 
	GRAEBEL COMPANIES INC.
	 	19-Aug-04	 	6404098	 	 	4,109.60	 
	 
	 	 	 	 	 	REFUND OF CREDIT	 	 	 	 
	Waterfront Communications
	 	4-Aug-04	 	BALANCE	 	 	3,394.92	 
	Cox Communications
	 	29-Jul-04	 	29-JUL-04	 	 	14,310.00	 
	Platinum Associates
	 	29-Jun-04	 	REFUND	 	 	95.00	 
	ERNST & YOUNG LLP
	 	25-May-04	 	US0122591078	 	 	33,035.00	 
	PeopleSoft USA, Inc.
	 	10-Jul-02	 	USA0006491	 	 	2,000.00	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	694,393.45	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accrued Expenses
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accrued Legal Related fees
	 	 	 	 	 	 	 	 	 	 
	Applied Theory Estate
	 	Through 7/31/07	 	 	 	 	258,529.86	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	258,529.86	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accrued Facility related expenses
	 	 	 	 	 	 	 	 	 	 
	Utilities
	 	Through 7/31/07	 	 	 	 	1,044,217.05	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	1,044,217.05	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accrued Other
	 	 	 	 	 	 	 	 	 	 
	Clearblue
Technologies (UK)
	 	Through 7/31/07	 	 	 	 	234,535.40	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	234,535.40	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	Total Accruals
	 	 	 	 	 	 	 	 	1,537,282.31	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	TOTAL AP AND ACCRUALS AGED 120+ DAYS
	 	 	 	 	 	 	 	 	2,231,675.76	 
	 
	 	 	 	 	 	 	 	 	 






 











 





Amended and Restated Credit Agreement

Governmental Approvals; Compliance with Laws

Schedule 3.03



None.






 









 








Amended and Restated Credit Agreement

Violations or Proceedings

Schedule 3.06(c)



Both NaviSite and a third party have filed applications to obtain a trademark on “National Labor
Exchange.” The third party currently uses this phrase on its website and objects to NaviSite’s use
of the phrase in press releases. NaviSite has obtained outside legal counsel with respect to this
matter.






 









 








Amended and Restated Credit Agreement

Material Agreements

Schedule 3.09





	1.	 	Quotation for Conxion Hosting Services between Symantec and Conxion Corporation dated
June 1, 2000.
	 
	2.	 	Comptroller Contract No. C000140 between the State of New York and ClearBlue
Technologies Management, Inc. dated November 30, 2000.






	 	a.	 	Amendment No. 1 dated May 2, 2001
	 
	 	b.	 	Amendment No. 2 dated October 5, 2001
	 
	 	c.	 	Amendment No. 3 dated July 24, 2002
	 
	 	d.	 	Amendment No. 4 dated November 12, 2002
	 
	 	e.	 	Amendment No. 5 dated March 25, 2003
	 
	 	f.	 	Amendment No. 6 dated September 24, 2003
	 
	 	g.	 	Amendment No. 7 dated January 5, 2004
	 
	 	h.	 	Amendment No. 8 dated July 1, 2004






	3.	 	Professional Services Agreement, dated as of August 16, 2005, by and between the New
York State Department of Labor and ClearBlue Technologies Management, Inc.






	4.	 	Master Services Agreement between Oracle Corporation and NaviSite, Inc. dated November
2, 2004.






	 	a.	 	Amendment No. 2 to the Master Services Agreement dated January 30, 2006
(signed by NaviSite only)






	5.	 	Master SiteHarbor Services Agreement between Wolters Kluwer U.S. Corporation and
NaviSite, Inc. dated November 21, 2000.






	 	a.	 	Amendment to Services Agreement dated September 26, 2001






	6.	 	Master Services Agreement between Level 3 Communications LLC and NaviSite, Inc. dated
June10, 2003.






	 	a.	 	Addendum No. 2 to the Master Services Agreement dated January 23, 2004.






	 	b.	 	Addendum No. 3 to the Master Services Agreement dated August 7, 2004.






	7.	 	Microsoft Services Provider License Agreement between NaviSite, Inc. and Microsoft
Licensing, GP dated June 6, 2006.






	 	a.	 	Amendment No. 1 to SPLA dated June 6, 2006.






	8.	 	Solution Provider Agreement between Microsoft Business Solutions Corporation and
NaviSite, Inc. dated March 1, 2005.






	9.	 	Microsoft Premier Master Support Agreement between Microsoft Corporation and NaviSite,
Inc. dated September 28, 1999.






	10.	 	Microsoft Direct Commercial Service License Agreement between Microsoft Corporation and
NaviSite, Inc. dated May 28, 1999.






	11.	 	Oracle License and Services Agreement between Oracle Corporation and NaviSite, Inc.
dated April 19, 2004 (and related Ordering Document amending the License and Services
Agreement).






	12.	 	Bandwidth Capacity Agreement between Global Crossing Bandwidth, Inc. and NaviSite, Inc.
dated May 12, 2004.






	 	a.	 	Amendment #1 to the Bandwidth Capacity Agreement dated December 10,
2004.






	 	b.	 	Amendment #2 to the Bandwidth Capacity Agreement dated September 7,
2005.






	 	c.	 	Amendment #3 to the Bandwidth Capacity Agreement dated December 14,
2006.






	13.	 	Master Services Agreement between N2N Commerce, Inc. and NaviSite, Inc. dated December
28, 2006.




 









 












	14.	 	Master Services Agreement between Quality Technology Services Holding, LLC and
NaviSite, Inc. dated March 14, 2007.






	15.	 	Master Services Agreement between Meggit PLC and NaviSite, Inc. dated March 28, 2007.






	16.	 	EMEA Master Standard Subcontracting Services Agreement between Hewlett Packard and
NaviSite, Inc. dated May 13, 2007.






	17.	 	Master Services Agreement between La Touraine, Inc. and Jupiter Hosting, Inc. dated
November 29, 2004.






	 	a.	 	Amended and Restated Agreement to the Master Services Agreement dated
June 1, 2006.






	 	b.	 	Amendment Agreement to the Master Services Agreement dated January 17,
2006.






	 	c.	 	Amendment No. 3 to the Master Services Agreement dated January 17,
2007.




 









 











Amended and Restated Credit Agreement

Environmental Matters

Schedule 3.18



None.





 









 








Amended and Restated Credit Agreement

Insurance

Schedule 3.19



See attached.






 









 








Amended and Restated Credit Agreement

Acquisition Documents

Schedule 3.22





	1.	 	Agreement and Plan of Merger






	 	a.	 	Exhibit A: Form of Certificate of Incorporation of Surviving
Corporation
	 
	 	b.	 	Exhibit B: Form of Bylaws of Surviving Corporation
	 
	 	c.	 	Exhibit C: Form of Escrow Agreement
	 
	 	d.	 	Exhibit D: Form of Exchange Agent Agreement
	 
	 	e.	 	Exhibit E: Form of Letter of Transmittal
	 
	 	f.	 	Exhibit F: Form of Registration Rights Agreement
	 
	 	g.	 	Exhibit G: Form of Termination Agreement
	 
	 	h.	 	Exhibit H: Form of Certificate of Designations






	2.	 	Company Disclosure Schedules






	3.	 	Parent Disclosure Schedules






	4.	 	Certificate of Designations






	5.	 	Registration Rights Agreement






	6.	 	Escrow Agreement






	7.	 	Exchange Agent Agreement






	8.	 	Information Statement and Letters of Transmittal






	9.	 	Termination Agreement






	10.	 	Certificate of Merger






	11.	 	Amended and Restated Certificate of Incorporation






	12.	 	Payoff Letter from Wells Fargo






	13.	 	Resignations of Board of Directors of netASPx, Inc. and its subsidiaries






	14.	 	Officer’s Certificate of NaviSite, Inc.






	15.	 	Officer’s Certificate of netASPx, Inc.






	16.	 	Secretary’s Certificate of NaviSite, Inc. and NSite Acquisition Corp., certifying as to
organizational documents, incumbency and resolutions






	17.	 	Secretary’s Certificate of netASPx, Inc. and each subsidiary, certifying as to
organizational documents, incumbency and resolutions






	18.	 	Written Consent of Board of Directors of NaviSite, Inc. authorizing merger






	19.	 	Written Consent of Board of Directors and sole stockholder of NSite Acquisition Corp.
authorizing merger






	20.	 	Written Consent of Board of Directors of netASPx, Inc. authorizing merger






	21.	 	Written Consent of Stockholders of netASPx, Inc. authorizing merger






	22.	 	Notice of Written Consent to Non-Consenting Stockholders of netASPx, Inc.






	23.	 	Good Standing certificate of netASPx, Inc. and each subsidiary






	24.	 	Preferred Stock Certificates of NaviSite, Inc.






	25.	 	Stock Certificates of NCS Holding Company, netASPx Acquisition, Inc., Network Computing
Services, and netASPx, Inc.






	26.	 	Statement of Closing Cash






	27.	 	Flow of Funds Memorandum






	28.	 	UCC Termination Statements






	29.	 	Documents for Formation of NSite Acquisition Corp.




 









 











Amended and Restated Credit Agreement

Local Counsel

Schedule 4.01(d)



Not applicable.






 









 








Amended and Restated Credit Agreement

Landlord Access Agreements

Schedule 4.01(k)(vi)




	 	 	 	 	 
	Location	 	Address	 	Type
	Andover, MA

	 	200 Minuteman Road
	 	Office
	Andover, MA

	 	400 Minuteman Road
	 	Data Center
	San Jose, CA

	 	2720 Zanker Road
	 	Data Center
	Los Angeles, CA

	 	1200 W 7th Street
	 	Data Center
	San Francisco, CA

	 	650 Townsend Street
	 	Data Center
	Syracuse, NY

	 	125 Elwood Davis Road
	 	Data Center
	Syracuse, NY

	 	224 Harrison Street
	 	Office
	New York, NY

	 	395 Hudson Street
	 	Data Center
	Chicago, IL

	 	725 S. Wells Street
	 	Data Center
	Oak Brook, IL

	 	800 Jorie Boulevard
	 	Data Center
	Vienna, VA

	 	8619 Westwood Center Drive
	 	Data Center
	Houston, TX

	 	1301 Fannin Street
	 	Data Center and Office
	Dallas, TX

	 	1950 Stemmons Freeway
	 	Data Center
	Las Vegas, NV

	 	7185 Pollock Drive
	 	Data Center
	Milwaukee, WI

	 	324 E Wisconsin Avenue
	 	Data Center
	Chicago, IL

	 	70 W. Madison Street
	 	Office
	Atlanta, GA

	 	5500 Interstate N. Parkway
	 	Office
	Santa Clara, CA

	 	1100 Space Park Drive
	 	Data Center and Office
	Santa Clara, CA

	 	3211 Scott Blvd.
	 	Office
	Herndon, VA

	 	13530 Dulles Technology Drive
	 	Office
	Stoneham, MA

	 	38 Montvale Ave.
	 	Office
	Minneapolis, MN

	 	1200 Washington Ave. South
	 	Data Center and Office






 









 






Amended and Restated Credit Agreement

Existing Indebtedness

Schedule 6.01(b)





	1.	 	Two unsecured promissory notes, dated June 13, 2002 issued by ClearBlue Technologies
Management, Inc. to Applied Theory Corporation in an aggregate principal amount of
$6,000,000.






	2.	 	Promissory Note dated October 1, 2006 issued by NaviSite to National City Vendor
Finance in an aggregate principal amount of $200,817.






	3.	 	Promissory Note dated May 1, 2006 issued by NaviSite to Hewlett Packard in an aggregate
principal amount of $58,216.






	4.	 	Promissory Note dated November 29, 2006 issued by NaviSite to AFCO — Weiner Company in
an aggregate principal amount of $31,221.






	5.	 	Reimbursement obligations to Silicon Valley Bank in connection with the fully cash
collateralized letters of credit in the aggregate face amount of $931,014.56. All letters
of credit are secured by Certificates of Deposit.




 









 











Amended and Restated Credit Agreement

Existing Liens

Schedule 6.02(c)





	1.	 	Cash and near cash items (in an amount not to exceed 110% of the obligations under the
Silicon Valley Bank letters of credit) securing reimbursement obligations under the Silicon
Valley Bank letters of credit.




 









 











Amended and Restated Credit Agreement

Existing Investments

Schedule 6.04(b)



None.





 











 





EXHIBIT A




[Form of]




ADMINISTRATIVE QUESTIONNAIRE



[BORROWER]



	 	 	 	 	 	 	 

	Agent Address:

	 	Canadian Imperial Bank of Commerce,
	 	Return form to:	 	 
	 

	 	 	 	 	 	 
	 

	 	acting through its New York agency,
	 	Telephone:	 	 
	 

	 	 	 	 	 	 
	 

	 	300 Madison Avenue
	 	 	 	 
	 

	 	New York, New York 10017
	 	Facsimile:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	E-mail:	 	 
	 

	 	 	 	 	 	 




It is very important that all of the requested information be completed accurately and that
this questionnaire be returned promptly. If your institution is sub-allocating its allocation,
please fill out an administrative questionnaire for each legal entity.



Legal Name of Lender to appear in Documentation:




 





	 	 	 

	Signature Block Information:
	 	 
	 

	 	 





	 	 	 	 	 	 	 	 	 

	 

	 	•
	 	Signing Amended and Restated Credit Agreement
	 	o      Yes
	 	o      No
	 
	 	 	 	 	 	 	 	 
	 

	 	•
	 	Coming in via Assignment
	 	o      Yes
	 	o      No






     Type of Lender:                                                             


(Bank,
Asset Manager, Broker/Dealer, CLO/CDO; Finance Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle, Other-
please specify)




	 	 	 

	Lender Parent:
	 	 
	 

	 	 





	 	 	 
	Domestic Address	 	Eurodollar Address
	 
	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 
	 	 
	 

	 	 





A-1









 






Contacts/Notification Methods: Borrowings, Paydowns, Interest, Fees, etc.




	 	 	 	 	 
	 	 	Primary Credit Contact	 	Secondary Credit Contact
	Name:
	 	 	 	 
	 

	 	 
	 	 
	Company:
	 	 	 	 
	 

	 	 
	 	 
	Title:
	 	 	 	 
	 

	 	 
	 	 
	Address:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	Telephone:
	 	 	 	 
	 

	 	 
	 	 
	Facsimile:
	 	 	 	 
	 

	 	 
	 	 
	E-Mail Address:
	 	 	 	 
	 

	 	 
	 	 





	 	 	 	 	 
	 	 	Primary Operations Contact	 	Secondary Operations Contact
	Name:
	 	 	 	 
	 

	 	 
	 	 
	Company:
	 	 	 	 
	 

	 	 
	 	 
	Title:
	 	 	 	 
	 

	 	 
	 	 
	Address:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	Telephone:
	 	 	 	 
	 

	 	 
	 	 
	Facsimile:
	 	 	 	 
	 

	 	 
	 	 
	E-Mail Address:
	 	 	 	 
	 

	 	 
	 	 





	 	 	 	 	 
	 	 	Bid Contact	 	L/C Contact
	Name:
	 	 	 	 
	 

	 	 
	 	 
	Company:
	 	 	 	 
	 

	 	 
	 	 
	Title:
	 	 	 	 
	 

	 	 
	 	 
	Address:
	 	 	 	 
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	Telephone:
	 	 	 	 
	 

	 	 
	 	 
	Facsimile:
	 	 	 	 
	 

	 	 
	 	 
	E-Mail Address:
	 	 	 	 
	 

	 	 
	 	 





A-2









 






Lender’s Domestic Wire Instructions




	 	 	 

	Bank Name:
	 	 
	 

	 	 
	ABA/Routing No.:
	 	 
	 

	 	 
	Account Name:
	 	 
	 

	 	 
	Account No.:
	 	 
	 

	 	 
	FFC Account Name:
	 	 
	 

	 	 
	FFC Account No.:
	 	 
	 

	 	 
	Attention:
	 	 
	 

	 	 
	Reference:
	 	 
	 

	 	 





 Lender’s Foreign Wire Instructions




	 	 	 

	Currency:
	 	 
	 

	 	 
	Bank Name:
	 	 
	 

	 	 
	Swift/Routing No.:
	 	 
	 

	 	 
	Account Name:
	 	 
	 

	 	 
	Account No.:
	 	 
	 

	 	 
	FFC Account Name:
	 	 
	 

	 	 
	FFC Account No.:
	 	 
	 

	 	 
	Attention:
	 	 
	 

	 	 
	Reference:
	 	 
	 

	 	 




Agent’s Wire Instructions



[The Agent’s wire instructions will be disclosed at the time of closing.]




	 	 	 

	Bank Name:
	 	 
	 

	 	 
	ABA/Routing No.:
	 	 
	 

	 	 
	Account Name:
	 	 
	 

	 	 
	Account No.:
	 	 
	 

	 	 
	FFC Account Name:
	 	 
	 

	 	 
	FFC Account No.:
	 	 
	 

	 	 
	Attention:
	 	 
	 

	 	 
	Reference:
	 	 
	 

	 	 





A-3









 





Tax Documents



NON-U.S. LENDER INSTITUTIONS:



I. Corporations:



If your institution is incorporated outside of the United States for U.S. federal income tax
purposes, and is the beneficial owner of the interest and other income it receives, you must
complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN
(Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected
to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental
Agency).



A U.S. taxpayer identification number is required for any institution submitting Form W-8ECI. It is
also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with
the U.S. Please refer to the instructions when completing the form applicable to your institution.
In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed
forms. An original tax form must be submitted.



II. Flow-Through Entities:



If your institution is organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-
U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign
Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding) must be completed
by the intermediary together with a withholding statement. Flow-through entities other than
Qualified Intermediaries are required to include tax forms for each of the underlying beneficial
owners.



Please refer to the instructions when completing this form. In addition, please be advised that
U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be
submitted.



U.S. LENDER INSTITUTIONS:



If your institution is incorporated or organized within the United States, you must complete and
return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be advised
that we request that you submit an original Form W-9.




Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax
form for your institution must be completed and returned prior to the first payment of income.
Failure to provide the proper tax form when requested may subject your institution to U.S. tax
withholding.





A-4











 





EXHIBIT B




[Form of]

Assignment and Assumption




     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”)
and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement defined below, receipt of a copy of
which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex
1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (the “Effective Date”),
(i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit
Agreement and any other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below (including
participations in any Letters of Credit included in such facilities) and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any person, whether known or unknown,
arising under or in connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the
“Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the
Assignor.



	 	 	 	 	 	 	 

	1.

	 	Assignor:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:	 	 	 	 
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]1]	 	 
	 
	 	 	 	 	 	 
	3.

	 	Borrower(s): 
	 	NaviSite, Inc.	 	 
	 
	 	 	 	 	 	 
	4.	 	Administrative Agent:  Canadian Imperial Bank of Commerce, acting through its New York agency, as the administrative agent
under the Credit Agreement
	 
	 	 	 	 	 	 
	5.	 	Credit Agreement: The Credit Agreement dated as of June 8, 2007 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among








 




			
	1	 	Select as applicable.
	 
	 	 	





B-1









 






	 	 	NaviSite, Inc., a Delaware corporation (“Borrower”), the Subsidiary Guarantors (such term
and each other capitalized term used but not defined herein having the meaning given it in
Article I of the Credit Agreement), the Lenders, CIBC WORLD MARKETS CORP., as sole lead
arranger (in such capacity, “Sole Lead Arranger”), documentation agent (in such capacity,
“Documentation Agent”) and 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”), administrative agent (in such capacity, “Administrative Agent”)
for the Lenders and collateral agent (in such capacity, “Collateral Agent”) for the Secured
Parties and Issuing Bank.






	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount	 	 	 	 	 	 	 
	 	 	of	 	 	Amount of	 	 	Percentage Assigned	 
	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	of	 
	Facility Assigned	 	for all Lenders	 	 	Assigned	 	 	Commitment/Loans2	 
	Term Loans
	 	$	 	 	 	$	 	 	 	 	%	 
	Revolving Loans
	 	$	 	 	 	$	 	 	 	 	%	 








 




			
	2	 	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.




B-2









 










     Effective
Date:
                    
___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]3


The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR

     [NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 



	 	 	 	 	 
	 	ASSIGNEE

     [NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	Consented to and Accepted:





NAVISITE, INC.

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



	 	 	 	 	 
	CANADIAN IMPERIAL BANK OF COMMERCE

     as Administrative Agent [and Issuing Bank]4

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 





 




			
	3	 	This date may not be fewer than 5 Business
days after the date of assignment unless the Administrative Agent otherwise
agrees.
	 
	4	 	Reference to Issuing Bank required for an
assignment of Revolving Commitments.




B-3









 










ANNEX 1 to Assignment and Assumption




[BORROWER]

CREDIT AGREEMENT




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of their Subsidiaries or Affiliates or any other person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of their
Subsidiaries or Affiliates or any other person of any of their respective obligations under any
Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the Person exercising discretion in making
its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v)
it has received a copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Sections 4.01(e) or 5.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, (vi) if it is not already a Lender under the Credit
Agreement, attached to the Assignment and Assumption an Administrative Questionnaire in the form of
Exhibit A to the Credit Agreement, (vii) the Administrative Agent has received a processing
and recordation fee of $3,500 as of the Effective Date and (viii) if it is a Foreign Lender,
attached to the Assignment and Assumption is any documentation required to be delivered by it
pursuant to Section 2.15 of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations that by the terms of the Loan Documents are required to be performed by it as a Lender.



 









 





     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts that have accrued to but excluding the Effective
Date and to the Assignee for amounts that have accrued from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be construed
in accordance with and governed by, the law of the State of New York without regard to conflicts of
principles of law that would require the application of the laws of another jurisdiction.



-2-









 





EXHIBIT C




[Form of]

BORROWING REQUEST




Canadian Imperial Bank of Commerce,

acting through its New York Agency,
  as
Administrative Agent

300 Madison Avenue

New York, New York 10017

Attention: [            ]




Re: [Borrower]




[Date]



Ladies and Gentlemen:




     Reference is made to the Amended and Restated Credit Agreement dated as of September 12, 2007
(as amended, amended and restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), amending and restating the Credit Agreement dated as of June 8, 2007 among
NaviSite, Inc., a Delaware corporation (“Borrower”), the Subsidiary Guarantors (such term and each
other capitalized term used but not defined herein having the meaning given it in Article I of the
Credit Agreement), the Lenders, CIBC WORLD MARKETS CORP., as sole lead arranger (in such capacity,
“Sole Lead Arranger”), documentation agent (in such capacity, “Documentation Agent”) and 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”), administrative agent (in such capacity,
“Administrative Agent”) for the Lenders and collateral agent (in such capacity, “Collateral Agent”)
for the Secured Parties and Issuing Bank. Borrower hereby gives you notice pursuant to
Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement, and
in that connection sets forth below the terms on which such Borrowing is requested to be made:



	 	 	 	 	 	 	 

	(A)

	 	Class of Borrowing
	 	[Term Borrowing]	 	 
	 

	 	 	 	[Revolving Borrowing]	 	 
	 
	 	 	 	 	 	 
	(B)

	 	Principal amount of Borrowing1	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	(C)

	 	Date of Borrowing (which is a Business Day)	 	 	 	 
	 

	 	 	 	 

	 	 








 




			
	1	 	ABR and LIBOR Loans must be in an amount that
is at least $250,000 and an integral multiple of $100,000 or equal to the
remaining available balance of the applicable Commitments.




C-1









 










	 	 	 	 	 	 	 

	(D)

	 	Type of Borrowing
	 	[ABR] [LIBOR]	 	 
	 
	 	 	 	 	 	 
	(E)

	 	Interest Period and the last day thereof2	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	(F)

	 	Funds are requested to be disbursed to Borrower’s account.
	 	Bank Name:	 	 
	 

	 	 	 	Address:	 	 
	 

	 	 	 	ABA:	 	 
	 

	 	 	 	Account Number:	 	 
	 

	 	 	 	Reference Number:	 	 






     Borrower hereby represents and warrants that the conditions to lending specified in
Sections 4.02(b) and (c) of the Credit Agreement are satisfied as of the date hereof.



[Signature Page Follows]






 




			
	2	 	Shall be subject to the definition of “Interest Period” in the Credit Agreement. Only applicable in the case of a LIBOR Borrowing.




C-2









 










	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	[Responsible Officer] 	 



C-3









 






	 	 	 	 	 



EXHIBIT D




[Form of]

COMPLIANCE CERTIFICATE





     I, [            ], the Chief Financial Officer of NaviSite, Inc. (in such capacity and not
in my individual capacity), hereby certify that, with respect to that certain Amended and Restated
Credit Agreement dated as of September 12, 2007 (as the same may be further amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; all of the
defined terms in the Credit Agreement are incorporated herein by reference), amending and restating
the Credit Agreement dated as of June 8, 2007 among NaviSite, Inc., a Delaware corporation, as
borrower (the “Borrower”), the Subsidiary Guarantors party thereto, the Lenders party thereto, CIBC
WORLD MARKETS CORP., as Sole Lead Arranger, Documentation Agent, and Bookrunner, CIT LENDING
SERVICES CORPORATION as Syndication Agent, and CANADIAN IMPERIAL BANK OF COMMERCE, acting through
its New York agency, as Administrative Agent and Collateral Agent:




     a. [Attached hereto as Schedule 1 are detailed calculations1
demonstrating compliance by [Borrower] [Subsidiary Guarantor[s]] with Sections 6.07(e) and
6.10 of the Credit Agreement (including the aggregate amount of Excluded Issuances for such
period and the uses therefor). [Borrower] [Subsidiary Guarantor[s]] [is][are] in compliance
with such Sections as of the date hereof.] [Attached hereto as Schedule 2 are
detailed calculations setting forth the Borrower’s Excess Cash Flow.]2 [Attached
hereto as Schedule 3 is the report of [accounting firm.]]3




     b. The Borrower was in compliance with each of the covenants set forth in Section
6.10 of the Credit Agreement at all times during and since [      ].




     c. No Default has occurred under the Credit Agreement which has not been previously
disclosed, in writing, to the Administrative Agent pursuant to a Compliance
Certificate.4





 




			
	1	 	To accompany annual and quarterly financial
statements only. Which calculations shall be in reasonable detail satisfactory
to the Administrative Agent and shall include, among other things, an
explanation of the methodology used in such calculations and a breakdown of the
components of such calculations.
	 
	2	 	To accompany annual financial statements only.
	 
	3	 	To accompany annual financial statements only.
The report must opine or certify that, with respect to its regular audit of
such financial statements, which audit was conducted in accordance with GAAP,
the accounting firm obtained no knowledge that any Default has occurred or, if
in the opinion of such accounting firm such a Default has occurred, specifying
the nature and extent thereof.
	 
	4	 	If a Default shall have occurred, an
explanation specifying the nature and extent of such Default shall be provided
on a separate page together with an explanation of the corrective action taken
or proposed to be taken with respect thereto (include, as applicable,
information regarding actions, if any, taken since prior certificate).




D-1









 










     Dated this [    ] day of [            ], 20[    ].



	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




D-2











 





SCHEDULE 1




Financial Covenants



	 	 	 	 	 	 	 

	(A) Section 6.10(a). Maximum Total Leverage Ratio	 	 	 	 
	 
	 	 	 	 	 	 
	I. The ratio of:	 	 	 	 
	 
	 	 	 	 	 	 
	(x) Consolidated Indebtedness as of [     ], 20[ ]:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	less outstanding principal amount of AppliedTheory Notes
to the extent of qualified escrowed cash	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	     Calculation of clause (x)	 	 	$	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	to (y) Consolidated EBITDA:	 	 	 	 
	 
	 	 	 	 	 	 
	Consolidated Net Income for such period	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	adjusted by adding thereto, in each case only to the
extent (and in the same proportion) deducted in
determining such Consolidated Net Income and without
duplication (and with respect to the portion of
Consolidated Net Income attributable to any Subsidiary of
Borrower only if a corresponding amount would be
permitted at the date of determination to be distributed
to Borrower by such Subsidiary without prior approval
(that has not been obtained)	 	 	 	 
	 
	 	 	 	 	 	 
	(a) Consolidated Interest Expense for such period (as
calculated in item II below),	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(b) Consolidated Amortization Expense for such period,	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(c) Consolidated Depreciation Expense for such period,	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(d) Consolidated Tax Expense for such period,	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(e) costs and expenses directly incurred in connection
with the Original Transactions and the Current
Transactions,	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(f) the aggregate amount of all other non-cash charges
reducing Consolidated Net Income (excluding any non-cash
charge that results in an accrual of a reserve for cash
charges in any future period) for such period,	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(g) non-cash stock based compensation expense incurred in
connection with any options or restricted stock issued by
Borrower in any Fiscal Year in connection with Borrower’s
stock incentive plan,	 	 	 	 
	 

	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 

	(h) employee severance expenses,	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(i) non-cash impairment charges taken in respect of
leases of real property and any related improvements
thereto, and	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	(j) expenses or charges incurred in connection with any
proposed acquisition or financing transaction, in each
case, which is not consummated.	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	subtracting therefrom the aggregate amount of all
non-cash items increasing Consolidated Net Income (other
than the accrual of revenue or recording of receivables
in the ordinary course of business) for such period.	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Consolidated EBITDA	 	$	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Other than for purposes of calculating Excess Cash Flow,
Consolidated EBITDA shall be calculated on a Pro Forma
Basis to give effect to any Permitted Acquisition
(including, without limitation, the netASPx Acquisition)
and Asset Sales (other than any dispositions in the
ordinary course of business) consummated at any time on
or after the first day of the Test Period and prior to
the date of determination as if each such Permitted
Acquisition had been effected on the first day of such
period and as if each such Asset Sale had been
consummated on the day prior to the first day of such
period.	 	 	 	 
	 
	 	 	 	 	 	 
	II. Consolidated Interest Expense:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	the total consolidated interest expense of Borrower and
its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	plus, without duplication	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(i) imputed interest on Capital Lease Obligations and
Attributable Indebtedness of Borrower and its
Subsidiaries for such period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(ii) commissions, discounts and other fees and charges
owed by Borrower or any of its Subsidiaries with respect
to letters of credit securing financial obligations,
bankers’ acceptance financing and receivables financings
for such period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 





-2-









 






	 	 	 	 	 	 	 

	 

	 	(iii) amortization of debt issuance costs, debt discount
or premium and other financing fees and expenses incurred
by Borrower or any of its Subsidiaries for such period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(iv) cash contributions to any employee stock ownership
plan or similar trust made by Borrower or any of its
Subsidiaries to the extent such contributions are used by
such plan or trust to pay interest or fees to any person
(other than Borrower or a Wholly Owned Subsidiary) in
connection with Indebtedness incurred by such plan or
trust for such period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(v) all interest paid or payable with respect to
discontinued operations of Borrower or any of its
Subsidiaries for such period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(vi) the interest portion of any deferred payment
obligations of Borrower or any of its Subsidiaries for
such period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(vii) all interest on any Indebtedness of Borrower or any
of its Subsidiaries of the type described in clause (f)
or (k) of the definition of “Indebtedness” as set forth
in the Credit Agreement for such period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	provided that (a) to the extent directly related to the
Original Transactions and the netASPx Transactions, debt
issuance costs, debt discount or premium and other
financing fees and expenses shall be excluded from the
calculation of Consolidated Interest Expense and (b)
Consolidated Interest Expense shall be calculated after
giving effect to Hedging Agreements (including associated
costs), but excluding unrealized gains and losses with
respect to Hedging Agreements.	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Consolidated Interest Expense shall be calculated on a
Pro Forma Basis to give effect to any Indebtedness
incurred, assumed or permanently repaid or extinguished
in connection with the Original Transactions and the
Current Transactions, any Permitted Acquisitions and
Asset Sales (other than any dispositions in the ordinary
course of business) as if such incurrence, assumption,
repayment or extinguishing had been effected on the first
day of such period.	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Consolidated Indebtedness less AppliedTheory Notes to the
extent of qualified escrowed amounts to Consolidated
EBITDA
	 	 	[   ]:1.00

	 
	 	 	 	 	 	 
	 

	 	Covenant Requirement
	 	 	No more than [   ]:1.00


	 
	 	 	 	 	 	 





-3-









 






	 	 	 	 	 	 	 

	(B) Section 6.10(b). Minimum Consolidated Fixed Charge Coverage
Ratio	 	 	 	 
	 
	 	 	 	 	 	 
	The ratio of:	 	 	 	 
	 
	 	 	 	 	 	 
	(x) Consolidated EBITDA for the four quarter period ended
[   ], 20[   ] (as set forth in item A(I)(y) above).	 	 	$	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	to (y) Consolidated Fixed Charges:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	for any period, the sum, without duplication of:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(a) Consolidated Interest Expense of Borrower and its
Subsidiaries (as set forth in item I(B) above) (provided that if
such period ends on or prior to July 31, 2008, the amount of such
interest expense shall be determined on an Annualized Basis)	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(b) the aggregate amount of Capital Expenditures for such period
(other than to the extent financed by Excluded Issuances or to
the extent made with Permitted UK Datasite Buildout
Indebtedness);	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(c) all cash payments in respect of income taxes made during such
period (net of any cash refund in respect of income taxes
actually received during such period);	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(d) the principal amount of all scheduled amortization payments
on all Indebtedness (including the principal component of all
Capital Lease Obligations, but excluding such amortization
payments on Indebtedness incurred to finance Capital Expenditures
included in clause (b) above in such period or any prior period)
of Borrower and its Subsidiaries for such period (as determined
on the first day of the respective period) (provided that if such
period ends on or prior to April 30, 2008, the amount of such
Indebtedness scheduled to be paid or prepaid shall be determined
on an Annualized Basis);	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(e) the product of (i) all dividend payments on any series of
Disqualified Capital Stock of Borrower or any of its Subsidiaries
(other than dividend payments to Borrower or any of its
Subsidiaries) multiplied by (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of
Borrower and its Subsidiaries, expressed as a decimal; and	 	 	 	 
	 

	 	 	 	 	 	 





-4-









 






	 	 	 	 	 	 	 

	 

	 	(f) the product of (i) all cash dividend payments on any
Preferred Stock (other than Disqualified Capital Stock) of
Borrower or any of its Subsidiaries (other than dividend payments
to Borrower or any of its Subsidiaries) multiplied by (ii) a
fraction, the numerator of which is one and the denominator of
which is one minus the then current combined federal, state and
local statutory tax rate of Borrower and its Subsidiaries,
expressed as a decimal.	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Consolidated Fixed Charges	 	 	$	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	     Consolidated EBITDA to Consolidated Fixed Charges
	 	 	[     ]:1.00

	 
	 	 	 	 	 	 
	 

	 	     Covenant Requirement
	 	 	Greater than or equal to [   ]:1.00







-5-









 






	 	 	 	 	 	 	 

	(C) Section 6.10(c). Maximum Capital Expenditures	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Capital Expenditures made during such fiscal year,
	 	 	$	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	less (x) the difference between the amount Capital Expenditures
made in the immediately preceding fiscal year and the maximum
amount of Capital Expenditures permitted for such immediately
preceding fiscal year (not exceeding 50% of such maximum amount
(without giving effect to any adjustments to the maximum amount as
set forth in footnote 2 below and clause (z) to the proviso to
Section 6.10(c) to the Credit Agreement))1	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Capital Expenditures
	 	 	$	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Covenant Requirement2
	 	 	No more than $[   ]









 




			
	1	 	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).
	 
	2	 	The covenant requirement for the maximum
amount set of Capital Expenditures set forth in the table in Section 6.10(c) of
the Credit Agreement above for any period (i) may be increased by the amount of
Net Cash Proceeds of Excluded Issuances designated for Capital Expenditures for
such period during such period and (ii) shall be exclusive of any Capital
Expenditures to the extent made with Permitted UK Datasite Buildout
Indebtedness




-6-









 










SCHEDULE 2




	 	 	 	 	 	 	 

	(A) Excess Cash Flow Calculation:	 	 	 	 
	 
	 	 	 	 	 	 
	Consolidated EBITDA for fiscal year ended [     ], 20
[   ] (as set forth in item A(I)(y) to Schedule 1 above)	 	 	$	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	minus, without duplication:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(a) Debt Service for such Excess Cash Flow Period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(b) any prepayments of Term Loans, and any prepayments of
Revolving Loans to the extent accompanied by corresponding
permanent reductions in the Revolving Commitments, during
such Excess Cash Flow Period, in each case other than (i)
any voluntary prepayments and (ii) amounts already reflected
in Debt Service; 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(c) Capital Expenditures during such Excess Cash Flow
Period (excluding Capital Expenditures made in such Excess
Cash Flow Period where a certificate in the form
contemplated by the following clause (d) was previously
delivered) that are paid in cash;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(d) Capital Expenditures that Borrower or any of its
Subsidiaries shall, during such Excess Cash Flow Period,
become obligated to make but that are not made during such
Excess Cash Flow Period; provided that Borrower shall
deliver a certificate to the Administrative Agent not later
than 90 days after the end of such Excess Cash Flow Period,
signed by a Responsible Officer of Borrower and certifying
that such Capital Expenditures will be made in the following
Excess Cash Flow Period	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(e) the aggregate amount of expenditures made in cash during
such period pursuant to Sections 6.04(e) and (i) of the
Credit Agreement (other than investments made with Excluded
Issuances);	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(f) taxes of Borrower and its Subsidiaries that were paid in
cash during such Excess Cash Flow Period or will be paid
within six months after the end of such Excess Cash Flow
Period and for which reserves have been established;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(g) the absolute value of the difference, if negative, of
the amount of Net Working Capital at the end of the prior
Excess Cash Flow Period (or the beginning of the Excess Cash
Flow Period in the case of the first Excess Cash Flow
Period) over the amount of Net Working Capital at the end of
such Excess Cash Flow Period;	 	 	 	 
	 

	 	 	 	 	 	 





-7-









 






	 	 	 	 	 	 	 

	 

	 	(h) losses excluded from the calculation of Consolidated Net
Income by operation of clause (c) or (h) of the definition
thereof (and as set forth in item A(I)(y) above) that are
paid in cash during such Excess Cash Flow Period; and	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(i) to the extent added to determine Consolidated EBITDA,
all items that did not result from a cash payment to
Borrower or any of its Subsidiaries on a consolidated basis
during such Excess Cash Flow Period; and	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(j) the aggregate amount of Permitted Acquisitions
(including, without limitation, the netASPx Acquisition)
made in cash during such period pursuant to Section 6.07(e);	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	provided that any amount deducted pursuant of any of the
foregoing clauses that will be paid after the close of such
Excess Cash Flow Period shall not be deducted again in a
subsequent Excess Cash Flow Period; plus, without
duplication:	 	 	 	 






	 	 	 	 	 	 	 

	 

	 	(i) the difference, if positive, of the amount of Net
Working Capital at the end of the prior Excess Cash Flow
Period (or the beginning of the Excess Cash Flow Period in
the case of the first Excess Cash Flow Period) over the
amount of Net Working Capital at the end of such Excess Cash
Flow Period;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(ii) all proceeds received during such Excess Cash Flow
Period of any Indebtedness to the extent used to finance any
Capital Expenditure or Permitted Acquisition (including,
without limitation, the netASPx Acquisition);	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(iii) to the extent any permitted Capital Expenditures
referred to in clause (d) above do not occur in the Excess
Cash Flow Period specified in the certificate of Borrower
provided pursuant to clause (d) above, such amounts of
Capital Expenditures that were not so made in the Excess
Cash Flow Period specified in such certificates;	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(iv) any return on investments received in cash (other than
from a Subsidiary) during such period, which investments
were made pursuant to Section 6.04(e) or (i) of the Credit
Agreement (other than investments made from Excluded
Issuances);	 	 	 	 
	 

	 	 	 	 	 	 





-8-









 





	 	 	 	 	 	 	 

	 

	 	(v) income or gain excluded from the calculation of
Consolidated Net Income by operation of clause (c) or (h) of
the definition thereof that is realized in cash during such
Excess Cash Flow Period (except to the extent such gain is
subject to Section 2.10(c), (d),
(e) or (f) of the Credit
Agreement);	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(vi) if deducted in the computation of Consolidated EBITDA,
interest income; and	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	(vii) to the extent subtracted in determining Consolidated
EBITDA, all items that did not result from a cash payment by
Borrower or any of its Subsidiaries on a consolidated basis
during such Excess Cash Flow Period.	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Excess Cash Flow	 	 	 	 
	 

	 	 	 	 	 	 






-9-











 





EXHIBIT E




[Form of]

INTEREST ELECTION REQUEST




Canadian Imperial Bank of Commerce,

acting through its New York Agency,

   as Administrative Agent

300 Madison Avenue

New York, New York 10017

Attention: [                    ]




[Date]




Re: [Borrower]




Ladies and Gentlemen:




     This Interest Election Request is delivered to you pursuant to Section 2.08 of the Credit
Agreement dated as of June 8, 2007 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”) among NaviSite, Inc., a Delaware corporation
(“Borrower”), the Subsidiary Guarantors (such term and each other capitalized term used but not
defined herein having the meaning given it in Article I of the Credit Agreement), the Lenders, CIBC
WORLD MARKETS CORP., as sole lead arranger (in such capacity, “Sole Lead Arranger”), documentation
agent (in such capacity, “Documentation Agent”) and 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”), administrative agent (in such capacity, “Administrative Agent”) for the
Lenders and collateral agent (in such capacity, “Collateral Agent”) for the Secured Parties and
Issuing Bank.



     Borrower hereby requests that on [                    ]1 (the “Interest Election Date”),




	 	1.	 	$[                    ] of the presently outstanding principal amount of the Loans originally made on [                    ],
	 
	 	2.	 	and all presently being maintained as [ABR Loans] [Eurodollar Loans],







 




			
	1 	 	Shall be a Business Day that is (a) the
date hereof in the case of a conversion into ABR Loans to the extent this
Interest Election Request is delivered to the Administrative Agent prior to
11:00 a.m., New York City time on the date hereof, otherwise the Business Day
following the date of delivery hereof, and (b) three Business Days following
the date hereof in the case of a conversion into/continuation of LIBOR Loans to
the extent this Interest Election Request is delivered to the Administrative
Agent prior to 11:00 a.m. New York City time on the date hereof, otherwise the
fourth Business Day following the date of delivery hereof, in each case.




E-1









 











	 	3.	 	be [converted into] [continued as],
	 
	 	4.	 	[LIBOR Loans having an Interest Period of [one/two/three/six[/nine/twelve] months] [ABR Loans].





     The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the proposed Interest Election Date, both before and after giving effect
thereto and to the application of the proceeds therefrom:




     (a) the foregoing [conversion] [continuation] complies with the terms and conditions of
the Credit Agreement (including, without limitation, Section 2.08 of the Credit Agreement);




     (b) no Default has occurred and is continuing, or would result from such proposed
[conversion] [continuation].



[Signature Page Follows]




E-2









 








     Borrower has caused this Interest Election Request to be executed and delivered by its duly
authorized officer as of the date first written above.



	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



E-3









 






	 	 	 	 	 



EXHIBIT F




[Form of]

JOINDER AGREEMENT





     Reference is made to the Credit Agreement, dated as of June 8, 2007 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among
NaviSite, Inc., a Delaware corporation (“Borrower”), the Subsidiary Guarantors (such term and each
other capitalized term used but not defined herein having the meaning given it in Article I of the
Credit Agreement), the Lenders, CIBC WORLD MARKETS CORP., as sole lead arranger (in such capacity,
“Sole Lead Arranger”), documentation agent (in such capacity, “Documentation Agent”) and 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”), administrative agent (in such capacity,
“Administrative Agent”) for the Lenders and collateral agent (in such capacity, “Collateral Agent”)
for the Secured Parties and Issuing Bank.



W I T N E S S E T H:



     WHEREAS, the Guarantors have entered into the Credit Agreement and the Security Agreement in
order to induce the Lenders to make the Loans and the Issuing Bank to issue Letters of Credit to or
for the benefit of Borrower;



     WHEREAS, pursuant to Section 5.11(b) of the Credit Agreement, each Subsidiary that was not in
existence on the date of the Credit Agreement is required to become a Guarantor under the Credit
Agreement by executing a Joinder Agreement. The undersigned Subsidiary (the “New Guarantor”) is
executing this joinder agreement (“Joinder Agreement”) to the Credit Agreement in order to induce
the Lenders to make additional Revolving Loans and the Issuing Bank to issue Letters of Credit and
as consideration for the Loans previously made and Letters of Credit previously issued.



     NOW, THEREFORE, the Administrative Agent, Collateral Agent and the New Guarantor hereby agree
as follows:



     1. Guarantee. In accordance with Section 5.11(b) of the Credit Agreement, the New Guarantor
by its signature below becomes a Guarantor under the Credit Agreement with the same force and
effect as if originally named therein as a Guarantor.



     2. Representations and Warranties. The New Guarantor hereby (a) agrees to all the terms and
provisions of the Credit Agreement applicable to it as a Guarantor thereunder and (b) represents
and warrants that the representations and warranties made by it as a Guarantor thereunder are true
and correct in all material respects (except that any representation and warranty that is qualified
as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and
as of the date hereof. Each reference to a Guarantor in the Credit Agreement shall be deemed to
include the New Guarantor. The New Guarantor hereby attaches supplements to [each of] the
schedules to the Credit Agreement applicable to it.



     3. Severability. Any provision of this Joinder Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or



F-1









 





unenforceability without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.




     4. Counterparts. This Joinder Agreement may be executed in counterparts, each of which shall
constitute an original. Delivery of an executed signature page to this Joinder Agreement by
facsimile transmission shall be as effective as delivery of a manually executed counterpart of this
Joinder Agreement.



     5. No Waiver. Except as expressly supplemented hereby, the Credit Agreement shall remain in
full force and effect.



     6. Notices. All notices, requests and demands to or upon the New Guarantor, any Agent or any
Lender shall be governed by the terms of Section 10.01 of the Credit Agreement.



     7. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.



[Signature Pages Follow]




F-2









 








     IN WITNESS WHEREOF, the undersigned have caused this Joinder Agreement to be duly executed and
delivered by their duly authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	[NEW GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Address for Notices:

 	 
	 
	 	CANADIAN IMPERIAL BANK OF COMMERCE, acting through
its New York Agency, as

Administrative Agent and Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



F-3









 






	 	 	 	 	 



[Note: Schedules to be attached.]





F-4









 








EXHIBIT G


[Form of]


LANDLORD WAIVER AND CONSENT AGREEMENT





     This LANDLORD WAIVER AND CONSENT AGREEMENT (this “Agreement”) is dated as of [mm/dd/yy] and
entered into by [NAME OF LANDLORD] (“Landlord”), to and for the benefit of CANADIAN IMPERIAL BANK
OF COMMERCE, acting through its New York agency, as collateral agent for the benefit of the Secured
Parties (“Lenders”) (in such capacity, “Collateral Agent”).


          RECITALS:



     WHEREAS, Landlord is the record title holder and owner of the real property described on
Exhibit A annexed hereto (the “Premises”);



     WHEREAS, [NAME OF GRANTOR], a [Type of Person] (“Tenant”), has possession of and occupies all
or a portion of the property described on Exhibit A;



     WHEREAS, Tenant’s interest in the Premises arises under the lease agreement (the “Lease”) more
particularly described on Exhibit B annexed hereto, pursuant to which Landlord has rights,
upon the terms and conditions set forth therein, to take possession of, and otherwise assert
control over, the Premises;



     WHEREAS, reference is made to that certain Credit Agreement, dated as of June [ ], 2007 (as
it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined
therein and not otherwise defined herein being used herein as therein defined), by and among
NAVISITE, INC., a Delaware corporation (“Company”), the Subsidiary Guarantors, the Lenders, CIBC
WORLD MARKETS CORP., as sole lead arranger, documentation agent and bookrunner, CIT LENDING
SERVICES CORPORATION, as syndication agent, and Collateral Agent, as issuing bank, as
administrative agent and collateral agent for the Secured Parties and the Issuing Bank pursuant to
which Tenant has executed a security agreement, mortgages, deeds of trust, deeds to secure debt and
assignments of rents and leases, and other collateral documents in relation to the Credit
Agreement;



     WHEREAS, Tenant’s repayment of the extensions of credit made by Lenders under the Credit
Agreement will be secured, in part, by all personal property, inventory, accounts, goods,
machinery, equipment, furniture and fixtures (together with all additions, substitutions,
replacements and improvements to, and proceeds of, the foregoing, collectively, the “Collateral”);
and



     WHEREAS, Collateral Agent has requested that Landlord execute this Agreement as a condition to
the extension of credit to Tenant under the Credit Agreement.



     NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby
represents and warrants to, and covenants and agrees with, Collateral Agent as follows:



G-1









 





     1. Landlord hereby (a) waives and releases unto Collateral Agent and its successors and
assigns any and all rights granted by or under any present or future laws to levy or distraint for
rent or any other charges which may be due to Landlord against the Collateral, and any and all
other claims, liens and demands of every kind which it now has or may hereafter have against the
Collateral, and (b) agrees that any rights it may have in or to the Collateral, no matter how
arising (to the extent not effectively waived pursuant to clause (a) of this paragraph, shall be
second and subordinate to the rights of Collateral Agent in respect thereof. Landlord acknowledges
that the Collateral is and will remain personal property and not fixtures even though it may be
affixed to or placed on the Premises.



     2. Landlord certifies that (a) Landlord is the landlord under the Lease, (b) the Lease is in
full force and effect and has not been amended, modified, or supplemented except as set forth on
Exhibit B annexed hereto, (c) to the knowledge of Landlord, there is no defense, offset,
claim or counterclaim by or in favor of Landlord against Tenant under the Lease or against the
obligations of Landlord under the Lease, (d) no notice of default has been given under or in
connection with the Lease which has not been cured, and Landlord has no knowledge of the occurrence
of any other default under or in connection with the Lease, and (e) except as disclosed to
Collateral Agent, no portion of the Premises is encumbered in any way by any deed of trust or
mortgage lien or ground or superior lease.



     3. Landlord consents to the installation or placement of the Collateral on the Premises, and
Landlord grants to Collateral Agent a license to enter upon and into the Premises to do any or all
of the following with respect to the Collateral: assemble, have appraised, display, remove,
maintain, prepare for sale or lease, repair, transfer, or sell (at public or private sale). In
entering upon or into the Premises, Collateral Agent hereby agrees to indemnify, defend and hold
Landlord harmless from and against any and all claims, judgments, liabilities, costs and expenses
incurred by Landlord caused solely by Collateral Agent’s entering upon or into the Premises and
taking any of the foregoing actions with respect to the Collateral. Such costs shall be limited to
any damage to the Premises made by Collateral Agent in severing and/or removing the Collateral
therefrom and will not include any consequential damages. Collateral Agent shall not be liable for
any diminution in value of the Premises caused by the absence of Collateral actually removed or by
the need to replace the Collateral after such removal.



     4. Landlord agrees that it will not prevent Collateral Agent or its designee from entering
upon the Premises at all reasonable times to inspect or remove the Collateral. In the event that
Landlord has the right to, and desires to, obtain possession of the Premises (either through
expiration of the Lease or termination thereof due to the default of Tenant thereunder), Landlord
will deliver notice (the “Landlord’s Notice”) to Collateral Agent to that effect. Within the
120-day period after Collateral Agent receives the Landlord’s Notice (the “Standstill
Period”), Collateral Agent shall have the right, but not the obligation, to cause the
Collateral to be removed from the Premises. During such 120-day period, Landlord will not remove
the Collateral from the Premises nor interfere with Collateral Agent’s actions in removing the
Collateral from the Premises or Collateral Agent’s actions in otherwise enforcing its security
interest in the Collateral. Upon the request of Collateral Agent made on or prior to the end of
the Standstill Period, Landlord agrees to enter into a new lease with Collateral Agent (or its
nominee) on the same terms and conditions as the Lease provided Collateral Agent has theretofore
cured all monetary defaults (if any) under the Lease. Collateral Agent shall have the



G-2









 





right, but not the obligation, during the Standstill Period, to cure any such default and Landlord shall
accept any such cure by Collateral Agent or Lessee. If, during the Standstill Period, Collateral
Agent or Lessee or any other Person cures any such default, then Landlord shall rescind the notice
of default. Notwithstanding anything to the contrary in this paragraph, Collateral Agent shall at
no time have any obligation to remove the Collateral from the Premises.




     5. In the event of a termination, disaffirmance or rejection of the Lease for any reason,
including, without limitation, pursuant to any laws (including any bankruptcy or other insolvency
laws) by Tenant or the termination of the Lease for any reason by Landlord, Landlord will give the
Collateral Agent the right, within sixty (60) days of such event, provided all monetary defaults
under the Lease have been cured, to enter into a new lease of the Premises, in the name of the
Collateral Agent (or a designee to be named by the Collateral Agent at the time), for the remainder
of the term of the Lease and upon all of the terms and conditions thereof, or, if the Collateral
Agent shall elect not to exercise such right (such election to be made by Collateral Agent at its
sole discretion).



     6. Notwithstanding any provision to the contrary contained in the Lease, any acquisition of
Tenant’s interest by Collateral Agent, its nominee, or the purchaser at any foreclosure sale
conducted by Collateral Agent shall not create a default under, or require Landlord’s consent
under, the Lease.



     7. The terms and provisions of this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of Landlord (including, without limitation, any successor owner of
the Premises) and Collateral Agent. Landlord will disclose the terms and conditions of this
Agreement to any purchaser or successor to Landlord’s interest in the Premises.



     8. Landlord shall send to Collateral Agent a copy of any notice of default under the Lease
sent by Landlord to Tenant. In addition, Landlord shall send to Collateral Agent a copy of any
notice received by Landlord of a breach or default under any other lease, mortgage, deed of trust,
security agreement or other instrument to which Landlord is a party which may affect Landlord’s
rights in, or possession of, the Premises.



     9. All notices to Collateral Agent under this Agreement shall be in writing and sent to
Collateral Agent at its address set forth on the signature page hereof by telefacsimile, by United
States mail, or by overnight delivery service.



     10. The provisions of this Agreement shall continue in effect until Landlord shall have
received Collateral Agent’s written certification that all amounts advanced under the Credit
Agreement have been paid in full.



     11. This Agreement and the rights and obligations of the parties hereunder shall be governed
by, and shall be construed and enforced in accordance with, the internal laws of the State of New
York, without regard to conflicts of laws principles.



[Remainder of page intentionally left blank]




G-3









 









IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and delivered as
of the day and year first set forth above.




	 	 	 	 	 
	 	[NAME OF LANDLORD]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	                 
                                                              



                 
                                                              



                 
                                                              


Attention:


Telecopier:

 	 
	 	 	 
	 	 	 
	 	 	 
	 




     By its acceptance hereof, as of the day and year first set forth above, Collateral Agent
agrees to be bound by the provisions hereof.



	 	 	 	 	 
	 	CANADIAN IMPERIAL BANK OF 

COMMERCE, acting through its New 

York agency, as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	
                 
                                                              



                 
                                                              



                 
                                                              


Attention:


Telecopier:

 	 
	 	 	 
	 	 	 
	 	 	 



G-4









 






	 	 	 	 	 



EXHIBIT A TO

LANDLORD WAIVER AND CONSENT




Legal Description of Premises:




G-5









 








EXHIBIT B TO

LANDLORD WAIVER AND CONSENT




Description of Lease:






G-6









 








EXHIBIT H




[Form of]

LC REQUEST [AMENDMENT]




Dated (1)





     Canadian Imperial Bank of Commerce, acting through its New York agency, as Administrative
Agent under the Credit Agreement (as amended, modified or supplemented from time to time, the
“Credit Agreement”), dated as of June 8, 2007, among NaviSite, Inc., the Subsidiary Guarantors, the
Lenders from time to time party thereto, CIBC World Markets Corp., as Sole Lead Arranger,
Documentation Agent and Bookrunner, CIT Lending Services Corporation, as Syndication Agent and
Canadian Imperial Bank of Commerce, acting through its New York agency, as Administrative Agent and
Issuing Bank for the Lenders and as Collateral Agent for the Secured Parties and the Issuing Bank,



300 Madison Avenue

New York, New York 10017

Attention: [                              ]

[Name and Address of Issuing Bank

if different from Administrative Agent]




Ladies and Gentlemen:




     We hereby request that [name of proposed Issuing Bank], as Issuing Bank under the Credit
Agreement, [issue] [amend] [renew] [extend] [a] [an existing] [Standby] [Commercial] Letter of
Credit for the account of the undersigned(2) on (3) (the “Date of
[Issuance] [Amendment] [Renewal] [Extension]”) in the aggregate stated amount of (4).
[Such Letter of Credit was originally issued on [date].] The requested Letter of Credit [shall be]
[is] denominated in [Dollars] [Alternate Currency].



     For purposes of this LC Request, unless otherwise defined herein, all capitalized terms used
herein which are defined in the Credit Agreement shall have the respective meaning provided
therein.





 




			
	1	 	Date of LC Request.
	 
	2	 	Note that if the LC Request is for the account
of a Subsidiary, Borrower shall be a co-applicant, and be jointly and severally
liable, with respect to each Letter of Credit issued for the account or in
favor of any Subsidiary.
	 
	3	 	Date of Issuance [Amendment] [Renewal]
[Extension] which shall be at least five Business Days after the date of this
LC Request, if this LC Request is delivered to the Issuing Bank by 11:00 a.m.,
New York City time (or such shorter period as is acceptable to the Issuing
Bank).
	 
	4	 	Aggregate initial stated amount [and currency] of Letter of Credit.




H-1









 










     The beneficiary of the requested Letter of Credit [will be] [is] (5), and such
Letter of Credit [will be] [is] in support of (6) and [will have] [has] a stated
expiration date of (7). [Describe the nature of the amendment, renewal or extension.]



     We hereby certify that:




     (1) [Each of Borrower and each other Loan Party is in compliance in all material
respects with all the terms and provisions set forth in each Loan Document on its part to be
observed or performed, and, as of today and at the time of and immediately after giving
effect to the [issuance] [amendment] [renewal] [extension] of the Letter of Credit requested
herein, no Default has or will have occurred and be continuing.




     (2) Each of the representations and warranties made by any Loan Party set forth in any
Loan Document are true and correct in all material respects (except that any representation
and warranty that is qualified as to “materiality” or “Material Adverse Effect” is true and
correct in all respects) on and as of today’s date and with the same effect as though made
on and as of today’s date, except to the extent such representations and warranties
expressly relate to an earlier date.




     (3) After giving effect to the request herein, the LC Exposure will not exceed the LC
Commitment and the total Revolving Exposures will not exceed [the lesser of (A)] the total
Revolving Commitments [and (B) the total Revolving Commitments multiplied by the Borrowing
Base then in effect].




     Copies of all relevant documentation with respect to the supported transaction are attached hereto.



	 	 	 	 	 
	 	[                                                               ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	5	 	Insert name and address of beneficiary.
	 
	6	 	Insert description of the obligation to which
it relates in the case of Standby Letters of Credit and a description of the
commercial transaction which is being supported in the case of Commercial
Letters of Credit.
	 
	7	 	Insert last date upon which drafts may be
presented which may not be later than (i) in the case of a Standby Letter of
Credit, (x) the date which is one year after the date of the issuance of such
Standby Letter of Credit (or, in the case of any renewal or extension thereof,
one year after such renewal or extension) and (y) the Letter of Credit
Expiration Date and (ii) in the case of a Commercial Letter of Credit, (x) the
date that is 180 days after the date of issuance of such Commercial Letter of
Credit (or, in the case of any renewal or extension thereof, 180 days after
such renewal or extension) and (y) the Letter of Credit Expiration Date.




H-2









 










EXHIBIT I




[Form of]

LENDER ADDENDUM





     Reference is made to the Amended and Restated Credit Agreement dated as of September 12, 2007
(as the same may be further amended, amended and restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), amending and restating the Credit Agreement dated as of June
8, 2007 among NaviSite, Inc., a Delaware corporation (“Borrower”), the Subsidiary Guarantors (such
term and each other capitalized term used but not defined herein having the meaning given it in
Article I of the Credit Agreement), the Lenders, CIBC WORLD MARKETS CORP., as sole lead arranger
(in such capacity, “Sole Lead Arranger”), documentation agent (in such capacity, “Documentation
Agent”) and 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”),
administrative agent (in such capacity, “Administrative Agent”) for the Lenders and collateral
agent (in such capacity, “Collateral Agent”) for the Secured Parties and Issuing Bank.



     Upon execution and delivery of this Lender Addendum by the parties hereto as provided in
Section 10.15 of the Credit Agreement, the undersigned hereby becomes a Lender thereunder having
the Commitment set forth in Schedule 1 hereto, effective as of the Effective Date.



     THIS LENDER ADDENDUM SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.



     This Lender Addendum may be executed by one or more of the parties hereto on any number of
separate counterparts, and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.



I-1









 





     IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed
and delivered by their proper and duly authorized officers as of this            day of
[               ], 200[ ].



	 	 	 	 	 
	 	 	, 
	    	
as a Lender

[Please type legal name of Lender above]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	[If second signature is necessary:]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



I-2









 






	 	 	 	 	 



Accepted and agreed:




NAVISITE, INC.




	 	 	 	 	 
	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York Agency, as

Collateral Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	 	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



I-3









 






	 	 	 	 	 



Schedule 1




COMMITMENTS AND NOTICE ADDRESS




	 	 	 	 	 	 	 

	1.

	 	Name of Lender:
	 	                                             
	 	 
	 

	 	Notice Address:
	 	                                             
	 	 
	 

	 	 	 	                                             
	 	 
	 

	 	 	 	                                             
	 	 
	 

	 	Attention:
	 	                                             
	 	 
	 

	 	Telephone:
	 	                                             
	 	 
	 

	 	Facsimile:
	 	                                             
	 	 
	 
	 	 	 	 	 	 
	2.

	 	Commitment:
	 	                                             
	 	 






I-4









 






EXHIBIT J-1




[Form of]

TERM NOTE




	 	 	 

	$                            

	 	New York, New York
	 

	 	[Date]






     FOR VALUE RECEIVED, the undersigned, NaviSite, Inc., a Delaware corporation (“Borrower”),
hereby promises to pay to the order of [                                   ] (the
“Lender”) on the Term Loan Maturity Date (as defined in the Credit Agreement referred to below) in
lawful money of the United States and in immediately available funds, the principal amount of
                    DOLLARS ($                    ), or, if less, the aggregate unpaid principal amount of all
Term Loans of the Lender outstanding under the Credit Agreement referred to below, which sum shall
be due and payable in such amounts and on such dates as are set forth in the Credit Agreement.
Borrower further agrees to pay interest in like money at such office specified in Section 2.14 of
the Credit Agreement on the unpaid principal amount hereof from time to time from the date hereof
at the rates, and on the dates, specified in Section 2.06 of such Credit Agreement.



     The holder of this Note may endorse and attach a schedule to reflect the date, Type and amount
of each Term Loan of the Lender outstanding under the Credit Agreement, the date and amount of each
payment or prepayment of principal hereof, and the date of each interest rate conversion or
continuation pursuant to Section 2.08 of the Credit Agreement and the principal amount subject
thereto; provided that the failure of the Lender to make any such recordation (or any error in such
recordation) shall not affect the obligations of Borrower hereunder or under the Credit Agreement.



     This Note is one of the Notes referred to in the Credit Agreement dated as of June 8, 2007 (as
amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Borrower, the Subsidiary Guarantors, the Lenders, CIBC WORLD MARKETS CORP, as
sole lead arranger, documentation agent and bookrunner, CIT LENDING SERVICES CORPORATION, as
syndication agent and CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New York agency, as
administrative agent for the Lenders, collateral agent for the Secured Parties and Issuing Bank and
is subject to the provisions thereof and is subject to optional and mandatory prepayment in whole
or in part as provided therein. Terms used herein which are defined in the Credit Agreement shall
have such defined meanings unless otherwise defined herein or unless the context otherwise
requires.



     This Note is secured and guaranteed as provided in the Credit Agreement and the Security
Documents. Reference is hereby made to the Credit Agreement and the Security Documents for a
description of the properties and assets in which a security interest has been granted, the nature
and extent of the security and guarantees, the terms and conditions upon which the security
interest and each guarantee was granted and the rights of the holder of this Note in respect
thereof.



     Upon the occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided therein.



J-1-1









 





     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



     THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE CREDIT AGREEMENT.
TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT
PURSUANT TO THE TERMS OF THE CREDIT AGREEMENT.



     THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION.



[Signature Page Follows]




J-1-2









 








	 	 	 	 	 
	 	NAVISITE, INC.,

      as Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



J-1-3









 






	 	 	 	 	 



EXHIBIT J-2




[Form of]

REVOLVING NOTE




	 	 	 

	$                             

	 	New York, New York
	 

	 	[Date]






     FOR VALUE RECEIVED, the undersigned, NaviSite, Inc., a Delaware corporation (“Borrower”),
hereby promises to pay to the order of [                                             ] (the
“Lender”) on the Revolving Maturity Date (as defined in the Credit Agreement referred to below), in
lawful money of the United States and in immediately available funds, the principal amount of the
lesser of (a)                      DOLLARS ($                    ) and (b) the aggregate unpaid principal amount of
all Revolving Loans of the Lender outstanding under the Credit Agreement referred to below.
Borrower further agrees to pay interest in like money at such office specified in Section 2.14 of
the Credit Agreement on the unpaid principal amount hereof from time to time from the date hereof
at the rates, and on the dates, specified in Section 2.06 of such Credit Agreement.



     The holder of this Note may endorse and attach a schedule to reflect the date, Type and amount
of each Revolving Loan of the Lender outstanding under the Credit Agreement, the date and amount of
each payment or prepayment of principal hereof, and the date of each interest rate conversion or
continuation pursuant to Section 2.08 of the Credit Agreement and the principal amount subject
thereto; provided that the failure of the Lender to make any such recordation (or any error in such
recordation) shall not affect the obligations of Borrower hereunder or under the Credit Agreement.



     This Note is one of the Notes referred to in the Credit Agreement dated as of June 8, 2007 (as
amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Borrower, the Subsidiary Guarantors, the Lenders, CIBC WORLD MARKETS CORP, as
sole lead arranger, documentation agent and bookrunner, CIT LENDING SERVICES CORPORATION, as
syndication agent and CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New York agency, as
administrative agent for the Lenders, collateral agent for the Secured Parties and Issuing Bank and
is subject to the provisions thereof and is subject to optional and mandatory prepayment in whole
or in part as provided therein. Terms used herein which are defined in the Credit Agreement shall
have such defined meanings unless otherwise defined herein or unless the context otherwise
requires.



     This Note is secured and guaranteed as provided in the Credit Agreement and the Security
Documents. Reference is hereby made to the Credit Agreement and the Security Documents for a
description of the properties and assets in which a security interest has been granted, the nature
and extent of the security and guarantees, the terms and conditions upon which the security
interest and each guarantee was granted and the rights of the holder of this Note in respect
thereof.



     Upon the occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided therein.



J-2-1









 





     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



     THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE CREDIT AGREEMENT.
TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT
PURSUANT TO THE TERMS OF THE CREDIT AGREEMENT.



     THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION.



[Signature Page Follows]




J-2-2









 








	 	 	 	 	 
	 	NAVISITE, INC.,

      as Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




J-2-3











 





EXHIBIT K-1



 [Form of]

PERFECTION CERTIFICATE




     Reference is hereby made to (i) that certain Security Agreement dated as of June 8, 2007 (the
“Security Agreement”), between Navisite, Inc., a Delaware corporation (“Borrower”),
the Guarantors party thereto (collectively, the “Guarantors”) and the Collateral Agent (as
hereinafter defined) and (ii) that certain Amended and Restated Credit Agreement dated as of
September [ ], 2007 (the “Credit Agreement”) among the Company, the Guarantors, certain
other parties thereto and Canadian Imperial Bank of Commerce, as Collateral Agent (in such
capacity, the “Collateral Agent”). Capitalized terms used but not defined herein have the
meanings assigned in the Credit Agreement.



     As used herein, the term “Companies” means Borrower and each of its Subsidiaries.



     The undersigned hereby certify to the Collateral Agent as follows:



     1. Names.



     (a) The exact legal name of each Company, as such name appears in its respective certificate
of incorporation or any other organizational document, is set forth in Schedule 1(a). Each
Company is (i) the type of entity disclosed next to its name in Schedule 1(a) and (ii) a
registered organization except to the extent disclosed in Schedule 1(a). Also set forth in
Schedule 1(a) is the organizational identification number, if any, of each Company that is
a registered organization, the Federal Taxpayer Identification Number of each Company and the
jurisdiction of formation of each Company.



     (b) Set forth in Schedule 1(b) hereto is any other corporate or organizational names
each Company has had in the past five years, together with the date of the relevant change.



     (c) Set forth in Schedule 1(c) is a list of all other names used by each Company, or
any other business or organization to which each Company became the successor by merger,
consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, on
any filings with the Internal Revenue Service at any time between April 19, 2002 and the date
hereof. Except as set forth in Schedule 1(c), no Company has changed its jurisdiction of
organization at any time during the past four months.



     2. Current Locations. The chief executive office of each Company is located at the
address set forth in Schedule 2 hereto.



     3. Locations in Arizona. (a) Set forth in Schedule 3(a) are all locations in
Arizona where each Company maintains a place of business or any Collateral or any books or records
relating to any Collateral.



     (b) Set forth in Schedule 3(b) hereto are the names and addresses of all persons or
entities other than each Company, such as lessees, consignees, warehousemen or purchasers of
chattel paper, located in Arizona which have possession or are intended to have possession of any
of the Collateral consisting of instruments, chattel paper, inventory or equipment.



     (c) Set forth in Schedule 3(c) is the information required by Schedule 3(a)
and Schedule 3(b) with respect to each location or place of business previously maintained
by each Company at any time during the past four months in Arizona.



     4. Extraordinary Transactions. Except for those purchases, acquisitions and other
transactions described on Schedule 4 attached hereto, all of the Collateral has been
originated by each Company



K-1-1









 




in the ordinary course of business or consists of goods which have been acquired by such
Company in the ordinary course of business from a person in the business of selling goods of that
kind.




     5. File Search Reports. Attached hereto as Schedule 5 is a true and accurate
summary of file search reports from (A) the Uniform Commercial Code filing offices (i) in each
jurisdiction identified in Section 1(a), Section 2 or Section 3 with respect to each legal name set
forth in Section 1 and (ii) in each jurisdiction described in Schedule 1(c) or Schedule
4 relating to any of the transactions described in Schedule (1)(c) or Schedule
4 with respect to each legal name of the person or entity from which each Company purchased or
otherwise acquired any of the Collateral and (B) each filing officer in each real estate recording
office identified on Schedule 8 with respect to real estate on which Collateral consisting
of fixtures is or is to be located. A true copy of each financing statement, including judgment
and tax liens, bankruptcy and pending lawsuits or other filing identified in such file search
reports has been delivered to the Collateral Agent.



     6. UCC Filings. The financing statements (duly authorized by each Company
constituting the debtor therein), including the indications of the collateral, attached as
Schedule 6 relating to the Security Agreement or the applicable Mortgage, are in the
appropriate forms for filing in the filing offices in the jurisdictions identified in Schedule
7 hereof.



     7. Schedule of Filings. Attached hereto as Schedule 7 is a schedule of (i)
the appropriate filing offices for the financing statements attached hereto as Schedule 6
and (ii) the appropriate filing offices for the filings described in Schedule 12(c) and
(iii) any other actions required to create, preserve, protect and perfect the security interests in
the Pledged Collateral (as defined in the Security Agreement) granted to the Collateral Agent
pursuant to the Collateral Documents. No other filings or actions are required to create,
preserve, protect and perfect the security interests in the Pledged Collateral granted to the
Collateral Agent pursuant to the Collateral Documents.



     8. Real Property. (a) Attached hereto as Schedule 8(a) is a list of all (i) real
property owned, leased or otherwise held by each Company (all of which, in the case of such
property located in the United States, referred to as “Mortgaged Property”) as of the
Closing Date, (ii) filing offices for mortgages relating to the Mortgaged Property as of the
Closing Date, (iii) common names, addresses and uses of each Mortgaged Property (stating
improvements located thereon) and (iv) other information relating thereto required by such
Schedule. Except as described on Schedule 8(b) attached hereto: (i) no Company has entered into
any leases, subleases, tenancies, franchise agreements, licenses or other occupancy arrangements as
owner, lessor, sublessor, licensor, franchisor or grantor with respect to any of the real property
described on Schedule 8(a) and (ii) no Company has any Leases which require the consent of the
landlord, tenant or other party thereto to the Transactions.



     (b) Attached hereto as Schedule 8(c) is a list of all water rights owned or used by the
Companies in connection with the operation of any Mortgaged Property.



     9. Termination Statements. Attached hereto as Schedule 9(a) are the duly
authorized termination statements in the appropriate form for filing in each applicable
jurisdiction identified in Schedule 9(b) hereto with respect to each Lien described
therein.



     10. Stock Ownership and Other Equity Interests. Attached hereto as Schedule
10(a) is a true and correct list of each of all of the authorized, and the issued and
outstanding, stock, partnership interests, limited liability company membership interests or other
equity interest of each Company and its Subsidiaries and the record and beneficial owners of such
stock, partnership interests, membership interests or other equity interests. Also set forth on
Schedule 10(b) is each equity investment of each Company that represents 50% or less of the
equity of the entity in which such investment was made.



K-1-2









 





     11. Instruments and Tangible Chattel Paper. Attached hereto as Schedule 11 is
a true and correct list of all promissory notes, instruments (other than checks to be deposited in
the ordinary course of business), tangible chattel paper, electronic chattel paper and other
evidence of indebtedness held by each Company as of September [ ], 2007, including all intercompany
notes between or among any two or more Companies or any of their Subsidiaries.



     12. Intellectual
Property. (a) Attached hereto as Schedule 12(a) is a
schedule setting forth all of each Company’s Patents, Patent Licenses, Trademarks and Trademark
Licenses (each as defined in the Security Agreement) registered with the United States Patent and
Trademark Office, and all other Patents, Patent Licenses, Trademarks and Trademark Licenses,
including the name of the registered owner and the registration number of each Patent, Patent
License, Trademark and Trademark License owned by each Company. Attached hereto as Schedule
12(b) is a schedule setting forth all of each Company’s United States Copyrights and Copyright
Licenses (each as defined in the Security Agreement), and all other Copyrights and Copyright
Licenses, including the name of the registered owner and the registration number of each Copyright
or Copyright License owned by each Company.



     (b) Attached hereto as Schedule 12(c) in proper form for filing with the United States
Patent and Trademark Office and United States Copyright Office are the filings necessary to
preserve, protect and perfect the security interests in the United States Trademarks, Trademark
Licenses, Patents, Patent Licenses, Copyrights and Copyright Licenses set forth on Schedule
12(a) and Schedule 12(b), including duly signed copies of each of the Patent Security
Agreement, Trademark Security Agreement and the Copyright Security Agreement, as applicable.



     13. Commercial Tort Claims. Attached hereto as Schedule 13 is a true and
correct list of all Commercial Tort Claims (as defined in the Security Agreement) held by each
Company, including a brief description thereof.



     14. Deposit Accounts, Securities Accounts and Commodity Accounts. Attached hereto as
Schedule 14 is a true and complete list of all Deposit Accounts, Securities Accounts and
Commodity Accounts (each as defined in the Security Agreement) maintained by each Company,
including the name of each institution where each such account is held, the name of each such
account and the name of each entity that holds each account.



     15. Letter-of-Credit Rights. Attached hereto as Schedule 15 is a true and
correct list of all Letters of Credit issued in favor of each Company, as beneficiary thereunder.



     16. Motor Vehicles. Attached hereto as Schedule 16 is a true and correct list
of all motor vehicles (covered by certificates of title or ownership) valued at over $50,000 and
owned by each Company, and the owner and approximate value of such motor vehicles.



[The Remainder of this Page has been intentionally left blank]






K-1-3









 








     IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate as of this ___day of
                    
           , 2007.



	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Each of the Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



-4-









 






	 	 	 	 	 



Schedule 1(a)



Legal Names, Etc.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Registered Organization	 	 	 	 	 	 	Federal Taxpayer	 	 	 	 
	Legal Name	 	Type of Entity	 	 	(Yes/No)	 	 	Organizational Number1	 	 	Identification Number	 	 	State of Formation	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 




	
	1          If none, so state.




-5-









 










Schedule 1(b)



Prior Organizational Names 



	 	 	 	 	 	 	 	 	 
	Company/Subsidiary	 	Prior Name	 	 	Date of Change	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





-6-









 






Schedule 1(c)



Changes in Corporate Identity; Other Names



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	List of All Other	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Names Used on Any	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Filings with the	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Internal Revenue	 
	 	 	Corporate Name of	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Service During Past	 
	Company/Subsidiary	 	Entity	 	 	Action	 	 	Date of Action	 	 	State of Formation	 	 	Five Years	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 




[Add Information required by Section 1 to the extent required by Section 1(c) of the
Perfection Certificate]






-7-









 








Schedule 2



Chief Executive Offices



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Company/Subsidiary	 	Address	 	 	County	 	 	State	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





-8-









 






Schedule 3(a)



Location of Places of Business, Collateral and Books and Records 
in Arizona



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Company/Subsidiary	 	Address	 	 	County	 	 	State	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 






-9-












 





Schedule 3(b)




Locations of Collateral in Possession of Persons Other Than Company or Any Subsidiary in Arizona



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name of Entity in	 	 	 	 	 	 	 	 	 	 
	 	 	Possession of	 	 	 	 	 	 	 	 	 	 
	 	 	Collateral/Capacity of such	 	 	Address/Location of	 	 	 	 	 	 	 
	Company/Subsidiary	 	Entity	 	 	Collateral	 	 	County	 	 	State	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





-10-









 





Schedule 3(c)




Prior Locations Maintained by Company/Subsidiaries in Arizona



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Company/Subsidiary	 	Address	 	 	County	 	 	State	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





-11-









 





Schedule 4




Transactions Other Than in the Ordinary Course of Business



	 	 	 	 	 	 	 	 	 
	Company/Subsidiary	 	Description of Transaction Including Parties Thereto	 	 	Date of Transaction	 
	 
	 	 	 	 	 	 	 	 





-12-









 






Schedule 5




File Search Reports



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Company/Subsidiary	 	Search Report dated	 	 	Prepared by	 	 	Jurisdiction	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





     See attached.



-13-









 





Schedule 6




Copy of Financing Statements To Be Filed



     See attached.



-14-









 





Schedule 7




Filings/Filing Offices



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Collateral	 	 	 	 
	 	 	 	 	 	 	Document	 	 	 	 
	 	 	 	 	 	 	[Mortgage, Security	 	 	 	 
	Type of Filing2	 	Entity	 	 	Agreement or Other]	 	 	Jurisdictions	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 







 




			
	2 	 	UCC-1 financing statement, fixture filing, mortgage, intellectual property filing or other necessary filing.




-15-









 










Schedule 8(a)




Real Property



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Description	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Landlord /	 	of Lease or	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Owned,	 	Owner if	 	Other	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Common	 	Leased	 	Leased or	 	Documents	 	 	 	Improvements	 	 	 	To be	 	 	 	Option to	 
	 	 	Name and	 	or Other	 	Other	 	Evidencing	 	Purpose	 	Located on	 	Legal	 	Encumbered	 	Filing Office	 	Purchase/Right	 
	Entity of Record	 	Address	 	Interest	 	Interest	 	Interest	 	/Use	 	Real Property	 	Description	 	by Mortgage	 	for Mortgage	 	of First Refusal	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[ ]	 	[ ]	 	[ ]	 	[ ]	 	[ ]	 	[ ]	 	[ ]	 	[SEE EXHIBIT A-[ ] ATTACHED HERETO]
	 	[YES/NO]	 	[ ]	 	[YES/NO] 







-16-











 





Schedule 8(b)




Required Consents; Company Held Landlord’s/ Grantor’s Interests 


I. Landlord’s / Grantor’s Consent Required 



1. [LIST EACH LEASE OR OTHER INSTRUMENT WHERE LANDLORD’S / GRANTOR’S CONSENT IS REQUIRED].



II. Leases, Subleases, Tenancies, Franchise Agreements, Licenses or Other Occupancy Agreements
Pursuant to which any Company holds Landlord’s / Grantor’s Interest



1. [LIST EACH LEASE OR OTHER INSTRUMENT WHERE COMPANY HOLDS LANDLORD’S / GRANTOR’S INTEREST]







-17-









 








Schedule 8(c)




Water Rights 



Attached hereto is a true copy of the current Water Rights owned or used by any Company in
Connection with the operation of any Mortgaged Property.



[
]







-18-









 








Schedule 9(a)




Attached hereto is a true copy of each termination statement filing duly acknowledged or otherwise
identified by the filing officer.






-19-









 








Schedule 9(b)




Termination Statement Filings



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Debtor	 	Jurisdiction	 	Secured Party	 	Type of Collateral	 	UCC-1 File Date	 	UCC-1 File Number





-20-









 






Schedule 10




(a) Equity Interests of Companies and Subsidiaries



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Current Legal	 	 	 	 	 	 	 	 
	Entities Owned	 	Record Owner	 	Certificate No.	 	No. Shares/Interest	 	Percent Pledged





(b) Other Equity Interests






-21-









 







Schedule 11




Instruments and Tangible Chattel Paper


1. Promissory Notes:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Entity	 	Principal Amount	 	Date of Issuance	 	Interest Rate	 	Maturity Date






			


	2.	 	Chattel Paper:






-22-











 





Schedule 12(a)



Patents and Trademarks



UNITED STATES PATENTS:



Registrations:




	 	 	 	 	 	 	 
	 	 	REGISTRATION	 	 	 	 
	OWNER	 	NUMBER	 	DESCRIPTION	 	 
	 
	 	 
	 	 
	 	 




Applications:




	 	 	 	 	 	 	 
	 	 	APPLICATION	 	 	 	 
	OWNER	 	NUMBER	 	DESCRIPTION	 	 
	 
	 	 
	 	 
	 	 





Licenses:




	 	 	 	 	 	 	 
	 	 	 	 	REGISTRATION/ APPLICATION	 	 
	LICENSEE	 	LICENSOR	 	NUMBER	 	DESCRIPTION
	 
	 	 
	 	 
	 	 





OTHER PATENTS:



Registrations:




	 	 	 	 	 	 	 
	 	 	REGISTRATION	 	 	 	 
	OWNER	 	NUMBER	 	COUNTRY/STATE	 	DESCRIPTION
	 
	 	 
	 	 
	 	 





Applications:




	 	 	 	 	 	 	 
	 	 	APPLICATION	 	 	 	 
	OWNER	 	NUMBER	 	COUNTRY/STATE	 	DESCRIPTION
	 
	 	 
	 	 
	 	 





-23-









 





Licenses:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	REGISTRATION/	 	 
	LICENSEE	 	LICENSOR	 	COUNTRY/STATE	 	APPLICATION NUMBER	 	DESCRIPTION
	 
	 	 
	 	 
	 	 
	 	 





UNITED STATES TRADEMARKS:



Registrations:




	 	 	 	 	 	 	 	 	 
	 	 	REGISTRATION	 	 	 	 	 	 
	OWNER	 	NUMBER	 	TRADEMARK	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 





Applications:




	 	 	 	 	 	 	 	 	 
	 	 	APPLICATION	 	 	 	 	 	 
	OWNER	 	NUMBER	 	TRADEMARK	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 





Licenses:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	REGISTRATION/	 	 	 	 	 	 
	LICENSEE	 	LICENSOR	 	APPLICATION NUMBER	 	TRADEMARK	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 	 	 





OTHER TRADEMARKS:



Registrations:




	 	 	 	 	 	 	 	 	 
	 	 	REGISTRATION	 	 	 	 	 	 
	OWNER	 	NUMBER	 	COUNTRY/STATE	 	TRADEMARK	 	 
	 
	 	 
	 	 
	 	 
	 	 





-24-









 





Applications:




	 	 	 	 	 	 	 	 	 
	 	 	APPLICATION	 	 	 	 	 	 
	OWNER	 	NUMBER	 	COUNTRY/STATE	 	TRADEMARK	 	 
	 
	 	 
	 	 
	 	 
	 	 





Licenses:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	REGISTRATION/	 	 
	 	 	 	 	 	 	APPLICATION	 	 
	LICENSEE	 	LICENSOR	 	COUNTRY/STATE	 	NUMBER	 	TRADEMARK
	 
	 	 
	 	 
	 	 
	 	 





-25-









 






Schedule 12(b)



Copyrights



UNITED STATES COPYRIGHTS



Registrations:




	 	 	 	 	 	 	 	 	 
	 
	OWNER	 	TITLE	 	REGISTRATION NUMBER	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 





Applications:




	 	 	 	 	 	 	 	 	 
	 
	OWNER	 	APPLICATION NUMBER	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 





Licenses:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	REGISTRATION/ APPLICATION	 	 	 	 
	LICENSEE	 	LICENSOR	 	NUMBER	 	DESCRIPTION	 	 
	 
	 	 
	 	 
	 	 
	 	 





OTHER COPYRIGHTS



Registrations:




	 	 	 	 	 	 	 	 	 
	 
	OWNER	 	COUNTRY/STATE	 	TITLE	 	REGISTRATION NUMBER	 	 
	 
	 	 
	 	 
	 	 
	 	 





Applications:




	 	 	 	 	 	 	 	 	 
	 
	OWNER	 	COUNTRY/STATE	 	APPLICATION NUMBER	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 





Licenses:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	REGISTRATION/	 	 
	LICENSEE	 	LICENSOR	 	COUNTRY/STATE	 	APPLICATION NUMBER	 	DESCRIPTION
	 
	 	 
	 	 
	 	 
	 	 





-26-









 






Schedule 12(c)



Intellectual Property Filings



-27-









 





Schedule 13



Commercial Tort Claims



-28-









 





Schedule 14



Deposit Accounts, Securities Accounts and Commodity Accounts



	 	 	 	 	 	 	 	 	 
	OWNER	 	TYPE OF ACCOUNT	 	BANK OR INTERMEDIARY	 	ACCOUNT NUMBERS	 	 
	 
	 	 
	 	 
	 	 
	 	 





-29-









 






Schedule 15



Letter of Credit Rights



-30-









 





Schedule 16



Motor Vehicles




-31-











 





EXHIBIT K-2



[Form of]

PERFECTION CERTIFICATE SUPPLEMENT




     This Perfection Certificate Supplement, dated as of [            ], 200[ ] is
delivered pursuant to Section 5.13(b) of that Certain Amended and Restated Credit Agreement dated
as of September [ ], 2007 (the “Credit Agreement”) among NAVISITE, INC. (“the
Borrower”), the Subsidiary Guarantors, the Lenders party thereto, CIBC WORLD MARKETS CORP.,
as Sole Lead Arranger, Documentation Agent, and Bookrunner, CIT LENDING SERVICES CORPORATION as
Syndication Agent, and CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New York agency, as
Issuing Bank and as Administrative Agent for the Lenders and as Collateral Agent, (in such
capacity, the “Collateral Agent”) for the Secured Parties and the Issuing Bank.
Capitalized terms used but not defined herein have the meanings assigned in the Credit Agreement.
As used herein, the term “Companies” means Borrower and each of its Subsidiaries.



     The undersigned, the [            ] of the Borrowera, hereby certify (in my
capacity as [            ] and not in my individual capacity) to the Collateral Agent and
each of the other Secured Parties that, as of the date hereof, there has been no change in the
information described in the Perfection Certificate delivered on the Closing Date (as supplemented
by any perfection certificate supplements delivered prior to the date hereof, the “Prior
Perfection Certificate”), other than as follows:



     1. Names. (a) Except as listed on Schedule 1(a) attached hereto and made a
part hereof, (x) Schedule 1(a) to the Prior Perfection Certificate sets forth the exact
legal name of each Company, as such name appears in its respective certificate of incorporation or
any other organizational document; (y) each Company is (i) the type of entity disclosed next to
its name in Schedule 1(a) to the Prior Perfection Certificate and (ii) a registered
organization except to the extent disclosed in Schedule 1(a) to the Prior Perfection
Certificate and (z) set forth in Schedule 1(a) to the Prior Perfection Certificate is the
organizational identification number, if any, of each Company that is a registered organization,
the Federal Taxpayer Identification Number of each Company and the jurisdiction of formation of
each Company.



     (b) Except as listed on Schedule 1(b) attached hereto and made a part hereof, set
forth in Schedule 1(b) of the Prior Perfection Certificate is any other corporate or
organizational names each Company has had in the past five years, together with the date of the
relevant change.



     2. Current Locations. Except as listed on Schedule 2 attached hereto and made
a part hereof, the chief executive office of each Company is located at the address set forth in
Schedule 2 of the Prior Perfection Certificate.



     3. [Intentionally omitted].



     4. Extraordinary Transactions. Except for those purchases, acquisitions and other
transactions described on Schedule 4 attached hereto and on Schedule 4 to the Prior
Perfection Certificate, all of





 




			
	a	 	Insert appropriate officers of Subsidiary
Guarantors, as applicable.




K-2-1









 









the Collateral has been originated by each Company in the ordinary course of business or
consists of goods which have been acquired by such Company in the ordinary course of business from
a person in the business of selling goods of that kind.




     5. [Intentionally omitted].



     6. UCC Filings. Except as listed on Schedule 6 attached hereto and made a
part hereof, the financing statements (duly authorized by each Company constituting the debtor
therein), including the indications of the collateral relating to the Security Agreement or the
applicable Mortgage, are set forth in Schedule 6 of the Prior Perfection Certificate and
are in the appropriate forms for filing in the filing offices in the jurisdictions identified in
Schedule 7 hereto and thereto.



     7. Schedule of Filings. Except as listed on Schedule 7 attached hereto and
made a part hereof, attached to the Prior Perfection Certificate as Schedule 7 is a
schedule of (i) the appropriate filing offices for the financing statements attached hereto and
thereto as Schedule 6 and (ii) the appropriate filing offices for the filings described in
Schedule 14(c) hereto and thereto and (iii) any other actions required to create, preserve,
protect and perfect the security interests in the Pledged Collateral (as defined in the Security
Agreement) granted to the Collateral Agent pursuant to the Collateral Documents. No other filings
or actions are required to create, preserve, protect and perfect the security interests in the
Pledged Collateral granted to the Collateral Agent pursuant to the Collateral Documents.



     8. Real Property. Except as listed on Schedule 8(a) attached hereto and made
a part hereof, Schedule 8(a) to the Prior Perfection Certificate is a list of all real
property owned or leased by each Company noting Mortgaged Property as of the Closing Date and
filing offices for Mortgages as of the Closing Date. Except as described on Schedule 8(b)
attached hereto, no Company has entered into any leases, subleases, tenancies, franchise
agreements, licenses or other occupancy arrangements as owner, lessor, sublessor, licensor,
franchisor or grantor with respect to any of the real property described on Schedule 8(a)
or Schedule 8(a) of the Prior Perfection Certificate, other than those listed on
Schedule 8(b) of the Prior Perfection Certificate, and no Company has any Leases which
require the consent of the landlord, tenant or other party thereto to the Transactions.



     9. Termination Statements. Except as listed on Schedule 9(a) attached hereto
and made a part hereof, Schedule 9(a) to the Prior Perfection Certificate sets forth the
duly authorized termination statements in the appropriate form for filing in each applicable
jurisdiction identified in Schedule 9(b) hereto and thereto with respect to each Lien
described therein.



     10. Stock Ownership and Other Equity Interests. Except as listed on Schedule
10(a) attached hereto and made a part hereof, Schedule 10(a) to the Prior Perfection
Certificate is a true and correct list of each of all of the authorized, and the issued and
outstanding, stock, partnership interests, limited liability company membership interests or other
equity interest of each Company and its Subsidiaries and the record and beneficial owners of such
stock, partnership interests, membership interests or other equity interests. Except as set forth
on Schedule 10(b) attached hereto and made a part hereof, Schedule 10(b) to the
Prior Perfection Certificate sets forth each equity investment of each Company that represents 50%
or less of the equity of the entity in which such investment was made.



     11. Instruments and Tangible Chattel Paper. Except as listed on Schedule 11
attached hereto and made a part hereof, Schedule 11 to the Prior Perfection Certificate is
a true and correct list of all promissory notes, instruments (other than checks to be deposited in
the ordinary course of business), tangible chattel paper, electronic chattel paper and other
evidence of indebtedness held by each Company as of                     , 200[ ], including all
intercompany notes between or among any two or more Companies.



-2-









 





     12. Intellectual Property. (a) Except as listed on Schedule 12(a) attached
hereto and made a part hereof, Schedule 12(a) to the Prior Perfection Certificate is a
schedule setting forth all of each Company’s Patents, Patent Licenses, Trademarks and Trademark
Licenses (each as defined in the Security Agreement) registered with the United States Patent and
Trademark Office, and all other Patents, Patent Licenses, Trademarks and Trademark Licenses,
including the name of the registered owner and the registration number of each Patent, Patent
License, Trademark and Trademark License owned by each Company. Except as listed on Schedule
12(b) attached hereto and made a part hereof, Schedule 12(b) to the Prior Perfection
Certificate is a schedule setting forth all of each Company’s United States Copyrights and
Copyright Licenses (each as defined in the Security Agreement), and all other Copyrights and
Copyright Licenses, including the name of the registered owner and the registration number of each
Copyright or Copyright License owned by each Company.



     (b) Except as listed on Schedule 12(c) attached hereto and made a part hereof,
attached to the Prior Perfection Certificate as Schedule 12(c) in proper form for filing
with the United States Patent and Trademark Office and United States Copyright Office are the
filings necessary to preserve, protect and perfect the security interests in the United States
Trademarks, Trademark Licenses, Patents, Patent Licenses, Copyrights and Copyright Licenses set
forth on Schedule 12(a) and Schedule 12(b) hereto and thereto, including duly
signed copies of each of the Patent Security Agreement, Trademark Security Agreement and the
Copyright Security Agreement, as applicable.



     13. Commercial Tort Claims. Except as listed on Schedule 13 attached hereto
and made a part hereof, attached to the Prior Perfection Certificate as Schedule 13 is a
true and correct list of all Commercial Tort Claims (as defined in the Security Agreement) held by
each Company, including a brief description thereof.



     14. Deposit Accounts, Securities Accounts and Commodity Accounts. Except as listed on
Schedule 14 attached hereto and made a part hereof, attached to the Prior Perfection
Certificate as Schedule 14 is a true and complete list of all Deposit Accounts, Securities
Accounts and Commodity Accounts (each as defined in the Security Agreement) maintained by each
Company, including the name of each institution where each such account is held, the name of each
such account and the name of each entity that holds each account.



     15. Letter-of-Credit Rights. Except as listed on Schedule 15 attached hereto
and made a part hereof, attached to the Prior Perfection Certificate as Schedule 15 is a
true and correct list of all Letters of Credit issued in favor of each Company, as beneficiary
thereunder.



     16. Motor Vehicles. Except as listed on Schedule 16 attached hereto and made
a part hereof, attached to the Prior Perfection Certificate as Schedule 16 is a true and
correct list of all motor vehicles (covered by certificates of title or ownership) valued at over
$50,000 and owned by each Company, and the owner and approximate value of such motor vehicles.



[The Remainder of this Page has been intentionally left blank]






-3-









 








     IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate Supplement as of this
___day of                     , 200[ ].



	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Each of the
Guarantors]


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




-4-












 





Schedule 1(a)




Legal Names, Etc.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Registered Organization	 	 	 	Federal Taxpayer	 	 
	Legal Name	 	Type of Entity	 	(Yes/No)	 	Organizational Numbera	 	Identification Number	 	State of Formation
	 	 	 	 	 	 	 	 	 	 	 







 




			
	a	 	If none, so state.




-5-









 

\








Schedule 1(b)




Prior Organizational Names 



	 	 	 	 	 
	Company/Subsidiary	 	Prior Name	 	Date of Change
	 	 	 	 	 





 









 






Schedule 2




Chief Executive Offices



	 	 	 	 	 	 	 
	Company/Subsidiary	 	Address	 	County	 	State
	 	 	 	 	 	 	 





 









 






Schedule 4




Transactions Other Than in the Ordinary Course of Business



	 	 	 	 	 
	Company/Subsidiary	 	Description of Transaction Including Parties Thereto	 	Date of Transaction
	 	 	 	 	 





 









 






Schedule 6



Copy of Financing Statements To Be Filed




     See attached.



 









 





Schedule 7




Filings/Filing Offices



	 	 	 	 	 	 	 
	 	 	 	 	Applicable	 	 
	 	 	 	 	Collateral Document	 	 
	 	 	 	 	[Mortgage, Security	 	 
	Type of Filing a	 	Entity	 	Agreement or Other]	 	Jurisdictions
	 	 	 	 	 	 	 







 




			
	a	 	UCC-1 financing statement, fixture
filing, mortgage, intellectual property filing or other necessary filing.




 









 










Schedule 8(a)




Real Property



	 	 	 	 	 	 	 	 	 	 	 
	Entity of	 	 	 	 	 	Landlord/Owner if	 	Description of	 	Purpose/Use of
	Record	 	Location Address	 	Owned or Leased	 	Leased	 	Lease Documents	 	Facility
	 	 	 	 	 	 	 	 	 	 	 





 









 






Schedule 8(b)




Leases, Subleases, Tenancies, Franchise agreements, Licenses or Other Occupancy Arrangements






 









 








Schedule 9(a)




Attached hereto is a true copy of each termination statement filing duly acknowledged or otherwise
identified by the filing officer.






 









 








Schedule 9(b)




Termination Statement Filings



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	UCC-1 File	 	UCC-1 File
	Debtor	 	Jurisdiction	 	Secured Party	 	Type of Collateral	 	Date	 	Number
	 	 	 	 	 	 	 	 	 	 	 





 









 






Schedule 10




(a) Equity Interests of Companies and Subsidiaries



	 	 	 	 	 	 	 	 	 
	Current Legal	 	 	 	 	 	 	 	 
	Entities Owned	 	Record Owner	 	Certificate No.	 	No. Shares/Interest	 	Percent Pledged





(b) Other Equity Interests






 









 








Schedule 11




Instruments and Tangible Chattel Paper


1. Promissory Notes:




	 	 	 	 	 	 	 	 	 
	Entity	 	Principal Amount	 	Date of Issuance	 	Interest Rate	 	Maturity Date




2. Chattel Paper:





 











 





Schedule 12(a)




Patents and Trademarks



UNITED STATES PATENTS:



Registrations:




	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	REGISTRATION NUMBER	 	DESCRIPTION




Applications:




	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	APPLICATION NUMBER	 	DESCRIPTION




Licenses:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	REGISTRATION/ APPLICATION	 	 
	LICENSEE	 	LICENSOR	 	NUMBER	 	DESCRIPTION





OTHER PATENTS:



Registrations:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	REGISTRATION NUMBER	 	COUNTRY/STATE	 	DESCRIPTION




Applications:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	APPLICATION NUMBER	 	COUNTRY/STATE	 	DESCRIPTION





 









 





Licenses:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	REGISTRATION/	 	 
	LICENSEE	 	LICENSOR	 	COUNTRY/STATE	 	APPLICATION NUMBER	 	DESCRIPTION





UNITED STATES TRADEMARKS:



Registrations:




	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	REGISTRATION NUMBER	 	TRADEMARK




Applications:




	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	APPLICATION NUMBER	 	TRADEMARK




Licenses:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	REGISTRATION/	 	 
	LICENSEE	 	LICENSOR	 	APPLICATION NUMBER	 	TRADEMARK





OTHER TRADEMARKS:



Registrations:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	REGISTRATION NUMBER	 	COUNTRY/STATE	 	TRADEMARK




Applications:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	APPLICATION NUMBER	 	COUNTRY/STATE	 	TRADEMARK





 









 





Licenses:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	REGISTRATION/	 	 
	LICENSEE	 	LICENSOR	 	COUNTRY/STATE	 	APPLICATION NUMBER	 	TRADEMARK





 









 






Schedule 12(b)




Copyrights



UNITED STATES COPYRIGHTS



Registrations:




	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	TITLE	 	REGISTRATION NUMBER




Applications:




	 	 	 	 	 	 	 
	OWNER	 	APPLICATION NUMBER




Licenses:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	REGISTRATION/ APPLICATION	 	 
	LICENSEE	 	LICENSOR	 	NUMBER	 	DESCRIPTION





OTHER COPYRIGHTS



Registrations:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	COUNTRY/STATE	 	TITLE	 	REGISTRATION NUMBER




Applications:




	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	COUNTRY/STATE	 	APPLICATION NUMBER





Licenses:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	REGISTRATION/	 	 
	LICENSEE	 	LICENSOR	 	COUNTRY/STATE	 	APPLICATION NUMBER	 	DESCRIPTION





 









 






Schedule 12(c)




Intellectual Property Filings



 









 





Schedule 13




Commercial Tort Claims



 









 





Schedule 14




Deposit Accounts, Securities Accounts and Commodity Accounts



	 	 	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	TYPE OF ACCOUNT	 	BANK OR INTERMEDIARY	 	ACCOUNT NUMBERS





 









 






Schedule 15




Letter of Credit Rights



 









 





Schedule 16




Motor Vehicles



 









 





EXHIBIT L




 


[Form of]

SECURITY AGREEMENT




By



NAVISITE, INC.,

as Borrower



and



THE GUARANTORS PARTY HERETO



and



CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York Agency,

as Collateral Agent



 



Dated as of June 8, 2007



 





L-1









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	PREAMBLE

	 	 	1	 
	 
	 	 	 	 
	RECITALS

	 	 	1	 
	 
	 	 	 	 
	AGREEMENT

	 	 	2	 
	 
	 	 	 	 
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS AND INTERPRETATION

	 
	 	 	 	 
	SECTION 1.1. DEFINITIONS

	 	 	2	 
	SECTION 1.2. INTERPRETATION

	 	 	9	 
	SECTION 1.3. RESOLUTION OF DRAFTING AMBIGUITIES

	 	 	9	 
	SECTION 1.4. PERFECTION CERTIFICATE

	 	 	9	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	GRANT OF SECURITY AND SECURED OBLIGATIONS

	 
	 	 	 	 
	SECTION 2.1. GRANT OF SECURITY INTEREST

	 	 	9	 
	SECTION 2.2. FILINGS

	 	 	10	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;

	 
	 	 	 	 
	USE OF PLEDGED COLLATERAL

	 
	 	 	 	 
	SECTION 3.1. DELIVERY OF CERTIFICATED SECURITIES COLLATERAL

	 	 	11	 
	SECTION 3.2. PERFECTION OF UNCERTIFICATED SECURITIES COLLATERAL

	 	 	11	 
	SECTION 3.3. FINANCING STATEMENTS AND OTHER FILINGS; MAINTENANCE OF
PERFECTED SECURITY INTEREST

	 	 	12	 
	SECTION 3.4. OTHER ACTIONS

	 	 	12	 
	SECTION 3.5. JOINDER OF ADDITIONAL GUARANTORS

	 	 	15	 
	SECTION 3.6. SUPPLEMENTS; FURTHER ASSURANCES

	 	 	16	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	REPRESENTATIONS, WARRANTIES AND COVENANTS

	 
	 	 	 	 
	SECTION 4.1. TITLE

	 	 	17	 






-i-









 







	 	 	 	 	 
	 	 	Page
	SECTION 4.2. VALIDITY OF SECURITY INTEREST

	 	 	17	 
	SECTION 4.3. DEFENSE OF CLAIMS; TRANSFERABILITY OF PLEDGED COLLATERAL

	 	 	17	 
	SECTION 4.4. OTHER FINANCING STATEMENTS

	 	 	17	 
	SECTION 4.5. LOCATION OF INVENTORY AND EQUIPMENT

	 	 	18	 
	SECTION 4.6. DUE AUTHORIZATION AND ISSUANCE

	 	 	18	 
	SECTION 4.7. CONSENTS, ETC.

	 	 	18	 
	SECTION 4.8. PLEDGED COLLATERAL

	 	 	18	 
	SECTION 4.9. INSURANCE

	 	 	18	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL

	 
	 	 	 	 
	SECTION 5.1. PLEDGE OF ADDITIONAL SECURITIES COLLATERAL
	 	 	19	 
	SECTION 5.2. VOTING RIGHTS; DISTRIBUTIONS; ETC.

	 	 	19	 
	SECTION 5.3. DEFAULTS, ETC.

	 	 	20	 
	SECTION 5.4. CERTAIN AGREEMENTS OF PLEDGORS AS ISSUERS AND HOLDERS OF EQUITY INTERESTS

	 	 	21	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	CERTAIN PROVISIONS CONCERNING INTELLECTUAL

	PROPERTY COLLATERAL

	 
	 	 	 	 
	SECTION 6.1. GRANT OF INTELLECTUAL PROPERTY LICENSE

	 	 	21	 
	SECTION 6.2. PROTECTION OF COLLATERAL AGENT’S SECURITY

	 	 	21	 
	SECTION 6.3. AFTER-ACQUIRED PROPERTY

	 	 	22	 
	SECTION 6.4. LITIGATION

	 	 	22	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	CERTAIN PROVISIONS CONCERNING RECEIVABLES

	 
	 	 	 	 
	SECTION 7.1. MAINTENANCE OF RECORDS

	 	 	23	 
	SECTION 7.2. LEGEND

	 	 	23	 
	SECTION 7.3. MODIFICATION OF TERMS, ETC.

	 	 	23	 
	SECTION 7.4. COLLECTION

	 	 	24	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	TRANSFERS

	 
	 	 	 	 
	SECTION 8.1. TRANSFERS OF PLEDGED COLLATERAL

	 	 	24	 






-ii-









 






	 	 	 	 	 
	 	 	Page
	ARTICLE IX

	 
	 	 	 	 
	REMEDIES

	 
	 	 	 	 
	SECTION 9.1. REMEDIES

	 	 	24	 
	SECTION 9.2. NOTICE OF SALE

	 	 	26	 
	SECTION 9.3. WAIVER OF NOTICE AND CLAIMS

	 	 	26	 
	SECTION 9.4. CERTAIN SALES OF PLEDGED COLLATERAL

	 	 	27	 
	SECTION 9.5. NO WAIVER; CUMULATIVE REMEDIES

	 	 	28	 
	SECTION 9.6. CERTAIN ADDITIONAL ACTIONS REGARDING INTELLECTUAL PROPERTY

	 	 	29	 
	 
	 	 	 	 
	ARTICLE X

	 
	 	 	 	 
	APPLICATION OF PROCEEDS

	 
	 	 	 	 
	SECTION 10.1. APPLICATION OF PROCEEDS

	 	 	29	 
	 
	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	SECTION 11.1. CONCERNING COLLATERAL AGENT

	 	 	29	 
	SECTION 11.2. COLLATERAL AGENT MAY PERFORM; COLLATERAL AGENT APPOINTED
ATTORNEY-IN-FACT

	 	 	31	 
	SECTION 11.3. CONTINUING SECURITY INTEREST; ASSIGNMENT

	 	 	31	 
	SECTION 11.4. TERMINATION; RELEASE

	 	 	32	 
	SECTION 11.5. MODIFICATION IN WRITING

	 	 	32	 
	SECTION 11.6. NOTICES

	 	 	33	 
	SECTION 11.7. GOVERNING LAW, CONSENT TO JURISDICTION AND SERVICE OF PROCESS;
WAIVER OF JURY TRIAL

	 	 	33	 
	SECTION 11.8. SEVERABILITY OF PROVISIONS

	 	 	33	 
	SECTION 11.9. EXECUTION IN COUNTERPARTS

	 	 	33	 
	SECTION 11.10. BUSINESS DAYS

	 	 	33	 
	SECTION 11.11. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITION

	 	 	33	 
	SECTION 11.12. NO CLAIMS AGAINST COLLATERAL AGENT

	 	 	33	 
	SECTION 11.13. NO RELEASE

	 	 	34	 
	SECTION 11.14. OBLIGATIONS ABSOLUTE

	 	 	34	 
	 
	 	 	 	 
	SIGNATURES

	 	 	S-1	 
	 
	 	 	 	 
	EXHIBIT 1 Form of Issuer’s Acknowledgment
	 	 	 	 
	EXHIBIT 2 Form of Securities Pledge Amendment
	 	 	 	 






-iii-









 






	 	 	 	 	 
	 	 	Page
	EXHIBIT 3     Form of Joinder Agreement
	 	 	 	 
	EXHIBIT 4     Form of Control Agreement Concerning Securities Accounts
	 	 	 	 
	EXHIBIT 5     Form of Control Agreement Concerning Deposit Accounts
	 	 	 	 
	EXHIBIT 6     Form of Copyright Security Agreement
	 	 	 	 
	EXHIBIT 7     Form of Patent Security Agreement
	 	 	 	 
	EXHIBIT 8     Form of Trademark Security Agreement
	 	 	 	 
	EXHIBIT 9     Form of Bailee’s Letter
	 	 	 	 











-iv-









 








SECURITY AGREEMENT




          This SECURITY AGREEMENT dated as of June 8, 2007 (as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the provisions hereof, this
“Agreement”) made by NAVISITE, INC., a Delaware Corporation (the “Borrower”), and
the Guarantors from time to time party hereto (the “Guarantors”), as pledgors, assignors
and debtors (the Borrower, together with the Guarantors, in such capacities and together with any
successors in such capacities, the “Pledgors,” and each, a “Pledgor”), in favor of
CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New York Agency in its capacity as
collateral agent pursuant to the Credit Agreement (as hereinafter defined), as pledgee, assignee
and secured party (in such capacities and together with any successors in such capacities, the
“Collateral Agent”).




R E C I T A L S :




          A. The Borrower, the Guarantors, the Collateral Agent and the lending institutions listed
therein have, in connection with the execution and delivery of this Agreement, entered into that
certain credit agreement, dated as of June 8, 2007 (as amended, amended and restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”; which term shall also
include and refer to any increase in the amount of indebtedness under the Credit Agreement and any
refinancing or replacement of the Credit Agreement (whether under a bank facility, securities
offering or otherwise) or one or more successor or replacement facilities whether or not with a
different group of agents or lenders (whether under a bank facility, securities offering or
otherwise) and whether or not with different obligors upon the Administrative Agent’s
acknowledgment of the termination of the predecessor Credit Agreement).




          B. Each Guarantor has, pursuant to the Credit Agreement, unconditionally guaranteed the
Secured Obligations.




          C. The Borrower and each Guarantor will receive substantial benefits from the execution,
delivery and performance of the obligations under the Credit Agreement and the other Loan Documents
and each is, therefore, willing to enter into this Agreement.




          D. This Agreement is given by each Pledgor in favor of the Collateral Agent for the benefit of
the Secured Parties (as hereinafter defined) to secure the payment and performance of all of the
Secured Obligations.




          F. It is a condition to (i) the obligations of the Lenders to make the Loans under the Credit
Agreement (ii) the obligations of the Issuing Bank to issue Letters of Credit and (iii) the
performance of the obligations of the Secured Parties under Hedging Agreements and Treasury
Services Agreements that constitute Secured Obligations that each Pledgor execute and deliver the
applicable Loan Documents, including this Agreement.

















 








A G R E E M E N T :




          NOW THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, each Pledgor and the
Collateral Agent hereby agree as follows:




ARTICLE I




DEFINITIONS AND INTERPRETATION



          SECTION 1.1. Definitions.




          (a) Unless otherwise defined herein or in the Credit Agreement, capitalized terms used herein
that are defined in the UCC shall have the meanings assigned to them in the UCC; provided
that in any event, the following terms shall have the meanings assigned to them in the UCC:




          “Accounts”; “Bank”; “Chattel Paper”; “Commercial Tort Claim”;
“Commodity Account”; “Commodity Contract”; “Commodity Intermediary”;
“Documents”; “Electronic Chattel Paper”; “Entitlement Order”;
“Equipment”; “Financial Asset”; “Fixtures”; “Goods”,
“Inventory”; “Letter-of-Credit Rights”; “Letters of Credit”;
“Money”; “Payment Intangibles”; “Proceeds”; “ Records”;
“Securities Account”; “Securities Intermediary”; “Security Entitlement”;
“Supporting Obligations”; and “Tangible Chattel Paper.”




          (b) Terms used but not otherwise defined herein that are defined in the Credit Agreement shall
have the meanings given to them in the Credit Agreement. Sections 1.03 and 1.05 of the Credit
Agreement shall apply herein mutatis mutandis.




          (c) The following terms shall have the following meanings:




          “Account Debtor” shall mean each person who is obligated on a Receivable or Supporting
Obligation related thereto.




          “Agreement” shall have the meaning assigned to such term in the Preamble hereof.




          “Bailee Letter” shall be an agreement in form substantially similar to Exhibit 9
hereto.




          “Borrower” shall have the meaning assigned to such term in the Preamble hereof.




          “Collateral Agent” shall have the meaning assigned to such term in the Preamble
hereof.







-2-









 








          “Collateral Support” shall mean all property (real or personal) assigned, hypothecated
or otherwise securing any Pledged Collateral and shall include any security agreement or other
agreement granting a lien or security interest in such real or personal property.




          “Commodity Account Control Agreement” shall mean a control agreement in a form that is
reasonably satisfactory to the Administrative Agent establishing the Collateral Agent’s Control
with respect to any Commodity Account.




          “Contracts” shall mean, collectively, with respect to each Pledgor, all sale, service,
performance, equipment or property lease contracts, agreements and grants and all other contracts,
agreements or grants (in each case, whether written or oral, or third party or intercompany),
between such Pledgor and any third party, and all assignments, amendments, restatements,
supplements, extensions, renewals, replacements or modifications thereof.




          “Control” shall mean (i) in the case of each Deposit Account, “control,” as such term
is defined in Section 9-104 of the UCC, (ii) in the case of any Security Entitlement, “control,” as
such term is defined in Section 8-106 of the UCC, and (iii) in the case of any Commodity Contract,
“control,” as such term is defined in Section 9-106 of the UCC.




          “Control Agreements” shall mean, collectively, the Deposit Account Control Agreement,
the Securities Account Control Agreement and the Commodity Account Control Agreement.




          “Copyrights” shall mean, collectively, with respect to each Pledgor, all copyrights
(whether statutory or common law, whether established or registered in the United States or any
other country or any political subdivision thereof, whether registered or unregistered and whether
published or unpublished) and all copyright registrations and applications made by such Pledgor, in
each case, whether now owned or hereafter created or acquired by or assigned to such Pledgor,
together with any and all (i) rights and privileges arising under applicable law with respect to
such Pledgor’s use of such copyrights, (ii) reissues, renewals, continuations and extensions
thereof and amendments thereto, (iii) income, fees, royalties, damages, claims and payments now or
hereafter due and/or payable with respect thereto, including damages and payments for past, present
or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v)
rights to sue for past, present or future infringements thereof.




          “Copyright Security Agreement” shall mean an agreement substantially in the form of
Exhibit 6 hereto.




          “Credit Agreement” shall have the meaning assigned to such term in Recital A
hereof.




          “Deposit Account Control Agreement” shall mean an agreement substantially in the form
of Exhibit 5 hereto or such other form that is reasonably satisfactory to the Collateral
Agent establishing the Collateral Agent’s Control with respect to any Deposit Account.







-3-









 









          “Deposit Accounts” shall mean, collectively, with respect to each Pledgor, (i) all
“deposit accounts” as such term is defined in the UCC and in any event shall include the LC Account
and all accounts and sub-accounts relating to any of the foregoing accounts and (ii) all cash,
funds, checks, notes and instruments from time to time on deposit in any of the accounts or
sub-accounts described in clause (i) of this definition.




          “Distributions” shall mean, collectively, with respect to each Pledgor, all dividends,
cash, options, warrants, rights, instruments, distributions, returns of capital or principal,
income, interest, profits and other property, interests (debt or equity) or proceeds, including as
a result of a split, revision, reclassification or other like change of the Pledged Securities,
from time to time received, receivable or otherwise distributed to such Pledgor in respect of or in
exchange for any or all of the Pledged Securities or Intercompany Notes.




          “Excluded Property” shall mean





     (a) any permit or license issued by a Governmental Authority to any Pledgor or any
agreement to which any Pledgor is a party, in each case, only to the extent and for so long
as the terms of such permit, license or agreement or any Requirement of Law applicable
thereto, validly prohibit the creation by such Pledgor of a security interest in such
permit, license or agreement in favor of the Collateral Agent (after giving effect to
Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or
provisions) or any other applicable law (including the Bankruptcy Code) or principles of
equity);




     (b) Equipment owned by any Pledgor on the date hereof or hereafter acquired that is
subject to a Lien securing a Purchase Money Obligation or Capital Lease Obligation permitted
to be incurred pursuant to the provisions of the Credit Agreement if the contract or other
agreement in which such Lien is granted (or the documentation providing for such Purchase
Money Obligation or Capital Lease Obligation) validly prohibits the creation of any other
Lien on such Equipment; and




     (c) any intent-to-use trademark application to the extent and for so long as creation
by a Pledgor of a security interest therein would result in the loss by such Pledgor of any
material rights therein;


provided, however, that Excluded Property shall not include any Proceeds,
substitutions or replacements of any Excluded Property referred to in clause (a), (b) or (c)
(unless such Proceeds, substitutions or replacements would constitute Excluded Property referred to
in clause (a), (b) or (c)).




          “General Intangibles” shall mean, collectively, with respect to each Pledgor, all
“general intangibles,” as such term is defined in the UCC, of such Pledgor and, in any event, shall
include (i) all of such Pledgor’s rights, title and interest in, to and under all Contracts and
insurance policies (including all rights and remedies relating to monetary damages, including
indemnification rights and remedies, and claims for damages or other relief pursuant to or in respect






-4-









 







 of any Contract), (ii) all know-how and warranties relating to any of the Pledged
Collateral or the Mortgaged Property, (iii) any and all other rights, claims, choses-in-action and
causes of action of such Pledgor against any other person and the benefits of any and all
collateral or other security given by any other person in connection therewith, (iv) all
guarantees, endorsements and indemnifications on, or of, any of the Pledged Collateral or any of
the Mortgaged Property, (v) all lists, books, records, correspondence, ledgers, printouts, files
(whether in printed form or stored electronically), tapes and other papers or materials containing
information relating to any of the Pledged Collateral or any of the Mortgaged Property, including
all customer or tenant lists, identification of suppliers, data, plans, blueprints, specifications,
designs, drawings, appraisals, recorded knowledge, surveys, studies, engineering reports, test
reports, manuals, standards, processing standards, performance standards, catalogs, research data,
computer and automatic machinery software and programs and the like, field repair data, accounting
information pertaining to such Pledgor’s operations or any of the Pledged Collateral or any of the
Mortgaged Property and all media in which or on which any of the information or knowledge or data
or records may be recorded or stored and all computer programs used for the compilation or printout
of such information, knowledge, records or data, (vi) all licenses, consents, permits, variances,
certifications, authorizations and approvals, however characterized, now or hereafter acquired or
held by such Pledgor, including building permits, certificates of occupancy, environmental
certificates, industrial permits or licenses and certificates of operation and (vii) all rights to
reserves, deferred payments, deposits, refunds, indemnification of claims and claims for tax or
other refunds against any Governmental Authority.




          “Goodwill” shall mean, collectively, with respect to each Pledgor, the goodwill
connected with such Pledgor’s business including all goodwill connected with (i) the use of and
symbolized by any Trademark or Intellectual Property License with respect to any Trademark in which
such Pledgor has any interest, (ii) all know-how, trade secrets, customer and supplier lists,
proprietary information, inventions, methods, procedures, formulae, descriptions, compositions,
technical data, drawings, specifications, name plates, catalogs, confidential information and the
right to limit the use or disclosure thereof by any person, pricing and cost information, business
and marketing plans and proposals, consulting agreements, engineering contracts and such other
assets which relate to such goodwill and (iii) all product lines of such Pledgor’s business.




          “Guarantors” shall have the meaning assigned to such term in the Preamble hereof.




          “Instruments” shall mean, collectively, with respect to each Pledgor, all
“instruments,” as such term is defined in Article 9, rather than Article 3, of the UCC, and shall
include all promissory notes, drafts, bills of exchange or acceptances.




          “Intellectual Property Collateral” shall mean, collectively, the Patents, Trademarks,
Copyrights, Intellectual Property Licenses and Goodwill.




          “Intellectual Property Licenses” shall mean, collectively, with respect to each
Pledgor, all license and distribution agreements with, and covenants not to sue, any other party
with respect to any Patent, Trademark or Copyright or any other patent, trademark or copyright,






-5-









 







whether such Pledgor is a licensor or licensee, distributor or distributee under any such
license or distribution agreement, together with any and all (i) renewals, extensions, supplements
and continuations thereof, (ii) income, fees, royalties, damages, claims and payments now and
hereafter due and/or payable thereunder and with respect thereto including damages and payments for
past, present or future infringements or violations thereof, (iii) rights to sue for past, present
and future infringements or violations thereof and (iv) other rights to use, exploit or practice
any or all of the Patents, Trademarks or Copyrights or any other patent, trademark or copyright.




          “Intercompany Notes” shall mean, with respect to each Pledgor, all intercompany notes
described in Schedule 11 to the Perfection Certificate and intercompany notes hereafter
acquired by such Pledgor and all certificates, instruments or agreements evidencing such
intercompany notes, and all assignments, amendments, restatements, supplements, extensions,
renewals, replacements or modifications thereof to the extent permitted pursuant to the terms
hereof.




          “Investment Property” shall mean a security, whether certificated or uncertificated,
Security Entitlement, Securities Account, Commodity Contract or Commodity Account, excluding,
however, the Securities Collateral.




          “Joinder Agreement” shall mean an agreement substantially in the form of Exhibit
3 hereto.




          “LC Account” shall mean any account established and maintained in accordance with the
provisions of Section 2.18(i) of the Credit Agreement and all property from time to time on
deposit in such LC Account.




          “Material Intellectual Property Collateral” shall mean any Intellectual Property
Collateral that is material (i) to the use and operation of the Pledged Collateral or Mortgaged
Property or (ii) to the business, results of operations, prospects or condition, financial or
otherwise, of any Pledgor.




          “Mortgaged Property” shall have the meaning assigned to such term in the Mortgages.




          “Patents” shall mean, collectively, with respect to each Pledgor, all patents issued
or assigned to, and all patent applications and registrations made by, such Pledgor (whether
established or registered or recorded in the United States or any other country or any political
subdivision thereof), together with any and all (i) rights and privileges arising under applicable
law with respect to such Pledgor’s use of any patents, (ii) inventions and improvements described
and claimed therein, (iii) reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof and amendments thereto, (iv) income, fees, royalties, damages, claims
and payments now or hereafter due and/or payable thereunder and with respect thereto including
damages and payments for past, present or future infringements thereof, (v) rights corresponding
thereto throughout the world and (vi) rights to sue for past, present or future infringements
thereof.







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          “Patent Security Agreement” shall mean an agreement substantially in the form of
Exhibit 7 hereto.




          “Perfection Certificate” shall mean that certain perfection certificate dated June 8,
2007, executed and delivered by each Pledgor in favor of the Collateral Agent for the benefit of
the Secured Parties, and each other Perfection Certificate (which shall be in form and substance
reasonably acceptable to the Collateral Agent) executed and delivered by the applicable Guarantor
in favor of the Collateral Agent for the benefit of the Secured Parties contemporaneously with the
execution and delivery of each Joinder Agreement executed in accordance with Section 3.5
hereof, in each case, as the same may be amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with the Credit Agreement or upon the request of the
Collateral Agent.




          “Pledge Amendment” shall have the meaning assigned to such term in Section 5.1
hereof.




          “Pledged Collateral” shall have the meaning assigned to such term in Section
2.1 hereof.




          “Pledged Securities” shall mean, collectively, with respect to each Pledgor, (i) all
issued and outstanding Equity Interests of each issuer set forth on Schedules 10(a) and
10(b) to the Perfection Certificate as being owned by such Pledgor and all options,
warrants, rights, agreements and additional Equity Interests of whatever class of any such issuer
acquired by such Pledgor (including by issuance), together with all rights, privileges, authority
and powers of such Pledgor relating to such Equity Interests in each such issuer or under any
Organizational Document of each such issuer, and the certificates, instruments and agreements
representing such Equity Interests and any and all interest of such Pledgor in the entries on the
books of any financial intermediary pertaining to such Equity Interests, (ii) all Equity Interests
of any issuer, which Equity Interests are hereafter acquired by such Pledgor (including by
issuance) and all options, warrants, rights, agreements and additional Equity Interests of whatever
class of any such issuer acquired by such Pledgor (including by issuance), together with all
rights, privileges, authority and powers of such Pledgor relating to such Equity Interests or under
any Organizational Document of any such issuer, and the certificates, instruments and agreements
representing such Equity Interests and any and all interest of such Pledgor in the entries on the
books of any financial intermediary pertaining to such Equity Interests, from time to time acquired
by such Pledgor in any manner, and (iii) all Equity Interests issued in respect of the Equity
Interests referred to in clause (i) or (ii) upon any consolidation or merger of any issuer of such
Equity Interests; provided, however, that Pledged Securities shall not include any
Equity Interests which are not required to be pledged pursuant to Section 5.11(b) of the
Credit Agreement.




          “Pledgor” shall have the meaning assigned to such term in the Preamble hereof.




          “Receivables” shall mean all (i) Accounts, (ii) Chattel Paper, (iii) Payment
Intangibles, (iv) General Intangibles, (v) Instruments and (vi) all other rights to payment,
whether or not earned by performance, for goods or other property sold, leased, licensed, assigned
or otherwise






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 disposed of, or services rendered or to be rendered, regardless of how classified under
the UCC together with all of Pledgors’ rights, if any, in any goods or other property giving rise
to such right to payment and all Collateral Support and Supporting Obligations related thereto and
all Records relating thereto.




          “Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral
Agent, each other Agent, the Lenders and each party to a Hedging Agreement or a Treasury Services
Agreement if at the date of entering into such Hedging Agreement or Treasury Services Agreement
such person was a Lender or an Affiliate of a Lender and such person executes and delivers to the
Administrative Agent a letter agreement in form and substance acceptable to the Administrative
Agent pursuant to which such person (i) appoints the Collateral Agent as its agent under the
applicable Loan Documents and (ii) agrees to be bound by the provisions of Sections 9.03, 10.03
and 10.09 of the Credit Agreement.




          “Securities Account Control Agreement” shall mean an agreement substantially in the
form of Exhibit 4 hereto or such other form that is reasonably satisfactory to the
Collateral Agent establishing the Collateral Agent’s Control with respect to any Securities
Account.




          “Securities Collateral” shall mean, collectively, the Pledged Securities, the
Intercompany Notes and the Distributions.




          “Trademarks” shall mean, collectively, with respect to each Pledgor, all trademarks
(including service marks), slogans, logos, certification marks, trade dress, uniform resource
locations (URL’s), domain names, corporate names and trade names, whether registered or
unregistered, owned by or assigned to such Pledgor and all registrations and applications for the
foregoing (whether statutory or common law and whether established or registered in the United
States or any other country or any political subdivision thereof), together with any and all (i)
rights and privileges arising under applicable law with respect to such Pledgor’s use of any
trademarks, (ii) reissues, continuations, extensions and renewals thereof and amendments thereto,
(iii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder
and with respect thereto, including damages, claims and payments for past, present or future
infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue
for past, present and future infringements thereof.




          “Trademark Security Agreement” shall mean an agreement substantially in the form of
Exhibit 8 hereto.




          “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the
State of New York; provided, however, that, at any time, if by reason of mandatory
provisions of law, any or all of the perfection or priority of the Collateral Agent’s and the
Secured Parties’ security interest in any item or portion of the Pledged Collateral is governed by
the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the
term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other
jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for
purposes of definitions relating to such provisions.





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          SECTION 1.2. Interpretation. The rules of interpretation specified in the Credit Agreement
(including Section 1.03 thereof) shall be applicable to this Agreement.




          SECTION 1.3. Resolution of Drafting Ambiguities. Each Pledgor acknowledges and agrees that it was
represented by counsel in connection with the execution and delivery hereof, that it and its
counsel reviewed and participated in the preparation and negotiation hereof and that any rule of
construction to the effect that ambiguities are to be resolved against the drafting party
(i.e., the Collateral Agent) shall not be employed in the interpretation hereof.




          SECTION 1.4. Perfection Certificate. The Collateral Agent and each Secured Party agree that the
Perfection Certificate and all descriptions of Pledged Collateral, schedules, amendments and
supplements thereto are and shall at all times remain a part of this Agreement.




ARTICLE II




GRANT OF SECURITY AND SECURED OBLIGATIONS



          SECTION 2.1. Grant of Security Interest. As collateral security for the payment and performance in
full of all the Secured Obligations, each Pledgor hereby pledges and grants to the Collateral Agent
for the benefit of the Secured Parties, a lien on and security interest in all of the right, title
and interest of such Pledgor in, to and under the following property, wherever located, and whether
now existing or hereafter arising or acquired from time to time (collectively, the “Pledged
Collateral”):





	 	(i)	 	all Accounts;
	 
	 	(ii)	 	all Equipment, Goods, Inventory and Fixtures;
	 
	 	(iii)	 	all Documents, Instruments and Chattel Paper;
	 
	 	(iv)	 	all Letters of Credit and Letter-of-Credit Rights;
	 
	 	(v)	 	all Securities Collateral;
	 
	 	(vi)	 	all Investment Property;
	 
	 	(vii)	 	all Intellectual Property Collateral;
	 
	 	(viii)	 	the Commercial Tort Claims described on Schedule 13 to the
Perfection Certificate;
	 
	 	(ix)	 	all General Intangibles;
	 
	 	(x)	 	all Money and all Deposit Accounts;




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	 	(xi)	 	all Supporting Obligations;
	 
	 	(xii)	 	all books and records relating to the Pledged Collateral;
and
	 
	 	(xiii)	 	to the extent not covered by clauses (i) through (xii) of this sentence,
all other personal property of such Pledgor, whether tangible or intangible,
and all Proceeds and products of each of the foregoing and all accessions to,
substitutions and replacements for, and rents, profits and products of, each
of the foregoing, any and all Proceeds of any insurance, indemnity, warranty
or guaranty payable to such Pledgor from time to time with respect to any of
the foregoing.





          Notwithstanding anything to the contrary contained in clauses (i) through (xiii) above, the
security interest created by this Agreement shall not extend to, and the term “Pledged Collateral”
shall not include, any Excluded Property and (i) the Pledgors shall from time to time at the
request of the Collateral Agent give written notice to the Collateral Agent identifying in
reasonable detail the Excluded Property and shall provide to the Collateral Agent such other
information regarding the Excluded Property as the Collateral Agent may reasonably request and (ii)
from and after the Closing Date, no Pledgor shall permit to become effective in any document
creating, governing or providing for any permit, license or agreement a provision that would
prohibit the creation of a Lien on such permit, license or agreement in favor of the Collateral
Agent unless such Pledgor believes, in its reasonable judgment, that such prohibition is usual and
customary in transactions of such type.




          SECTION 2.2. Filings. (a) Each Pledgor hereby irrevocably authorizes the Collateral Agent at any
time and from time to time to file in any relevant jurisdiction any financing statements (including
fixture filings) and amendments thereto that contain the information required by Article 9 of the
Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement
or amendment relating to the Pledged Collateral, including (i) whether such Pledgor is an
organization, the type of organization and any organizational identification number issued to such
Pledgor, (ii) any financing or continuation statements or other documents without the signature of
such Pledgor where permitted by law, including the filing of a financing statement describing the
Pledged Collateral as “all assets now owned or hereafter acquired by the Pledgor or in which
Pledgor otherwise has rights” and (iii) in the case of a financing statement filed as a fixture
filing or covering Pledged Collateral constituting minerals or the like to be extracted or timber
to be cut, a sufficient description of the real property to which such Pledged Collateral relates.
Each Pledgor agrees to provide all information described in the immediately preceding sentence to
the Collateral Agent promptly upon request by the Collateral Agent.




          (b) Each Pledgor hereby ratifies its authorization for the Collateral Agent to file in any
relevant jurisdiction any financing statements relating to the Pledged Collateral if filed prior to
the date hereof.







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          (c) Each Pledgor hereby further authorizes the Collateral Agent to file filings with the
United States Patent and Trademark Office or United States Copyright Office (or any successor
office or any similar office in any other country), including this Agreement, the Copyright
Security Agreement, the Patent Security Agreement and the Trademark Security Agreement, or other
documents for the purpose of perfecting, confirming, continuing, enforcing or protecting the
security interest granted by such Pledgor hereunder, without the signature of such Pledgor, and
naming such Pledgor, as debtor, and the Collateral Agent, as secured party.




ARTICLE III




PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;

USE OF PLEDGED COLLATERAL



          SECTION 3.1. Delivery of Certificated Securities Collateral. Each Pledgor represents and warrants
that all certificates, agreements or instruments representing or evidencing the Securities
Collateral in existence on the date hereof have been delivered to the Collateral Agent in suitable
form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment
in blank and that the Collateral Agent has a perfected first priority security interest therein.
Each Pledgor hereby agrees that all certificates, agreements or instruments representing or
evidencing Securities Collateral acquired by such Pledgor after the date hereof shall promptly (but
in any event within five days after receipt thereof by such Pledgor) be delivered to and held by or
on behalf of the Collateral Agent pursuant hereto. All certificated Securities Collateral shall be
in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the Collateral Agent.
The Collateral Agent shall have the right, at any time upon the occurrence and during the
continuance of any Event of Default, to endorse, assign or otherwise transfer to or to register in
the name of the Collateral Agent or any of its nominees or endorse for negotiation any or all of
the Securities Collateral, without any indication that such Securities Collateral is subject to the
security interest hereunder. In addition, upon the occurrence and during the continuance of an
Event of Default, the Collateral Agent shall have the right at any time to exchange certificates
representing or evidencing Securities Collateral for certificates of smaller or larger
denominations.




          SECTION 3.2. Perfection of Uncertificated Securities Collateral. Each Pledgor represents and
warrants that the Collateral Agent has a perfected first priority security interest in all
uncertificated Pledged Securities pledged by it hereunder that are in existence on the date hereof.
Each Pledgor hereby agrees that if any of the Pledged Securities are at any time not evidenced by
certificates of ownership, then each applicable Pledgor shall, to the extent permitted by
applicable law, (i) cause the issuer to execute and deliver to the Collateral Agent an
acknowledgment of the pledge of such Pledged Securities substantially in the form of Exhibit
1 hereto or such other form that is reasonably satisfactory to the Collateral Agent, (ii) if
necessary or desirable to perfect a security interest in such Pledged Securities, cause such pledge
to be recorded on the equityholder register or the books of the issuer, execute any customary
pledge forms or other






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documents necessary or appropriate to complete the pledge and give the Collateral Agent the
right to transfer such Pledged Securities under the terms hereof, (iii) upon request by the
Collateral Agent, provide to the Collateral Agent an opinion of counsel, in form and substance
reasonably satisfactory to the Collateral Agent, confirming such pledge and perfection thereof, and
(iv) after the occurrence and during the continuance of any Event of Default, upon request by the
Collateral Agent, (A) cause the Organizational Documents of each such issuer that is a Subsidiary
of the Borrower to be amended to provide that such Pledged Securities shall be treated as
“securities” for purposes of the UCC and (B) cause such Pledged Securities to become certificated
and delivered to the Collateral Agent in accordance with the provisions of Section 3.1.




          SECTION 3.3. Financing Statements and Other Filings; Maintenance of Perfected Security Interest.
Each Pledgor represents and warrants that all financing statements, agreements, instruments and
other documents necessary to perfect the security interest granted by it to the Collateral Agent in
respect of the Pledged Collateral have been delivered to the Collateral Agent in completed and, to
the extent necessary or appropriate, duly executed form for filing in each governmental, municipal
or other office specified in Schedule 7 to the Perfection Certificate. Each Pledgor agrees
that at the sole cost and expense of the Pledgors, such Pledgor will maintain the security interest
created by this Agreement in the Pledged Collateral as a perfected first priority security interest
subject only to Permitted Liens.




          SECTION 3.4. Other Actions. In order to further ensure the attachment, perfection and priority of,
and the ability of the Collateral Agent to enforce, the Collateral Agent’s security interest in the
Pledged Collateral, each Pledgor represents and warrants (as to itself) as follows and agrees, in
each case at such Pledgor’s own expense, to take the following actions with respect to the
following Pledged Collateral:





     (a) Instruments and Tangible Chattel Paper. As of the date hereof, no amounts
payable under or in connection with any of the Pledged Collateral are evidenced by any
Instrument or Tangible Chattel Paper other than such Instruments and Tangible Chattel Paper
listed in Schedule 11 to the Perfection Certificate. Each Instrument and each item
of Tangible Chattel Paper listed in Schedule 11 to the Perfection Certificate has
been properly endorsed, assigned and delivered to the Collateral Agent, accompanied by
instruments of transfer or assignment duly executed in blank. If any amount then payable
under or in connection with any of the Pledged Collateral shall be evidenced by any
Instrument or Tangible Chattel Paper, exceeds $50,000 individually or together with all
amounts payable evidenced by any Instrument or Tangible Chattel Paper not previously
delivered to the Collateral Agent exceeds $500,000 in the aggregate for all Pledgors, the
Pledgor acquiring such Instrument or Tangible Chattel Paper shall promptly (but in any event
within five days after receipt thereof) endorse, assign and deliver the same to the
Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in
blank as the Collateral Agent may from time to time specify.




     (b) Deposit Accounts. As of the date hereof, no Pledgor has any Deposit
Accounts other than the accounts listed in Schedule 14 to the Perfection
Certificate. The Collateral Agent has a first priority security interest in each such
Deposit Account, which



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security interest is perfected by Control. No Pledgor shall hereafter establish and
maintain any Deposit Account unless (1) it shall have given the Collateral Agent 30 days’
prior written notice of its intention to establish such new Deposit Account with a Bank, (2)
such Bank shall be reasonably acceptable to the Collateral Agent and (3) such Bank and such
Pledgor shall have duly executed and delivered to the Collateral Agent a Deposit Account
Control Agreement with respect to such Deposit Account. The Collateral Agent agrees with
each Pledgor that the Collateral Agent shall not give any instructions directing the
disposition of funds from time to time credited to any Deposit Account or withhold any
withdrawal rights from such Pledgor with respect to funds from time to time credited to any
Deposit Account unless an Event of Default has occurred and is continuing. The provisions
of this Section 3.4(b) shall not apply to the LC Account or to any other Deposit
Accounts for which the Collateral Agent is the Bank. No Pledgor shall grant Control of any
Deposit Account to any person other than the Collateral Agent.




     (c) Securities Accounts and Commodity Accounts. (i) As of the date hereof, no
Pledgor has any Securities Accounts or Commodity Accounts other than those listed in
Schedule 14 to the Perfection Certificate. The Collateral Agent has a first
priority security interest in each such Securities Account and Commodity Account, which
security interest is perfected by Control. No Pledgor shall hereafter establish and
maintain any Securities Account or Commodity Account with any Securities Intermediary or
Commodity Intermediary unless (1) it shall have given the Collateral Agent 30 days’ prior
written notice of its intention to establish such new Securities Account or Commodity
Account with such Securities Intermediary or Commodity Intermediary, (2) such Securities
Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral
Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be,
and such Pledgor shall have duly executed and delivered a Control Agreement with respect to
such Securities Account or Commodity Account, as the case may be. Each Pledgor shall accept
any cash and Investment Property in trust for the benefit of the Collateral Agent and within
one (1) Business Day of actual receipt thereof, deposit any and all cash and Investment
Property received by it into a Deposit Account or Securities Account subject to Collateral
Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent
shall not give any Entitlement Orders or instructions or directions to any issuer of
uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not
withhold its consent to the exercise of any withdrawal or dealing rights by such Pledgor,
unless an Event of Default has occurred and is continuing or, after giving effect to any
such investment and withdrawal rights, would occur. The provisions of this Section
3.4(c) shall not apply to any Financial Assets credited to a Securities Account for
which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control
over any Investment Property to any person other than the Collateral Agent.




     (ii) As between the Collateral Agent and the Pledgors, the Pledgors shall bear the
investment risk with respect to the Investment Property and Pledged Securities, and the risk
of loss of, damage to, or the destruction of the Investment Property and Pledged



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Securities, whether in the possession of, or maintained as a Security Entitlement or
deposit by, or subject to the Control of, the Collateral Agent, a Securities Intermediary, a
Commodity Intermediary, any Pledgor or any other person.




     (d) Electronic Chattel Paper and Transferable Records. As of the date hereof,
no amount under or in connection with any of the Pledged Collateral is evidenced by any
Electronic Chattel Paper or any “transferable record” (as that term is defined in Section
201 of the Federal Electronic Signatures in Global and National Commerce Act, or in Section
16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction)
other than such Electronic Chattel Paper and transferable records listed in Schedule
11 to the Perfection Certificate. If any amount payable under or in connection with any
of the Pledged Collateral shall be evidenced by any Electronic Chattel Paper or any
transferable record, the Pledgor acquiring such Electronic Chattel Paper or transferable
record shall promptly notify the Collateral Agent thereof and shall take such action as the
Collateral Agent may reasonably request to vest in the Collateral Agent control of such
Electronic Chattel Paper under Section 9-105 of the UCC or control under Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act or, as the case may be,
Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction,
of such transferable record. The requirement in the preceding sentence shall not apply to
the extent that such amount, together with all amounts payable evidenced by Electronic
Chattel Paper or any transferable record in which the Collateral Agent has not been vested
control within the meaning of the statutes described in the immediately preceding sentence,
does not exceed $50,000 for any individual Electronic Chattel Paper or any transferable
record or $500,000 in the aggregate for all such Electronic Chattel Paper and transferable
records of the Pledgors. The Collateral Agent agrees with such Pledgor that the Collateral
Agent will arrange, pursuant to procedures satisfactory to the Collateral Agent and so long
as such procedures will not result in the Collateral Agent’s loss of control, for the
Pledgor to make alterations to the Electronic Chattel Paper or transferable record permitted
under Section 9-105 of the UCC or, as the case may be, Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic
Transactions Act for a party in control to allow without loss of control, unless an Event of
Default has occurred and is continuing or would occur after taking into account any action
by such Pledgor with respect to such Electronic Chattel Paper or transferable record.




     (e) Letter-of-Credit Rights. If any Pledgor is at any time a beneficiary under
a Letter of Credit now or hereafter issued, such Pledgor shall promptly notify the
Collateral Agent thereof and such Pledgor shall, at the request of the Collateral Agent,
pursuant to an agreement in form and substance reasonably satisfactory to the Collateral
Agent, either (i) arrange for the issuer and any confirmer of such Letter of Credit to
consent to an assignment to the Collateral Agent of the proceeds of any drawing under the
Letter of Credit or (ii) arrange for the Collateral Agent to become the transferee
beneficiary of such Letter of Credit, with the Collateral Agent agreeing, in each case, that
the proceeds



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of any drawing under the Letter of Credit are to be applied as provided in the Credit
Agreement.




     (f) Commercial Tort Claims. As of the date hereof, each Pledgor hereby
represents and warrants that it holds no Commercial Tort Claims other than those listed in
Schedule 13 to the Perfection Certificate. If any Pledgor shall at any time hold or
acquire a Commercial Tort Claim, such Pledgor shall immediately notify the Collateral Agent
in writing signed by such Pledgor of the brief details thereof and grant to the Collateral
Agent in such writing a security interest therein and in the Proceeds thereof, all upon the
terms of this Agreement, with such writing to be in form and substance reasonably
satisfactory to the Collateral Agent. The requirement in the preceding sentence shall not
apply to the extent that the amount of such Commercial Tort Claim does not exceed $50,000
individually and does not exceed, together with the amount of all other Commercial Tort
Claims held by any Pledgor in which the Collateral Agent does not have a security interest
$500,000 in the aggregate for all Pledgors.




     (g) Landlord’s Access Agreements/Bailee Letters. Each Pledgor shall use its
commercially reasonable efforts to obtain as soon as practicable after the date hereof with
respect to each location set forth in Schedule 4.01(n)(vi) to the Credit Agreement,
where such Pledgor maintains Pledged Collateral, a Bailee Letter and/or Landlord Access
Agreement, as applicable, and use commercially reasonable efforts to obtain a Bailee Letter,
Landlord Access Agreement and/or landlord’s lien waiver, as applicable, from all such
bailees and landlords, as applicable, who from time to time have possession of any Pledged
Collateral if reasonably requested by the Collateral Agent. A waiver of bailee’s lien shall
not be required if the value of the Pledged Collateral held by such bailee is less than
$10,000, provided that the aggregate value of the Pledged Collateral held by all bailees who
have not delivered a Bailee Letter is less than $200,000 in the aggregate




     (h) Motor Vehicles. Upon the request of the Collateral Agent, each Pledgor
shall deliver to the Collateral Agent originals of the certificates of title or ownership
for the motor vehicles (and any other Equipment covered by certificates of title or
ownership) owned by it, with the Collateral Agent listed as lienholder therein. Such
requirement shall not apply if any such motor vehicle (or any such other Equipment) is
valued at less than $50,000, provided that the aggregate value of all motor vehicles (and
such Equipment) as to which any Pledgor has not delivered a certificate of title or
ownership is less than $500,000.



          SECTION 3.5. Joinder of Additional Guarantors. The Pledgors shall cause each Subsidiary of the
Borrower which, from time to time, after the date hereof shall be required to pledge any assets to
the Collateral Agent for the benefit of the Secured Parties pursuant to the provisions of the
Credit Agreement, (a) to execute and deliver to the Collateral Agent (i) a Joinder Agreement
substantially in the form of Exhibit 3 hereto and (ii) a Perfection Certificate, in each
case, within thirty (30) days of the date on which it was acquired or created or (b) in the case of
a Subsidiary organized outside of the United States required to pledge any assets to the Collateral
Agent, to execute and deliver to the Collateral Agent such documentation as the Collateral






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 Agent shall reasonably request and, in each case with respect to clauses (a) and (b)
above, upon such execution and delivery, such Subsidiary shall constitute a “Guarantor” and a
“Pledgor” for all purposes hereunder with the same force and effect as if originally named as a
Guarantor and Pledgor herein. The execution and delivery of such Joinder Agreement shall not
require the consent of any Pledgor hereunder. The rights and obligations of each Pledgor hereunder
shall remain in full force and effect notwithstanding the addition of any new Guarantor and Pledgor
as a party to this Agreement.




          SECTION 3.6. Supplements; Further Assurances. Each Pledgor shall take such further actions, and
execute and/or deliver to the Collateral Agent such additional financing statements, amendments,
assignments, agreements, supplements, powers and instruments, as the Collateral Agent may in its
reasonable judgment deem necessary or appropriate in order to create, perfect, preserve and protect
the security interest in the Pledged Collateral as provided herein and the rights and interests
granted to the Collateral Agent hereunder, to carry into effect the purposes hereof or better to
assure and confirm the validity, enforceability and priority of the Collateral Agent’s security
interest in the Pledged Collateral or permit the Collateral Agent to exercise and enforce its
rights, powers and remedies hereunder with respect to any Pledged Collateral, including the filing
of financing statements, continuation statements and other documents (including this Agreement)
under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with
respect to the security interest created hereby and the execution and delivery of Control
Agreements, all in forms reasonably satisfactory to the Collateral Agent and in such offices
(including the United States Patent and Trademark Office and the United States Copyright Office)
wherever required by law to perfect, continue and maintain the validity, enforceability and
priority of the security interest in the Pledged Collateral as provided herein and to preserve the
other rights and interests granted to the Collateral Agent hereunder, as against third parties,
with respect to the Pledged Collateral. Without limiting the generality of the foregoing, each
Pledgor shall make, execute, endorse, acknowledge, file or refile and/or deliver to the Collateral
Agent from time to time upon reasonable request by the Collateral Agent such lists, schedules,
descriptions and designations of the Pledged Collateral, copies of warehouse receipts, receipts in
the nature of warehouse receipts, bills of lading, documents of title, vouchers, invoices,
schedules, confirmatory assignments, supplements, additional security agreements, conveyances,
financing statements, transfer endorsements, powers of attorney, certificates, reports and other
assurances or instruments as the Collateral Agent shall reasonably request. If an Event of Default
has occurred and is continuing, the Collateral Agent may institute and maintain, in its own name or
in the name of any Pledgor, such suits and proceedings as the Collateral Agent may be advised by
counsel shall be necessary or expedient to prevent any impairment of the security interest in or
the perfection thereof in the Pledged Collateral. All of the foregoing shall be at the sole cost
and expense of the Pledgors.





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ARTICLE IV




REPRESENTATIONS, WARRANTIES AND COVENANTS


          Each Pledgor represents, warrants and covenants as follows:


          SECTION 4.1. Title. Except for the security interest granted to the Collateral Agent for
the benefit of the Secured Parties pursuant to this Agreement and Permitted Liens, such Pledgor
owns and has rights and, as to Pledged Collateral acquired by it from time to time after the date
hereof, will own and have rights in each item of Pledged Collateral pledged by it hereunder, free
and clear of any and all Liens or claims of others. In addition, no Liens or claims exist on the
Securities Collateral, other than as permitted by Section 6.02 of the Credit Agreement.


          SECTION 4.2. Validity of Security Interest. The security interest in and Lien on the
Pledged Collateral granted to the Collateral Agent for the benefit of the Secured Parties hereunder
constitutes (a) a legal and valid security interest in all the Pledged Collateral securing the
payment and performance of the Secured Obligations, and (b) subject to the filings and other
actions described in Schedule 7 to the Perfection Certificate (to the extent required to be
listed on the schedules to the Perfection Certificate as of the date this representation is made or
deemed made), a perfected security interest in all the Pledged Collateral. The security interest
and Lien granted to the Collateral Agent for the benefit of the Secured Parties pursuant to this
Agreement in and on the Pledged Collateral will at all times constitute a perfected, continuing
security interest therein, prior to all other Liens on the Pledged Collateral except for Permitted
Liens.


          SECTION 4.3. Defense of Claims; Transferability of Pledged Collateral. Subject to
Section 5.05 of the Credit Agreement, each Pledgor shall, at its own cost and expense,
defend title to the Pledged Collateral pledged by it hereunder and the security interest therein
and Lien thereon granted to the Collateral Agent and the priority thereof against all claims and
demands of all persons, at its own cost and expense, at any time claiming any interest therein
adverse to the Collateral Agent or any other Secured Party other than Permitted Liens. There is no
agreement, order, judgment or decree, and no Pledgor shall enter into any agreement or take any
other action, that would restrict the transferability of any of the Pledged Collateral or otherwise
impair or conflict with such Pledgor’s obligations or the rights of the Collateral Agent hereunder.


          SECTION 4.4. Other Financing Statements. It has not filed, nor authorized any third
party to file (nor will there be), any valid or effective financing statement (or similar
statement, instrument of registration or public notice under the law of any jurisdiction) covering
or purporting to cover any interest of any kind in the Pledged Collateral, except such as have been
filed in favor of the Collateral Agent pursuant to this Agreement or in favor of any holder of a
Permitted Lien with respect to such Permitted Lien or financing statements or public notices
relating to the termination statements listed on Schedule 9 to the Perfection Certificate.
No Pledgor shall execute, authorize or permit to be filed in any public office any financing
statement (or similar statement, instrument of registration or public notice under the law of any
jurisdiction)



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relating to any Pledged Collateral, except financing statements and other statements and
instruments filed or to be filed in respect of and covering the security interests granted by such
Pledgor to the holder of the Permitted Liens.



          SECTION 4.5. Location of Inventory and Equipment. It shall not move any Equipment or
Inventory to any location, other than any location that is listed in the relevant Schedules to the
Perfection Certificate, unless (i) it shall have given the Collateral Agent not less than 30 days’
prior written notice (in the form of an Officers’ Certificate) of its intention so to do, clearly
describing such new location and providing such other information in connection therewith as the
Collateral Agent may request and (ii) to the extent applicable with respect to such new location,
such Pledgor shall have complied with Section 3.4(g); provided that in no event shall any Equipment
or Inventory be moved to any location outside of the continental United States.


          SECTION 4.6. Due Authorization and Issuance. All of the Pledged Securities existing
on the date hereof have been, and to the extent any Pledged Securities are hereafter issued, such
Pledged Securities will be, upon such issuance, duly authorized, validly issued and fully paid and
non-assessable to the extent applicable. There is no amount or other obligation owing by any
Pledgor to any issuer of the Pledged Securities in exchange for or in connection with the issuance
of the Pledged Securities or any Pledgor’s status as a partner or a member of any issuer of the
Pledged Securities.


          SECTION 4.7. Consents, etc. In the event that the Collateral Agent desires to exercise any
remedies, voting or consensual rights or attorney-in-fact powers set forth in this Agreement and
determines it necessary to obtain any approvals or consents of any Governmental Authority or any
other person therefor, then, upon the reasonable request of the Collateral Agent, such Pledgor
agrees to use its best efforts to assist and aid the Collateral Agent to obtain as soon as
practicable any necessary approvals or consents for the exercise of any such remedies, rights and
powers.


          SECTION 4.8. Pledged Collateral. All information set forth herein, including the
schedules hereto, and all information contained in any documents, schedules and lists heretofore
delivered to any Secured Party, including the Perfection Certificate and the schedules thereto, in
connection with this Agreement, in each case, relating to the Pledged Collateral, is accurate and
complete in all material respects. The Pledged Collateral described on the schedules to the
Perfection Certificate constitutes all of the property of such type of Pledged Collateral owned or
held by the Pledgors.


          SECTION 4.9. Insurance. In the event that the proceeds of any insurance claim are
paid to any Pledgor after the Collateral Agent has exercised its right to foreclose after an Event
of Default, such Net Cash Proceeds shall be held in trust for the benefit of the Collateral Agent
and immediately after receipt thereof shall be paid to the Collateral Agent for application in
accordance with the Credit Agreement.



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ARTICLE V




CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL


          SECTION 5.1. Pledge of Additional Securities Collateral. Each Pledgor shall, upon
obtaining any Pledged Securities or Intercompany Notes of any person, accept the same in trust for
the benefit of the Collateral Agent and promptly (but in any event within five days after receipt
thereof) deliver to the Collateral Agent a pledge amendment, duly executed by such Pledgor, in
substantially the form of Exhibit 2 hereto (each, a “Pledge Amendment”), and the
certificates and other documents required under Section 3.1 and Section 3.2 hereof
in respect of the additional Pledged Securities or Intercompany Notes which are to be pledged
pursuant to this Agreement, and confirming the attachment of the Lien hereby created on and in
respect of such additional Pledged Securities or Intercompany Notes. Each Pledgor hereby
authorizes the Collateral Agent to attach each Pledge Amendment to this Agreement and agrees that
all Pledged Securities or Intercompany Notes listed on any Pledge Amendment delivered to the
Collateral Agent shall for all purposes hereunder be considered Pledged Collateral.


          SECTION 5.2. Voting Rights; Distributions; etc.


          (a) So long as no Event of Default shall have occurred and be continuing:




     (i) Each Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Securities Collateral or any part thereof for any purpose not
inconsistent with the terms or purposes hereof, the Credit Agreement or any other document
evidencing the Secured Obligations; provided, however, that no Pledgor shall
in any event exercise such rights in any manner which could reasonably be expected to have a
Material Adverse Effect.




     (ii) Each Pledgor shall be entitled to receive and retain, and to utilize free and
clear of the Lien hereof, any and all Distributions, but only if and to the extent made in
accordance with the provisions of the Credit Agreement; provided, however,
that any and all such Distributions consisting of rights or interests in the form of
securities shall be forthwith delivered to the Collateral Agent to hold as Pledged
Collateral and shall, if received by any Pledgor, be received in trust for the benefit of
the Collateral Agent, be segregated from the other property or funds of such Pledgor and be
promptly (but in any event within five days after receipt thereof) delivered to the
Collateral Agent as Pledged Collateral in the same form as so received (with any necessary
endorsement).


          (b) So long as no Event of Default shall have occurred and be continuing, the Collateral Agent
shall be deemed without further action or formality to have granted to each Pledgor all necessary
consents relating to voting rights and shall, if necessary, upon written request of any Pledgor and
at the sole cost and expense of the Pledgors, from time to time execute and deliver (or cause to be
executed and delivered) to such Pledgor all such instruments as such Pledgor may reasonably request
in order to permit such Pledgor to exercise the voting and other



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rights which it is entitled to exercise pursuant to Section 5.2(a)(i) hereof and to
receive the Distributions which it is authorized to receive and retain pursuant to
Section 5.2(a)(ii) hereof.



          (c) Upon the occurrence and during the continuance of any Event of Default:




     (i) All rights of each Pledgor to exercise the voting and other consensual rights it
would otherwise be entitled to exercise pursuant to Section 5.2(a)(i) hereof shall
immediately cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall thereupon have the sole right to exercise such voting and other
consensual rights.




     (ii) All rights of each Pledgor to receive Distributions which it would otherwise be
authorized to receive and retain pursuant to Section 5.2(a)(ii) hereof shall
immediately cease and all such rights shall thereupon become vested in the Collateral Agent,
which shall thereupon have the sole right to receive and hold as Pledged Collateral such
Distributions.


          (d) Each Pledgor shall, at its sole cost and expense, from time to time execute and deliver to
the Collateral Agent appropriate instruments as the Collateral Agent may request in order to permit
the Collateral Agent to exercise the voting and other rights which it may be entitled to exercise
pursuant to Section 5.2(c)(i) hereof and to receive all Distributions which it may be
entitled to receive under Section 5.2(c)(ii) hereof.


          (e) All Distributions which are received by any Pledgor contrary to the provisions of
Section 5.2(a)(ii) hereof shall be received in trust for the benefit of the Collateral
Agent, shall be segregated from other funds of such Pledgor and shall immediately be paid over to
the Collateral Agent as Pledged Collateral in the same form as so received (with any necessary
endorsement).


          SECTION 5.3. Defaults, etc. Each Pledgor hereby represents and warrants that (i) such
Pledgor is not in default in the payment of any portion of any mandatory capital contribution, if
any, required to be made under any agreement to which such Pledgor is a party relating to the
Pledged Securities pledged by it, and such Pledgor is not in violation of any other provisions of
any such agreement to which such Pledgor is a party, or otherwise in default or violation
thereunder, (ii) no Securities Collateral pledged by such Pledgor is subject to any defense, offset
or counterclaim, nor have any of the foregoing been asserted or alleged against such Pledgor by any
person with respect thereto, and (iii) as of the date hereof, there are no certificates,
instruments, documents or other writings (other than the Organizational Documents and certificates
representing such Pledged Securities that have been delivered to the Collateral Agent) which
evidence any Pledged Securities of such Pledgor.



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          SECTION 5.4. Certain Agreements of Pledgors As Issuers and Holders of Equity
Interests.


          (a) In the case of each Pledgor which is an issuer of Securities Collateral, such Pledgor
agrees to be bound by the terms of this Agreement relating to the Securities Collateral issued by
it and will comply with such terms insofar as such terms are applicable to it.


          (b) In the case of each Pledgor which is a partner, shareholder or member, as the case may be,
in a partnership, limited liability company or other entity, such Pledgor hereby consents to the
extent required by the applicable Organizational Document to the pledge by each other Pledgor,
pursuant to the terms hereof, of the Pledged Securities in such partnership, limited liability
company or other entity and, upon the occurrence and during the continuance of an Event of Default,
to the transfer of such Pledged Securities to the Collateral Agent or its nominee and to the
substitution of the Collateral Agent or its nominee as a substituted partner, shareholder or member
in such partnership, limited liability company or other entity with all the rights, powers and
duties of a general partner, limited partner, shareholder or member, as the case may be.



ARTICLE VI




CERTAIN PROVISIONS CONCERNING INTELLECTUAL

PROPERTY COLLATERAL


          SECTION 6.1. Grant of Intellectual Property License. For the purpose of enabling the
Collateral Agent, during the continuance of an Event of Default, to exercise rights and remedies
under Article IX hereof at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, and for no other purpose, each Pledgor hereby grants to the
Collateral Agent, to the extent assignable, an irrevocable, non-exclusive license to use, assign,
license or sublicense any of the Intellectual Property Collateral now owned or hereafter acquired
by such Pledgor, wherever the same may be located. Such license shall include access to all media
in which any of the licensed items may be recorded or stored and to all computer programs used for
the compilation or printout thereof.


          SECTION 6.2. Protection of Collateral Agent’s Security. On a continuing basis, each
Pledgor shall, at its sole cost and expense, (i) promptly following its becoming aware thereof,
notify the Collateral Agent of any adverse determination in any proceeding or the institution of
any proceeding in any federal, state or local court or administrative body or in the United States
Patent and Trademark Office or the United States Copyright Office regarding any Material
Intellectual Property Collateral, such Pledgor’s right to register such Material Intellectual
Property Collateral or its right to keep and maintain such registration in full force and effect,
(ii) maintain all Material Intellectual Property Collateral as presently used and operated,
(iii) not permit to lapse or become abandoned any Material Intellectual Property Collateral, and
not settle or compromise any pending or future litigation or administrative proceeding with respect
to any such Material Intellectual Property Collateral, in either case except as shall be consistent
with



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commercially reasonable business judgment, (iv) upon such Pledgor obtaining knowledge thereof,
promptly notify the Collateral Agent in writing of any event which may be reasonably expected to
materially and adversely affect the value or utility of any Material Intellectual Property
Collateral or the rights and remedies of the Collateral Agent in relation thereto including a levy
or threat of levy or any legal process against any Material Intellectual Property Collateral,
(v) not license any Intellectual Property Collateral other than licenses entered into by such
Pledgor in, or incidental to, the ordinary course of business, or amend or permit the amendment of
any of the licenses in a manner that materially and adversely affects the right to receive payments
thereunder, or in any manner that would materially impair the value of any Intellectual Property
Collateral or the Lien on and security interest in the Intellectual Property Collateral created
therein hereby, without the consent of the Collateral Agent, (vi) diligently keep adequate records
respecting all Intellectual Property Collateral and (vii) furnish to the Collateral Agent from time
to time upon the Collateral Agent’s request therefor reasonably detailed statements and amended
schedules further identifying and describing the Intellectual Property Collateral and such other
materials evidencing or reports pertaining to any Intellectual Property Collateral as the
Collateral Agent may from time to time request.



          SECTION 6.3. After-Acquired Property. If any Pledgor shall at any time after the date
hereof (i) obtain any rights to any additional Intellectual Property Collateral or (ii) become
entitled to the benefit of any additional Intellectual Property Collateral or any renewal or
extension thereof, including any reissue, division, continuation, or continuation-in-part of any
Intellectual Property Collateral, or any improvement on any Intellectual Property Collateral, or if
any intent-to use trademark application is no longer subject to clause (c) of the definition of
Excluded Property, the provisions hereof shall automatically apply thereto and any such item
enumerated in the preceding clause (i) or (ii) shall automatically constitute Intellectual Property
Collateral as if such would have constituted Intellectual Property Collateral at the time of
execution hereof and be subject to the Lien and security interest created by this Agreement without
further action by any party. Each Pledgor shall promptly provide to the Collateral Agent written
notice of any of the foregoing and confirm the attachment of the Lien and security interest created
by this Agreement to any rights described in clauses (i) and (ii) above by execution of an
instrument in form reasonably acceptable to the Collateral Agent and the filing of any instruments
or statements as shall be reasonably necessary to create, preserve, protect or perfect the
Collateral Agent’s security interest in such Intellectual Property Collateral. Further, each
Pledgor authorizes the Collateral Agent to modify this Agreement by amending Schedules
12(a) and 12(b) to the Perfection Certificate to include any Intellectual Property
Collateral of such Pledgor acquired or arising after the date hereof.


          SECTION 6.4. Litigation. Unless there shall occur and be continuing any Event of
Default, each Pledgor shall have the right to commence and prosecute in its own name, as the party
in interest, for its own benefit and at the sole cost and expense of the Pledgors, such
applications for protection of the Intellectual Property Collateral and suits, proceedings or other
actions to prevent the infringement, counterfeiting, unfair competition, dilution, diminution in
value or other damage as are necessary to protect the Intellectual Property Collateral. Upon the
occurrence and during the continuance of any Event of Default, the Collateral Agent shall have



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the right but shall in no way be obligated to file applications for protection of the
Intellectual Property Collateral and/or bring suit in the name of any Pledgor, the Collateral Agent
or the Secured Parties to enforce the Intellectual Property Collateral and any license thereunder.
In the event of such suit, each Pledgor shall, at the reasonable request of the Collateral Agent,
do any and all lawful acts and execute any and all documents requested by the Collateral Agent in
aid of such enforcement and the Pledgors shall promptly reimburse and indemnify the Collateral
Agent for all costs and expenses incurred by the Collateral Agent in the exercise of its rights
under this Section 6.4 in accordance with Section 10.03 of the Credit Agreement.
In the event that the Collateral Agent shall elect not to bring suit to enforce the Intellectual
Property Collateral, each Pledgor agrees, at the reasonable request of the Collateral Agent, to
take all commercially reasonable actions necessary, whether by suit, proceeding or other action, to
prevent the infringement, counterfeiting, unfair competition, dilution, diminution in value of or
other damage to any of the Intellectual Property Collateral by any person.




ARTICLE VII




CERTAIN PROVISIONS CONCERNING RECEIVABLES


          SECTION 7.1. Maintenance of Records. Each Pledgor shall keep and maintain at its own
cost and expense complete records of each Receivable, in a manner consistent with prudent business
practice, including records of all payments received, all credits granted thereon, all merchandise
returned and all other documentation relating thereto. Each Pledgor shall, at such Pledgor’s sole
cost and expense, upon the Collateral Agent’s demand made at any time after the occurrence and
during the continuance of any Event of Default, deliver all tangible evidence of Receivables,
including all documents evidencing Receivables and any books and records relating thereto to the
Collateral Agent or to its representatives (copies of which evidence and books and records may be
retained by such Pledgor). Upon the occurrence and during the continuance of any Event of Default,
the Collateral Agent may transfer a full and complete copy of any Pledgor’s books, records, credit
information, reports, memoranda and all other writings relating to the Receivables to and for the
use by any person that has acquired or is contemplating acquisition of an interest in the
Receivables or the Collateral Agent’s security interest therein without the consent of any Pledgor.


          SECTION 7.2. Legend. Each Pledgor shall legend, at the request of the Collateral
Agent and in form and manner satisfactory to the Collateral Agent, the Receivables and the other
books, records and documents of such Pledgor evidencing or pertaining to the Receivables with an
appropriate reference to the fact that the Receivables have been assigned to the Collateral Agent
for the benefit of the Secured Parties and that the Collateral Agent has a security interest
therein.


          SECTION 7.3. Modification of Terms, etc. No Pledgor shall rescind or cancel any
obligations evidenced by any Receivable or modify any term thereof or make any adjustment with
respect thereto except in the ordinary course of business consistent with prudent business



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practice, or extend or renew any such obligations except in the ordinary course of business
consistent with prudent business practice or compromise or settle any dispute, claim, suit or legal
proceeding relating thereto or sell any Receivable or interest therein except in the ordinary
course of business consistent with prudent business practice without the prior written consent of
the Collateral Agent. Each Pledgor shall timely fulfill all obligations on its part to be
fulfilled under or in connection with the Receivables.



          SECTION 7.4. Collection. Each Pledgor shall cause to be collected from the Account
Debtor of each of the Receivables, as and when due in the ordinary course of business and
consistent with prudent business practice (including Receivables that are delinquent, such
Receivables to be collected in accordance with generally accepted commercial collection
procedures), any and all amounts owing under or on account of such Receivable, and apply forthwith
upon receipt thereof all such amounts as are so collected to the outstanding balance of such
Receivable, except that any Pledgor may, with respect to a Receivable, allow in the ordinary course
of business (i) a refund or credit due as a result of returned or damaged or defective merchandise
and (ii) such extensions of time to pay amounts due in respect of Receivables and such other
modifications of payment terms or settlements in respect of Receivables as shall be commercially
reasonable in the circumstances, all in accordance with such Pledgor’s ordinary course of business
consistent with its collection practices as in effect from time to time. The costs and expenses
(including attorneys’ fees) of collection, in any case, whether incurred by any Pledgor, the
Collateral Agent or any Secured Party, shall be paid by the Pledgors.



ARTICLE VIII




TRANSFERS


          SECTION 8.1. Transfers of Pledged Collateral. No Pledgor shall sell, convey, assign
or otherwise dispose of, or grant any option with respect to, any of the Pledged Collateral pledged
by it hereunder except as expressly permitted by the Credit Agreement.



ARTICLE IX




REMEDIES


          SECTION 9.1. Remedies. Upon the occurrence and during the continuance of any Event of
Default, the Collateral Agent may from time to time exercise in respect of the Pledged Collateral,
in addition to the other rights and remedies provided for herein or otherwise available to it, the
following remedies:


          (i) Personally, or by agents or attorneys, immediately take possession of the Pledged
Collateral or any part thereof, from any Pledgor or any other person who then has possession of any
part thereof with or without notice or process of law, and for that purpose may



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enter upon any Pledgor’s premises where any of the Pledged Collateral is located, remove such
Pledged Collateral, remain present at such premises to receive copies of all communications and
remittances relating to the Pledged Collateral and use in connection with such removal and
possession any and all services, supplies, aids and other facilities of any Pledgor;



          (ii) Demand, sue for, collect or receive any money or property at any time payable or
receivable in respect of the Pledged Collateral including instructing the obligor or obligors on
any agreement, instrument or other obligation constituting part of the Pledged Collateral to make
any payment required by the terms of such agreement, instrument or other obligation directly to the
Collateral Agent, and in connection with any of the foregoing, compromise, settle, extend the time
for payment and make other modifications with respect thereto; provided, however,
that in the event that any such payments are made directly to any Pledgor, prior to receipt by any
such obligor of such instruction, such Pledgor shall segregate all amounts received pursuant
thereto in trust for the benefit of the Collateral Agent and shall promptly (but in no event later
than one (1) Business Day after receipt thereof) pay such amounts to the Collateral Agent;


          (iii) Sell, assign, grant a license to use or otherwise liquidate, or direct any Pledgor to
sell, assign, grant a license to use or otherwise liquidate, any and all investments made in whole
or in part with the Pledged Collateral or any part thereof, and take possession of the proceeds of
any such sale, assignment, license or liquidation;


          (iv) Take possession of the Pledged Collateral or any part thereof, by directing any Pledgor
in writing to deliver the same to the Collateral Agent at any place or places so designated by the
Collateral Agent, in which event such Pledgor shall at its own expense: (A) forthwith cause the
same to be moved to the place or places designated by the Collateral Agent and therewith delivered
to the Collateral Agent, (B) store and keep any Pledged Collateral so delivered to the Collateral
Agent at such place or places pending further action by the Collateral Agent and (C) while the
Pledged Collateral shall be so stored and kept, provide such security and maintenance services as
shall be necessary to protect the same and to preserve and maintain them in good condition. Each
Pledgor’s obligation to deliver the Pledged Collateral as contemplated in this
Section 9.1(iv) is of the essence hereof. Upon application to a court of equity having
jurisdiction, the Collateral Agent shall be entitled to a decree requiring specific performance by
any Pledgor of such obligation;


          (v) Withdraw all moneys, instruments, securities and other property in any bank, financial
securities, deposit or other account of any Pledgor constituting Pledged Collateral for application
to the Secured Obligations as provided in Article X hereof;


          (vi) Retain and apply the Distributions to the Secured Obligations as provided in
Article X hereof;


          (vii) Exercise any and all rights as beneficial and legal owner of the Pledged Collateral,
including perfecting assignment of and exercising any and all voting, consensual and other rights
and powers with respect to any Pledged Collateral; and




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          (viii) Exercise all the rights and remedies of a secured party on default under the UCC, and
the Collateral Agent may also in its sole discretion, without notice except as specified in
Section 9.2 hereof, sell, assign or grant a license to use the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or
at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery,
and at such price or prices and upon such other terms as the Collateral Agent may deem commercially
reasonable. The Collateral Agent or any other Secured Party or any of their respective Affiliates
may be the purchaser, licensee, assignee or recipient of the Pledged Collateral or any part thereof
at any such sale and shall be entitled, for the purpose of bidding and making settlement or payment
of the purchase price for all or any portion of the Pledged Collateral sold, assigned or licensed
at such sale, to use and apply any of the Secured Obligations owed to such person as a credit on
account of the purchase price of the Pledged Collateral or any part thereof payable by such person
at such sale. Each purchaser, assignee, licensee or recipient at any such sale shall acquire the
property sold, assigned or licensed absolutely free from any claim or right on the part of any
Pledgor, and each Pledgor hereby waives, to the fullest extent permitted by law, all rights of
redemption, stay and/or appraisal which it now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted. The Collateral Agent shall not be
obligated to make any sale of the Pledged Collateral or any part thereof regardless of notice of
sale having been given. The Collateral Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned. Each Pledgor hereby waives, to
the fullest extent permitted by law, any claims against the Collateral Agent arising by reason of
the fact that the price at which the Pledged Collateral or any part thereof may have been sold,
assigned or licensed at such a private sale was less than the price which might have been obtained
at a public sale, even if the Collateral Agent accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree.


          SECTION 9.2. Notice of Sale. Each Pledgor acknowledges and agrees that, to the extent
notice of sale or other disposition of the Pledged Collateral or any part thereof shall be required
by law, ten (10) days’ prior notice to such Pledgor of the time and place of any public sale or of
the time after which any private sale or other intended disposition is to take place shall be
commercially reasonable notification of such matters. No notification need be given to any Pledgor
if it has signed, after the occurrence of an Event of Default, a statement renouncing or modifying
any right to notification of sale or other intended disposition.


          SECTION 9.3. Waiver of Notice and Claims. Each Pledgor hereby waives, to the fullest
extent permitted by applicable law, notice or judicial hearing in connection with the Collateral
Agent’s taking possession or the Collateral Agent’s disposition of the Pledged Collateral or any
part thereof, including any and all prior notice and hearing for any prejudgment remedy or remedies
and any such right which such Pledgor would otherwise have under law, and each Pledgor hereby
further waives, to the fullest extent permitted by applicable law: (i) all damages occasioned by
such taking of possession, (ii) all other requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of the Collateral Agent’s rights hereunder and
(iii) all rights of redemption, appraisal, valuation, stay, extension or moratorium



-26-









 








now or hereafter in force under any applicable law. The Collateral Agent shall not be
liable for any incorrect or improper payment made pursuant to this Article IX in the
absence of gross negligence or willful misconduct on the part of the Collateral Agent. Any sale
of, or the grant of options to purchase, or any other realization upon, any Pledged Collateral
shall operate to divest all right, title, interest, claim and demand, either at law or in equity,
of the applicable Pledgor therein and thereto, and shall be a perpetual bar both at law and in
equity against such Pledgor and against any and all persons claiming or attempting to claim the
Pledged Collateral so sold, optioned or realized upon, or any part thereof, from, through or under
such Pledgor.



          SECTION 9.4. Certain Sales of Pledged Collateral.


          (a) Each Pledgor recognizes that, by reason of certain prohibitions contained in law, rules,
regulations or orders of any Governmental Authority, the Collateral Agent may be compelled, with
respect to any sale of all or any part of the Pledged Collateral, to limit purchasers to those who
meet the requirements of such Governmental Authority. Each Pledgor acknowledges that any such
sales may be at prices and on terms less favorable to the Collateral Agent than those obtainable
through a public sale without such restrictions, and, notwithstanding such circumstances, agrees
that any such restricted sale shall be deemed to have been made in a commercially reasonable manner
and that, except as may be required by applicable law, the Collateral Agent shall have no
obligation to engage in public sales.


          (b) Each Pledgor recognizes that, by reason of certain prohibitions contained in the
Securities Act, and applicable state securities laws, the Collateral Agent may be compelled, with
respect to any sale of all or any part of the Securities Collateral and Investment Property, to
limit purchasers to persons who will agree, among other things, to acquire such Securities
Collateral or Investment Property for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor acknowledges that any such private sales may be at
prices and on terms less favorable to the Collateral Agent than those obtainable through a public
sale without such restrictions (including a public offering made pursuant to a registration
statement under the Securities Act), and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable manner and that the
Collateral Agent shall have no obligation to engage in public sales and no obligation to delay the
sale of any Securities Collateral or Investment Property for the period of time necessary to permit
the issuer thereof to register it for a form of public sale requiring registration under the
Securities Act or under applicable state securities laws, even if such issuer would agree to do so.


          (c) Notwithstanding the foregoing, each Pledgor shall, upon the occurrence and during the
continuance of any Event of Default, at the reasonable request of the Collateral Agent, for the
benefit of the Collateral Agent, cause any registration, qualification under or compliance with any
Federal or state securities law or laws to be effected with respect to all or any part of the
Securities Collateral as soon as practicable and at the sole cost and expense of the Pledgors.
Each Pledgor will use its commercially reasonable efforts to cause such registration to be effected
(and be kept effective) and will use its commercially reasonable efforts to cause such
qualification and compliance to be effected (and be kept effective) as may be so requested and as



-27-









 








would permit or facilitate the sale and distribution of such Securities Collateral including
registration under the Securities Act (or any similar statute then in effect), appropriate
qualifications under applicable blue sky or other state securities laws and appropriate compliance
with all other requirements of any Governmental Authority. Each Pledgor shall use its commercially
reasonable efforts to cause the Collateral Agent to be kept advised in writing as to the progress
of each such registration, qualification or compliance and as to the completion thereof, shall
furnish to the Collateral Agent such number of prospectuses, offering circulars or other documents
incident thereto as the Collateral Agent from time to time may request, and shall indemnify and
shall cause the issuer of the Securities Collateral to indemnify the Collateral Agent and all
others participating in the distribution of such Securities Collateral against all claims, losses,
damages and liabilities caused by any untrue statement (or alleged untrue statement) of a material
fact contained therein (or in any related registration statement, notification or the like) or by
any omission (or alleged omission) to state therein (or in any related registration statement,
notification or the like) a material fact required to be stated therein or necessary to make the
statements therein not misleading.



          (d) If the Collateral Agent determines to exercise its right to sell any or all of the
Securities Collateral or Investment Property, upon written request, the applicable Pledgor shall
from time to time furnish to the Collateral Agent all such information as the Collateral Agent may
request in order to determine the number of securities included in the Securities Collateral or
Investment Property which may be sold by the Collateral Agent as exempt transactions under the
Securities Act and the rules of the Securities and Exchange Commission thereunder, as the same are
from time to time in effect.


          (e) Each Pledgor further agrees that a breach of any of the covenants contained in this
Section 9.4 will cause irreparable injury to the Collateral Agent and the other Secured
Parties, that the Collateral Agent and the other Secured Parties have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant contained in this
Section 9.4 shall be specifically enforceable against such Pledgor, and such Pledgor hereby
waives and agrees not to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred and is continuing.


          SECTION 9.5. No Waiver; Cumulative Remedies.


          (a) No failure on the part of the Collateral Agent to exercise, no course of dealing with
respect to, and no delay on the part of the Collateral Agent in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power, privilege or remedy hereunder preclude any other or further exercise thereof or
the exercise of any other right, power, privilege or remedy; nor shall the Collateral Agent be
required to look first to, enforce or exhaust any other security, collateral or guaranties. All
rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies
provided by law or otherwise available.


          (b) In the event that the Collateral Agent shall have instituted any proceeding to enforce any
right, power, privilege or remedy under this Agreement or any other Loan Document



-28-









 








by foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely to the Collateral
Agent, then and in every such case, the Pledgors, the Collateral Agent and each other Secured Party
shall be restored to their respective former positions and rights hereunder with respect to the
Pledged Collateral, and all rights, remedies, privileges and powers of the Collateral Agent and the
other Secured Parties shall continue as if no such proceeding had been instituted.



          SECTION 9.6. Certain Additional Actions Regarding Intellectual Property. If any Event
of Default shall have occurred and be continuing, upon the written demand of the Collateral Agent,
each Pledgor shall execute and deliver to the Collateral Agent an assignment or assignments of the
registered Patents, Trademarks and/or Copyrights and Goodwill and such other documents as are
necessary or appropriate to carry out the intent and purposes hereof. Within five (5) Business
Days of written notice thereafter from the Collateral Agent, each Pledgor shall make available to
the Collateral Agent, to the extent within such Pledgor’s power and authority, such personnel in
such Pledgor’s employ on the date of the Event of Default as the Collateral Agent may reasonably
designate to permit such Pledgor to continue, directly or indirectly, to produce, advertise and
sell the products and services sold by such Pledgor under the registered Patents, Trademarks and/or
Copyrights, and such persons shall be available to perform their prior functions on the Collateral
Agent’s behalf.



ARTICLE X




APPLICATION OF PROCEEDS


          SECTION 10.1. Application of Proceeds. The proceeds received by the Collateral Agent
in respect of any sale of, collection from or other realization upon all or any part of the Pledged
Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied,
together with any other sums then held by the Collateral Agent pursuant to this Agreement, in
accordance with the Credit Agreement.



ARTICLE XI




MISCELLANEOUS


          SECTION 11.1. Concerning Collateral Agent.


          (a) The Collateral Agent has been appointed as collateral agent pursuant to the Credit
Agreement. The actions of the Collateral Agent hereunder are subject to the provisions of the
Credit Agreement. The Collateral Agent shall have the right hereunder to make demands, to give
notices, to exercise or refrain from exercising any rights, and to take or refrain from taking
action (including the release or substitution of the Pledged Collateral), in accordance with this
Agreement and the Credit Agreement. The Collateral Agent may employ agents and



-29-









 








attorneys-in-fact in connection herewith and shall not be liable for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Collateral
Agent may resign and a successor Collateral Agent may be appointed in the manner provided in the
Credit Agreement. Upon the acceptance of any appointment as the Collateral Agent by a successor
Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Collateral Agent under this
Agreement, and the retiring Collateral Agent shall thereupon be discharged from its duties and
obligations under this Agreement. After any retiring Collateral Agent’s resignation, the
provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it
under this Agreement while it was the Collateral Agent.



          (b) The Collateral Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded
treatment substantially equivalent to that which the Collateral Agent, in its individual capacity,
accords its own property consisting of similar instruments or interests, it being understood that
neither the Collateral Agent nor any of the Secured Parties shall have responsibility for (i)
ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to any Securities Collateral, whether or not the Collateral Agent or any
other Secured Party has or is deemed to have knowledge of such matters or (ii) taking any necessary
steps to preserve rights against any person with respect to any Pledged Collateral.


          (c) The Collateral Agent shall be entitled to rely upon any written notice, statement,
certificate, order or other document or any telephone message believed by it to be genuine and
correct and to have been signed, sent or made by the proper person, and, with respect to all
matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by
it.


          (d) If any item of Pledged Collateral also constitutes collateral granted to the Collateral
Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any
type, in the event of any conflict between the provisions hereof and the provisions of such other
deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such
collateral, the Collateral Agent, in its sole discretion, shall select which provision or
provisions shall control.


          (e) The Collateral Agent may rely on advice of counsel as to whether any or all UCC financing
statements of the Pledgors need to be amended as a result of any of the changes described in
Section 5.13(a) of the Credit Agreement. If any Pledgor fails to provide information to
the Collateral Agent about such changes on a timely basis, the Collateral Agent shall not be liable
or responsible to any party for any failure to maintain a perfected security interest in such
Pledgor’s property constituting Pledged Collateral, for which the Collateral Agent needed to have
information relating to such changes. The Collateral Agent shall have no duty to inquire about
such changes if any Pledgor does not inform the Collateral Agent of such changes, the parties
acknowledging and agreeing that it would not be feasible or practical for the Collateral



-30-









 








Agent to search for information on such changes if such information is not provided by
any Pledgor.



          SECTION 11.2. Collateral Agent May Perform; Collateral Agent Appointed
Attorney-in-Fact. If any Pledgor shall fail to perform any covenants contained in this
Agreement (including such Pledgor’s covenants to (i) pay the premiums in respect of all required
insurance policies hereunder, (ii) pay and discharge any taxes, assessments and special
assessments, levies, fees and governmental charges imposed upon or assessed against, and
landlords’, carriers’, mechanics’, workmen’s, repairmen’s, laborers’, materialmen’s, suppliers’ and
warehousemen’s Liens and other claims arising by operation of law against, all or any portion of
the Pledged Collateral, (iii) make repairs, (iv) discharge Liens or (v) pay or perform any
obligations of such Pledgor under any Pledged Collateral) or if any representation or warranty on
the part of any Pledgor contained herein shall be breached, the Collateral Agent may (but shall not
be obligated to) do the same or cause it to be done or remedy any such breach, and may expend funds
for such purpose; provided, however, that the Collateral Agent shall in no event be
bound to inquire into the validity of any tax, Lien, imposition or other obligation which such
Pledgor fails to pay or perform as and when required hereby and which such Pledgor does not contest
in accordance with the provisions of the Credit Agreement. Any and all amounts so expended by the
Collateral Agent shall be paid by the Pledgors in accordance with the provisions of
Section 10.03 of the Credit Agreement. Neither the provisions of this Section 11.2
nor any action taken by the Collateral Agent pursuant to the provisions of this Section
11.2 shall prevent any such failure to observe any covenant contained in this Agreement nor any
breach of representation or warranty from constituting an Event of Default. Each Pledgor hereby
appoints the Collateral Agent its attorney-in-fact, with full power and authority in the place and
stead of such Pledgor and in the name of such Pledgor, or otherwise, from time to time in the
Collateral Agent’s discretion to take any action and to execute any instrument consistent with the
terms of the Credit Agreement, this Agreement and the other Security Documents which the Collateral
Agent may deem necessary or advisable to accomplish the purposes hereof (but the Collateral Agent
shall not be obligated to and shall have no liability to such Pledgor or any third party for
failure to so do or take action). The foregoing grant of authority is a power of attorney coupled
with an interest and such appointment shall be irrevocable for the term hereof. Each Pledgor
hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof.


          SECTION 11.3. Continuing Security Interest; Assignment. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (i) be binding upon the Pledgors,
their respective successors and assigns and (ii) inure, together with the rights and remedies of
the Collateral Agent hereunder, to the benefit of the Collateral Agent and the other Secured
Parties and each of their respective successors, transferees and assigns. No other persons
(including any other creditor of any Pledgor) shall have any interest herein or any right or
benefit with respect hereto. Without limiting the generality of the foregoing clause (ii), any
Secured Party may assign or otherwise transfer any indebtedness held by it secured by this
Agreement to any other person, and such other person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Party, herein or otherwise, subject however, to
the provisions of the Credit Agreement and, in the case of a Secured Party that is a party to a
Hedging



-31-









 








Agreement or a Treasury Services Agreements, such Hedging Agreement or Treasury Services
Agreement, as applicable. Each of the Pledgors agrees that its obligations hereunder and the
security interest created hereunder shall continue to be effective or be reinstated, as applicable,
if at any time payment, or any part thereof, of all or any part of the Secured Obligations is
rescinded or must otherwise be restored by the Secured Party upon the bankruptcy or reorganization
of any Pledgor or otherwise.



          SECTION 11.4. Termination; Release. (a) When all the Secured Obligations have been
paid in full and the Commitments of the Lenders to make any Loan or to issue any Letter of Credit
under the Credit Agreement shall have expired or been sooner terminated and all Letters of Credit
have been terminated or cash collateralized in accordance with the provisions of the Credit
Agreement, this Agreement shall terminate. Upon termination of this Agreement the Pledged
Collateral shall be released from the Lien of this Agreement. Upon such release or any release of
Pledged Collateral or any part thereof in accordance with the provisions of the Credit Agreement,
the Collateral Agent shall, upon the request and at the sole cost and expense of the Pledgors,
assign, transfer and deliver to Pledgor, against receipt and without recourse to or warranty by the
Collateral Agent except as to the fact that the Collateral Agent has not encumbered the released
assets, such of the Pledged Collateral or any part thereof to be released (in the case of a
release) as may be in possession of the Collateral Agent and as shall not have been sold or
otherwise applied pursuant to the terms hereof, and, with respect to any other Pledged Collateral,
proper documents and instruments (including UCC-3 termination financing statements or releases)
acknowledging the termination hereof or the release of such Pledged Collateral, as the case may be.


          (b) Notwithstanding the foregoing, if (i) the Obligations have been paid in full and the
Commitments of the Lenders to make any Loan or to issue any Letter of Credit under the Credit
Agreement shall have expired or been sooner terminated and all Letters of Credit have been
terminated or cash collateralized in accordance with the provisions of the Credit Agreement, (ii)
Secured Obligations of the type described in clause (b) of the definition of Secured Obligations
(“Remaining Secured Obligations”) remain outstanding and (iii) all or a portion of the repayment of
the Obligations is financed by the proceeds of Indebtedness of one or more Loan Parties or any
affiliate of a Loan Party (“Refinancing Indebtedness”) which Refinancing Indebtedness is secured by
property of such persons, this Agreement shall terminate as if the Remaining Secured Obligations
have been paid in full and the provisions of paragraph (a) of this Section 11.4 shall apply
concurrently with the incurrence of the Refinancing Indebtedness and the securing of the
Refinancing Indebtedness and the Remaining Secured Obligations on an equal and ratable basis. For
the avoidance of doubt, if the Refinancing Indebtedness is not secured, this Agreement shall not
terminate but shall remain in full force and effect.


          SECTION 11.5. Modification in Writing. No amendment, modification, supplement,
termination or waiver of or to any provision hereof, nor consent to any departure by any Pledgor
therefrom, shall be effective unless the same shall be made in accordance with the terms of the
Credit Agreement and unless in writing and signed by the Collateral Agent. Any amendment,
modification or supplement of or to any provision hereof, any waiver of any provision hereof and
any consent to any departure by any Pledgor from the terms of any provision hereof




-32-











 




in each case shall be effective only in the specific instance and for the specific purpose for
which made or given. Except where notice is specifically required by this Agreement or any other
document evidencing the Secured Obligations, no notice to or demand on any Pledgor in any case
shall entitle any Pledgor to any other or further notice or demand in similar or other
circumstances.




          SECTION 11.6. Notices. Unless otherwise provided herein or in the Credit Agreement,
any notice or other communication herein required or permitted to be given shall be given in the
manner and become effective as set forth in the Credit Agreement, as to any Pledgor, addressed to
it at the address of the Borrower set forth in the Credit Agreement and as to the Collateral Agent,
addressed to it at the address set forth in the Credit Agreement, or in each case at such other
address as shall be designated by such party in a written notice to the other party complying as to
delivery with the terms of this Section 11.6.




          SECTION 11.7. Governing Law, Consent to Jurisdiction and Service of Process; Waiver of
Jury Trial. Sections 10.09 and 10.10 of the Credit Agreement are incorporated
herein, mutatis mutandis, as if a part hereof.




          SECTION 11.8. Severability of Provisions. Any provision hereof which is invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without invalidating the remaining
provisions hereof or affecting the validity, legality or enforceability of such provision in any
other jurisdiction.




          SECTION 11.9. Execution in Counterparts. This Agreement and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and delivered shall be
deemed to be an original, but all such counterparts together shall constitute one and the same
agreement.




          SECTION 11.10. Business Days. In the event any time period or any date provided in
this Agreement ends or falls on a day other than a Business Day, then such time period shall be
deemed to end and such date shall be deemed to fall on the next succeeding Business Day, and
performance herein may be made on such Business Day, with the same force and effect as if made on
such other day.




          SECTION 11.11. No Credit for Payment of Taxes or Imposition. Such Pledgor shall not
be entitled to any credit against the principal, premium, if any, or interest payable under the
Credit Agreement, and such Pledgor shall not be entitled to any credit against any other sums which
may become payable under the terms thereof or hereof, by reason of the payment of any Tax on the
Pledged Collateral or any part thereof.




          SECTION 11.12. No Claims Against Collateral Agent. Nothing contained in this
Agreement shall constitute any consent or request by the Collateral Agent, express or implied, for
the performance of any labor or services or the furnishing of any materials or other property






-33-









 







in respect of the Pledged Collateral or any part thereof, nor as giving any Pledgor any right,
power or authority to contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in such fashion as would permit the making of any
claim against the Collateral Agent in respect thereof or any claim that any Lien based on the
performance of such labor or services or the furnishing of any such materials or other property is
prior to the Lien hereof.




          SECTION 11.13. No Release. Nothing set forth in this Agreement or any other Loan
Document, nor the exercise by the Collateral Agent of any of the rights or remedies hereunder,
shall relieve any Pledgor from the performance of any term, covenant, condition or agreement on
such Pledgor’s part to be performed or observed under or in respect of any of the Pledged
Collateral or from any liability to any person under or in respect of any of the Pledged Collateral
or shall impose any obligation on the Collateral Agent or any other Secured Party to perform or
observe any such term, covenant, condition or agreement on such Pledgor’s part to be so performed
or observed or shall impose any liability on the Collateral Agent or any other Secured Party for
any act or omission on the part of such Pledgor relating thereto or for any breach of any
representation or warranty on the part of such Pledgor contained in this Agreement, the Credit
Agreement or the other Loan Documents, or under or in respect of the Pledged Collateral or made in
connection herewith or therewith. Anything herein to the contrary notwithstanding, neither the
Collateral Agent nor any other Secured Party shall have any obligation or liability under any
contracts, agreements and other documents included in the Pledged Collateral by reason of this
Agreement, nor shall the Collateral Agent or any other Secured Party be obligated to perform any of
the obligations or duties of any Pledgor thereunder or to take any action to collect or enforce any
such contract, agreement or other document included in the Pledged Collateral hereunder. The
obligations of each Pledgor contained in this Section 11.13 shall survive the termination
hereof and the discharge of such Pledgor’s other obligations under this Agreement, the Credit
Agreement and the other Loan Documents.




          SECTION 11.14. Obligations Absolute. All obligations of each Pledgor hereunder shall
be absolute and unconditional irrespective of:





     (i) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of any other Pledgor;




     (ii) any lack of validity or enforceability of the Credit Agreement, any Hedging
Agreement, any Treasury Services Agreement or any other Loan Document, or any other
agreement or instrument relating thereto;




     (iii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the Secured Obligations, or any other amendment or waiver of or any consent to
any departure from the Credit Agreement, any Hedging Agreement, Treasury Services Agreement
or any other Loan Document or any other agreement or instrument relating thereto;



-34-









 






     (iv) any pledge, exchange, release or non-perfection of any other collateral, or any
release or amendment or waiver of or consent to any departure from any guarantee, for all or
any of the Secured Obligations;




     (v) any exercise, non-exercise or waiver of any right, remedy, power or privilege under
or in respect hereof, the Credit Agreement, any Hedging Agreement, any Treasury Services
Agreement or any other Loan Document except as specifically set forth in a waiver granted
pursuant to the provisions of Section 11.5 hereof; or




     (vi) any other circumstances which might otherwise constitute a defense available to,
or a discharge of, any Pledgor.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]




-35-









 





          IN WITNESS WHEREOF, each Pledgor and the Collateral Agent have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the date first above written.




	 	 	 	 	 
	 	NAVISITE, INC., 
as Pledgor


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AVASTA, INC., 
as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES MANAGEMENT, INC., 
as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES/CHICAGO-WELLS, INC.,
 as
Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-1









 






	 	 	 	 	 



	 	 	 	 	 
	 	CLEAR BLUE TECHNOLOGIES/LAS VEGAS, INC., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES/LOS ANGELES, INC., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES/ MILWAUKEE, INC., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES/OAK BROOK, INC., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-2









 






	 	 	 	 	 
	 	CLEARBLUE TECHNOLOGIES/VIENNA, INC., 
as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES/DALLAS, INC., 
as Pledgor


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES/NEW YORK, INC., 
as Pledgor


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES/SAN FRANCISCO, INC., 

as
Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CLEARBLUE TECHNOLOGIES/SANTA CLARA, INC., 
as Pledgor


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-3









 






	 	 	 	 	 



	 	 	 	 	 
	 	CONXION CORPORATION, as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	INTREPID ACQUISITION CORP., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LEXINGTON ACQUISITION CORP., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	MANAGEDOPS.COM, INC., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-4









 






	 	 	 	 	 



	 	 	 	 	 
	 	SUREBRIDGE ACQUISITION CORP., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	SUREBRIDGE SERVICES, INC., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NAVISITE ACQUISITION SUBSIDIARY, INC., as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-5









 






	 	 	 	 	 



	 	 	 	 	 
	 	CANADIAN IMPERIAL BANK OF COMMERCE, 

acting through
New York Agency, as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




S-6












 





EXHIBIT 1




[Form of]




ISSUER’S ACKNOWLEDGMENT



          The undersigned hereby (i) acknowledges receipt of the Security Agreement (as amended, amended
and restated, supplemented or otherwise modified from time to time, the “Security
Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Security Agreement), dated as of June 8, 2007 made by NaviSite, Inc.
a Delaware Corporation (the “Borrower”), the Guarantors party thereto and Canadian Imperial
Bank of Commerce, acting through its New York Agency, as collateral agent (in such capacity and
together with any successors in such capacity, the “Collateral Agent”), (ii) agrees
promptly to note on its books the security interests granted to the Collateral Agent and confirmed
under the Security Agreement, (iii) agrees that it will comply with instructions of the Collateral
Agent with respect to the applicable Securities Collateral (including all Equity Interests of the
undersigned) without further consent by the applicable Pledgor, (iv) agrees to notify the
Collateral Agent upon obtaining knowledge of any interest in favor of any person in the applicable
Securities Collateral that is adverse to the interest of the Collateral Agent therein and (v)
waives any right or requirement at any time hereafter to receive a copy of the Security Agreement
in connection with the registration of any Securities Collateral thereunder in the name of the
Collateral Agent or its nominee or the exercise of voting rights by the Collateral Agent or its
nominee.




	 	 	 	 	 
	 	[             
                   
                   
                   
 ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT 2




[Form of]




SECURITIES PLEDGE AMENDMENT



          This Securities Pledge Amendment, dated as of [          ], is delivered pursuant to
Section 5.1 of the Security Agreement (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “Security Agreement;” capitalized terms used but
not otherwise defined herein shall have the meanings assigned to such terms in the Security
Agreement), dated as of June 8, 2007 made by NAVISITE, INC., a Delaware Corporation (the
“Borrower”), the Guarantors party thereto and CANADIAN IMPERIAL BANK OF COMMERCE, acting
through its New York Agency, as collateral agent (in such capacity and together with any successors
in such capacity, the “Collateral Agent”). The undersigned hereby agrees that this
Securities Pledge Amendment may be attached to the Security Agreement and that the Pledged
Securities and/or Intercompany Notes listed on this Securities Pledge Amendment shall be deemed to
be and shall become part of the Pledged Collateral and shall secure all Secured Obligations.




PLEDGED SECURITIES



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	PERCENTAGE OF
	 	 	CLASS	 	 	 	 	 	NUMBER OF	 	ALL ISSUED CAPITAL
	 	 	OF STOCK	 	PAR	 	CERTIFICATE	 	SHARES OR	 	OR OTHER EQUITY
	ISSUER	 	OR INTERESTS	 	VALUE	 	NO(S)	 	INTERESTS	 	INTERESTS OF ISSUER
	 	 	 	 	 	 	 	 	 	 	 





 









 






INTERCOMPANY NOTES




	 	 	 	 	 	 	 	 	 
	 	 	PRINCIPAL	 	DATE OF	 	INTEREST	 	MATURITY
	ISSUER	 	AMOUNT	 	ISSUANCE	 	RATE	 	DATE
	 	 	 	 	 	 	 	 	 





	 	 	 	 	 
	 	[             
                   
                   
                   
 ],

as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



AGREED TO AND ACCEPTED:




CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York Agency, as Collateral Agent




	 	 	 	 	 	 	 

	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






-2-









 






EXHIBIT 3




[Form of]




JOINDER AGREEMENT



[Name of New Pledgor]




[Address of New Pledgor]




[Date]




	 	 	 

	 


	 	 
	 


	 	 
	 


	 	 
	 


	 	 





Ladies and Gentlemen:




          Reference is made to the Security Agreement (as amended, amended and restated, supplemented or
otherwise modified from time to time, the “Security Agreement;” capitalized terms used but
not otherwise defined herein shall have the meanings assigned to such terms in the Security
Agreement), dated as of June 8, 2007 made by NaviSite, Inc., a Delaware Corporation (the
“Borrower”), the Guarantors party thereto and Canadian Imperial Bank of Commerce, acting
through its New York agency, as collateral agent (in such capacity and together with any successors
in such capacity, the “Collateral Agent”).




          This Joinder Agreement supplements the Security Agreement and is delivered by the undersigned,
[       ] (the “New Pledgor”), pursuant to Section 3.5 of the
Security Agreement. The New Pledgor hereby agrees to be bound as a Guarantor and as a Pledgor
party to the Security Agreement by all of the terms, covenants and conditions set forth in the
Security Agreement to the same extent that it would have been bound if it had been a signatory to
the Security Agreement on the date of the Security Agreement. The New Pledgor also hereby agrees
to be bound as a party by all of the terms, covenants and conditions applicable to it set forth in
Articles V, VI and VII of the Credit Agreement to the same extent that it
would have been bound if it had been a signatory to the Credit Agreement on the execution date of
the Credit Agreement. Without limiting the generality of the foregoing, the New Pledgor hereby
grants and pledges to the Collateral Agent, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, a Lien on and security interest in, all of its right, title
and interest in, to and under the






 









 







Pledged Collateral and expressly assumes all obligations and liabilities of a Guarantor and
Pledgor thereunder. The New Pledgor hereby makes each of the representations and warranties and
agrees to each of the covenants applicable to the Pledgors contained in the Security Agreement and
Article III of the Credit Agreement.




          Annexed hereto are supplements to each of the schedules to the Security Agreement and the
Credit Agreement, as applicable, with respect to the New Pledgor. Such supplements shall be deemed
to be part of the Security Agreement or the Credit Agreement, as applicable.




          This Joinder Agreement and any amendments, waivers, consents or supplements hereto may be
executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original, but all such
counterparts together shall constitute one and the same agreement.




          THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.






-2-









 








          IN WITNESS WHEREOF, the New Pledgor has caused this Joinder Agreement to be executed and
delivered by its duly authorized officer as of the date first above written.




	 	 	 	 	 
	 	[NEW PLEDGOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



AGREED TO AND ACCEPTED:




CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York Agency, as Collateral Agent




	 	 	 	 	 	 	 

	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






[Schedules to be attached]



-3-









 





EXHIBIT 4




[Form of]




CONTROL AGREEMENT CONCERNING SECURITIES ACCOUNTS



          This Control Agreement Concerning Securities Accounts (this “Control Agreement”),
dated as of [               ], by and among NaviSite, Inc., (the “Pledgor”), Canadian
Imperial Bank of Commerce, acting through its New York agency, as Collateral Agent (the
“Collateral Agent”) and [               ] (the “Securities Intermediary”), is
delivered pursuant to Section 3.4(c) of that certain security agreement (as amended,
amended and restated, supplemented or otherwise modified from time to time, the “Security
Agreement”), dated as of June 8, 2007 made by the Pledgor and each of the Guarantors listed
on the signature pages thereto in favor of Canadian Imperial Bank of Commerce, acting through its
New York agency, as collateral agent, as pledgee, assignee and secured party. This Control
Agreement is for the purpose of perfecting the security interests of the Secured Parties granted by
the Pledgor in the Designated Accounts described below. All references herein to the “UCC” shall
mean the Uniform Commercial Code as in effect from time to time in the State of New York.
Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the
Security Agreement.




          Section 1. Confirmation of Establishment and Maintenance of Designated
Accounts. The Securities Intermediary hereby confirms and agrees that (i) the Securities
Intermediary has established for the Pledgor and maintains the account(s) listed in Schedule
I annexed hereto (such account(s), together with each such other securities account maintained
by the Pledgor with the Securities Intermediary collectively, the “Designated Accounts” and
each a “Designated Account”), (ii) each Designated Account will be maintained in the manner
set forth herein until termination of this Control Agreement, (iii) this Control Agreement is the
valid and legally binding obligation of the Securities Intermediary, (iv) the Securities
Intermediary is a “securities intermediary” as defined in Article 8-102(a)(14) of the UCC, (v) each
of the Designated Accounts is a “securities account” as such term is defined in Section 8-501(a) of
the UCC and (vi) all securities or other property underlying any financial assets which are
credited to any Designated Account shall be registered in the name of the Securities Intermediary,
endorsed to the Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will any financial asset
credited to any Designated Account be registered in the name of the Pledgor, payable to the order
of the Pledgor or specially endorsed to the Pledgor, except to the extent the foregoing have been
specially endorsed to the Securities Intermediary or in blank.




          Section 2. “Financial Assets” Election. All parties hereto agree that each item of
Investment Property and all other property held in or credited to any Designated Account (the
“Account Property”) shall be treated as a “financial asset” within the meaning of Section
8-102(a)(9) of the UCC.







 









 








          Section 3. Entitlement Order. If at any time the Securities Intermediary shall
receive an “entitlement order” (within the meaning of Section 8-102(a)(8) of the UCC) issued by the
Collateral Agent and relating to any financial asset maintained in one or more of the Designated
Accounts, the Securities Intermediary shall comply with such entitlement order without further
consent by the Pledgor or any other person. The Securities Intermediary shall also comply with
instructions directing the Securities Intermediary with respect to the sale, exchange or transfer
of any Account Property held in each Designated Account originated by a Pledgor, or any
representative of, or investment manager appointed by, a Pledgor until such time as the Collateral
Agent delivers a Notice of Sole Control pursuant to Section 9(i) to the Securities
Intermediary. The Securities Intermediary shall comply with, and is fully entitled to rely upon,
any entitlement order from the Collateral Agent, even if such entitlement order is contrary to any
entitlement order that the Pledgor may give or may have given to the Securities Intermediary.




          Section 4. Subordination of Lien; Waiver of Set-Off. The Securities Intermediary
hereby agrees that any security interest in, lien on, encumbrance, claim or (except as provided in
the next sentence) right of setoff against, any Designated Account or any Account Property it now
has or subsequently obtains shall be subordinate to the security interest of the Collateral Agent
in the Designated Accounts and the Account Property therein or credited thereto. The Securities
Intermediary agrees not to exercise any present or future right of recoupment or set-off against
any of the Designated Accounts or to assert against any of the Designated Accounts any present or
future security interest, banker’s lien or any other lien or claim (including claim for penalties)
that the Securities Intermediary may at any time have against or in any of the Designated Accounts
or any Account Property therein or credited thereto; provided, however, that the
Securities Intermediary may set off all amounts due to the Securities Intermediary in respect of
its customary fees and expenses for the routine maintenance and operation of the Designated
Accounts, including overdraft fees and amounts advanced to settle authorized transactions.




          Section 5. Choice of Law. Both this Control Agreement and the Designated Accounts
shall be governed by the laws of the State of New York. Regardless of any provision in any other
agreement, for purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s
jurisdiction and the Designated Accounts (as well as the security entitlements related thereto)
shall be governed by the laws of the State of New York.




          Section 6. Conflict with Other Agreements; Amendments. As of the date hereof, there
are no other agreements entered into between the Securities Intermediary and the Pledgor with
respect to any Designated Account or any security entitlements or other financial assets credited
thereto (other than standard and customary documentation with respect to the establishment and
maintenance of such Designated Accounts). The Securities Intermediary and the Pledgor will not
enter into any other agreement with respect to any Designated Account unless the Collateral Agent
shall have received prior written notice thereof. The Securities Intermediary and the Pledgor have
not and will not enter into any other agreement with respect to (i) creation or perfection of any
security interest in or (ii) control of security entitlements maintained






-2-









 







in any of the Designated Accounts or purporting to limit or condition the obligation of
the Securities Intermediary to comply with entitlement orders with respect to any Account Property
held in or credited to any Designated Account as set forth in Section 3 hereof without the
prior written consent of the Collateral Agent acting in its sole discretion. In the event of any
conflict with respect to control over any Designated Account between this Control Agreement (or any
portion hereof) and any other agreement now existing or hereafter entered into, the terms of this
Control Agreement shall prevail. No amendment or modification of this Control Agreement or waiver
of any rights hereunder shall be binding on any party hereto unless it is in writing and is signed
by all the parties hereto.




          Section 7. Certain Agreements.




          (i) As of the date hereof, the Securities Intermediary has furnished to the Collateral Agent
the most recent account statement issued by the Securities Intermediary with respect to each of the
Designated Accounts and the financial assets and cash balances held therein, identifying the
financial assets held therein in a manner acceptable to the Collateral Agent. Each such statement
accurately reflects the assets held in such Designated Account as of the date thereof.




          (ii) The Securities Intermediary will, upon its receipt of each supplement to the Security
Agreement signed by the Pledgor and identifying one or more financial assets as “Pledged
Collateral,” enter into its records, including computer records, with respect to each Designated
Account a notation with respect to any such financial asset so that such records and reports
generated with respect thereto identify such financial asset as “Pledged.”




          Section 8. Notice of Adverse Claims. Except for the claims and interest of the
Collateral Agent and of the Pledgor in the Account Property held in or credited to the Designated
Accounts, the Securities Intermediary on the date hereof does not know of any claim to, security
interest in, lien on, or encumbrance against, any Designated Account or Account Property held in or
credited thereto and does not know of any claim that any person or entity other than the Collateral
Agent has been given “control” (within the meaning of Section 8-106 of the UCC) of any Designated
Account or any such Account Property. If the Securities Intermediary becomes aware that any person
or entity is asserting any lien, encumbrance, security interest or adverse claim (including any
writ, garnishment, judgment, warrant of attachment, execution or similar process or any claim of
control) against any of the Account Property held in or credited to any Designated Account, the
Securities Intermediary shall promptly notify the Collateral Agent and the Pledgor thereof.




          Section 9. Maintenance of Designated Accounts. In addition to the obligations of the
Securities Intermediary in Section 3 hereof, the Securities Intermediary agrees to maintain
the Designated Accounts as follows:







-3-









 









     (i) Notice of Sole Control. If at any time the Collateral Agent delivers to
the Securities Intermediary a notice instructing the Securities Intermediary to terminate
Pledgor’s access to any Designated Account (the “Notice of Sole Control”), the
Securities Intermediary agrees that, after receipt of such notice, it will take all
instructions with respect to such Designated Account solely from the Collateral Agent,
terminate all instructions and orders originated by the Pledgor with respect to the
Designated Accounts or any Account Property therein, and cease taking instructions from
Pledgor, including, without limitation, instructions for investment, distribution or
transfer of any financial asset maintained in any Designated Account. Permitting settlement
of trades pending at the time of receipt of such notice shall not constitute a violation of
the immediately preceding sentence.




     (ii) Voting Rights. Until such time as the Securities Intermediary receives a
Notice of Sole Control, the Pledgor, or an investment manager on behalf of the Pledgor,
shall direct the Securities Intermediary with respect to the voting of any financial assets
credited to any Designated Account.




     (iii) Statements and Confirmations. The Securities Intermediary will send
copies of all statements and other correspondence (excluding routine confirmations)
concerning any Designated Account or any financial assets credited thereto simultaneously to
each of the Pledgor and the Collateral Agent at the address set forth in Section 11
hereof. The Securities Intermediary will provide to the Collateral Agent, upon the
Collateral Agent’s request therefor from time to time and, in any event, as of the last
business day of each calendar month, a statement of the market value of each financial asset
maintained in each Designated Account. The Securities Intermediary shall not change the
name or account number of any Designated Account without the prior written consent of the
Collateral Agent.




     (iv) Perfection in Certificated Securities. The Securities Intermediary
acknowledges that, in the event that it should come into possession of any certificate
representing any security or other Account Property held in or credited to any of the
Designated Accounts, the Securities Intermediary shall retain possession of the same on
behalf and for the benefit of the Collateral Agent and such act shall cause the Securities
Intermediary to be deemed holding such certificate for the Collateral Agent, if necessary to
perfect the Collateral Agent’s security interest in such securities or assets. The
Securities Intermediary hereby acknowledges its receipt of a copy of the Security Agreement,
which shall also serve as notice to the Securities Intermediary of a security interest in
collateral held on behalf and for the benefit of the Collateral Agent.



          Section 10. Successors; Assignment. The terms of this Control Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their respective corporate
successors and permitted assignees.







-4-









 








          Section 11. Notices. Any notice, request or other communication required or permitted
to be given under this Control Agreement shall be in writing and deemed to have been properly given
when delivered in person, or when sent by telecopy or other electronic means and electronic
confirmation of error free receipt is received or two (2) days after being sent by certified or
registered United States mail, return receipt requested, postage prepaid, addressed to the party at
the address set forth below.




	 	 	 	 	 

	 

	 	Pledgor:
	 	NaviSite, Inc.
	 

	 	 	 	400 Minuteman Road
	 

	 	 	 	Andover, Massachusetts 01810
	 

	 	 
	 	Attention: James W. Pluntze
	 

	 	 
	 	Telecopy: (978) 946-7803
	 
	 

	 	 	 	with a copy to:
	 
	 

	 	 	 	NaviSite, Inc.
	 

	 	 	 	20 East 66th Street
	 

	 	 	 	New York, NY 10021
	 

	 	 	 	Attention: Arthur Becker, Chief Executive Officer
	 

	 	 	 	Telecopy: (212) 396-2388
	 

	 	Securities	 	 
	 

	 	Intermediary:
	 	[           ]
	 

	 	 	 	[Address]
	 

	 	 	 	Attention:
	 

	 	 	 	Telecopy:
	 

	 	 	 	Telephone:
	 

	 	Collateral	 	 
	 

	 	Agent:
	 	Agency Services
	 

	 	 	 	300 Madison Avenue
	 

	 	 	 	New York, NY 10017
	 

	 	 	 	Attention: Christine Aharonian
	 

	 	 	 	Telecopy: (212) 856-6763






          Any party may change its address for notices in the manner set forth above.




          Section 12. Termination.




          (i) Except as otherwise provided in this Section 12, the obligations of the Securities
Intermediary hereunder and this Control Agreement shall continue in effect until the security
interests of the Collateral Agent in the Designated Accounts and any and all Account Property held
therein or credited thereto have been terminated pursuant to the terms of the Security






-5-









 







 Agreement and the Collateral Agent has notified the Securities Intermediary of such
termination in writing.




          (ii) The Securities Intermediary, acting alone, may terminate this Control Agreement at any
time and for any reason by written notice delivered to the Collateral Agent and the Pledgor not
less than thirty (30) days prior to the effective termination date.




          (iii) Prior to any termination of this Control Agreement pursuant to this Section 12, the
Securities Intermediary hereby agrees that it shall promptly take, at Pledgor’s sole cost and
expense, all reasonable actions necessary to facilitate the transfer of any Account Property in or
credited to the Designated Accounts as follows: (i) in the case of a termination of this Control
Agreement under Section 12(i), to the institution designated in writing by Pledgor; and
(ii) in all other cases, to the institution designated in writing by the Collateral Agent.




          Section 13. Fees and Expenses. The Securities Intermediary agrees to look solely to
the Pledgor for payment of any and all fees, costs, charges and expenses incurred or otherwise
relating to the Designated Accounts and services provided by the Securities Intermediary hereunder
(collectively, the “Account Expenses”), and the Pledgor agrees to pay such Account Expenses
to the Securities Intermediary on demand therefor. The Pledgor acknowledges and agrees that it
shall be, and at all times remains, solely liable to the Securities Intermediary for all Account
Expenses.




          Section 14. Severability. If any term or provision set forth in this Control
Agreement shall be invalid or unenforceable, the remainder of this Control Agreement, other than
those provisions held invalid or unenforceable, shall be construed in all respects as if such
invalid or unenforceable term or provision were omitted.




          Section 15. Counterparts. This Control Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any party hereto may
execute this Control Agreement by signing and delivering one or more counterparts.




[signature page follows]



-6-









 





	 	 	 	 	 
	 	[             
                   
                   
                   
 ],

as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New York Agency, as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[             
                   
                   
                   
 ],

as Securities Intermediary

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




S-1











 





SCHEDULE I




Designated Account(s)




 









 





EXHIBIT 5




[Form of]




CONTROL AGREEMENT CONCERNING DEPOSIT ACCOUNTS



          This CONTROL AGREEMENT CONCERNING DEPOSIT ACCOUNTS (this “Control Agreement”), dated
as of [          ], by and among NAVISITE, INC. (the “Pledgor”), CANADIAN IMPERIAL
BANK OF COMMERCE, acting through its New York Agency, as Collateral Agent (the “Collateral
Agent”) and [               ] (the “Bank”), is delivered pursuant to
Section 3.4(b) of that certain security agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Security Agreement”), dated as
of June 8, 2007 made by the Pledgor and each of the Guarantors listed on the signature pages
thereto in favor of CANADIAN IMPERIAL BANK OF COMMERCE, as collateral agent, as pledgee, assignee
and secured party. This Control Agreement is for the purpose of perfecting the security interests
of the Secured Parties granted by the Pledgor in the Designated Accounts described below. All
references herein to the “UCC” shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York. Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Security Agreement.




          Section 1. Confirmation of Establishment and Maintenance of Designated
Accounts. The Bank hereby confirms and agrees that (i) the Bank has established for the
Pledgor and maintains the deposit account(s) listed in Schedule 1 annexed hereto (such
account(s), together with each such other deposit account maintained by the Pledgor with the Bank
collectively, the “Designated Accounts” and each a “Designated Account”), (ii) each
Designated Account will be maintained in the manner set forth herein until termination of this
Control Agreement, (iii) the Bank is a “bank,” as such term is defined in the UCC, (iv) this
Control Agreement is the valid and legally binding obligation of the Bank and (v) each Designated
Account is a “deposit account” as such term is defined in Article 9 of the UCC.




          Section 2. Control. The Bank shall comply with instructions originated by the
Collateral Agent without further consent of the Pledgor or any person acting or purporting to act
for the Pledgor being required, including, without limitation, directing disposition of the funds
in each Designated Account. The Bank shall also comply with instructions directing the disposition
of funds in each Designated Account originated by the Pledgor or its authorized representatives
until such time as the Collateral Agent delivers a Notice of Sole Control pursuant to Section
8(i) hereof to the Bank. The Bank shall comply with, and is fully entitled to rely upon, any
instruction from the Collateral Agent, even if such instruction is contrary to any instruction that
the Pledgor may give or may have given to the Bank.







 









 








          Section 3. Subordination of Lien; Waiver of Set-Off. The Bank hereby agrees that any
security interest in, lien on, encumbrance, claim or (except as provided in the next sentence)
right of setoff against, any Designated Account or any funds therein it now has or subsequently
obtains shall be subordinate to the security interest of the Collateral Agent in the Designated
Accounts and the funds therein or credited thereto. The Bank agrees not to exercise any present or
future right of recoupment or set-off against any of the Designated Accounts or to assert against
any of the Designated Accounts any present or future security interest, banker’s lien or any other
lien or claim (including claim for penalties) that the Bank may at any time have against or in any
of the Designated Accounts or any funds therein; provided, however, that the Bank
may set off (i) all amounts due to the Bank in respect of its customary fees and expenses for the
routine maintenance and operation of the Designated Accounts, including overdraft fees, and (ii)
the face amount of any checks or other items which have been credited to any Designated Account but
are subsequently returned unpaid because of uncollected or insufficient funds).




          Section 4. Choice of Law. Both this Control Agreement and the Designated Accounts
shall be governed by the laws of the State of New York. Regardless of any provision in any other
agreement, for purposes of the UCC, New York shall be deemed to be the Bank’s jurisdiction and the
Designated Account(s) shall be governed by the law of the State of New York.




          Section 5. Conflict with Other Agreements; Amendments. As of the date hereof, there
are no other agreements entered into between the Bank and the Pledgor with respect to any
Designated Account or any funds credited thereto (other than standard and customary documentation
with respect to the establishment and maintenance of such Designated Accounts). The Bank and the
Pledgor will not enter into any other agreement with respect to any Designated Account unless the
Collateral Agent shall have received prior written notice thereof. The Bank and the Pledgor have
not and will not enter into any other agreement with respect to control of the Designated Accounts
or purporting to limit or condition the obligation of the Bank to comply with any orders or
instructions with respect to any Designated Account as set forth in Section 2 hereof
without the prior written consent of the Collateral Agent acting in its sole discretion. In the
event of any conflict with respect to control over any Designated Account between this Control
Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into,
the terms of this Control Agreement shall prevail. No amendment or modification of this Control
Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in
writing and is signed by all the parties hereto.







-2-









 








          Section 6. Certain Agreements. As of the date hereof, the Bank has furnished to the
Collateral Agent the most recent account statement issued by the Bank with respect to each of the
Designated Accounts and the cash balances held therein. Each such statement accurately reflects
the assets held in such Designated Account as of the date thereof.




          Section 7. Notice of Adverse Claims. Except for the claims and interest of the
Secured Parties and of the Pledgor in the Designated Accounts, the Bank on the date hereof does not
know of any claim to, security interest in, lien on, or encumbrance against, any Designated Account
or in any funds credited thereto and does not know of any claim that any person or entity other
than the Collateral Agent has been given control (within the meaning of Section 9-104 of the UCC)
of any Designated Account or any such funds. If the Bank becomes aware that any person or entity
is asserting any lien, encumbrance, security interest or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process or any claim of control)
against any funds in any Designated Account, the Bank shall promptly notify the Collateral Agent
and the Pledgor thereof.




          Section 8. Maintenance of Designated Accounts. In addition to the obligations of the
Bank in Section 2 hereof, the Bank agrees to maintain the Designated Accounts as follows:





     (i) Notice of Sole Control. If at any time the Collateral Agent delivers to
the Bank a notice instructing the Bank to terminate Pledgor’s access to any Designated
Account (the “Notice of Sole Control”), the Bank agrees that, after receipt of such
notice, it will take all instruction with respect to such Designated Account solely from the
Collateral Agent, terminate all instructions and orders originated by the Pledgor with
respect to the Designated Accounts or any funds therein, and cease taking instructions from
the Pledgor, including, without limitation, instructions for distribution or transfer of any
funds in any Designated Account.




     (ii) Statements and Confirmations. The Bank will send copies of all statements
and other correspondence (excluding routine confirmations) concerning any Designated Account
simultaneously to the Pledgor and the Collateral Agent at the address set forth in
Section 10 hereof. The Bank will promptly provide to the Collateral Agent, upon
request therefor from time to time and, in any event, as of the last business day of each
calendar month, a statement of the cash balance in each Designated Account. The Bank shall
not change the name or account number of any Designated Account without the prior written
consent of the Collateral Agent.



          Section 9. Successors; Assignment. The terms of this Control Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their respective corporate
successors and permitted assignees.







-3-









 








          Section 10. Notices. Any notice, request or other communication required or permitted
to be given under this Control Agreement shall be in writing and deemed to have been properly given
when delivered in person, or when sent by telecopy or other electronic means and electronic
confirmation of error free receipt is received or two (2) days after being sent by certified or
registered United States mail, return receipt requested, postage prepaid, addressed to the party at
the address set forth below.




	 	 	 	 	 

	 

	 	Pledgor:
	 	NaviSite, Inc.
	 

	 	 	 	400 Minuteman Road
	 

	 	 	 	Andover, Massachusetts 01810
	 

	 	 	 	Attention: James W. Pluntze
	 

	 	 	 	Telecopy: (978) 946-7803
	 
	 	 	 	 
	 

	 	 	 	with a copy to:
	 
	 	 	 	 
	 

	 	 	 	NaviSite, Inc.
	 

	 	 	 	20 East 66th Street
	 

	 	 	 	New York, NY 10021
	 

	 	 	 	Attention: Arthur Becker, Chief Executive Officer
	 

	 	 	 	Telecopy: (212) 396-2388
	 
	 	 	 	 
	 

	 	Bank:
	 	[                         ]
	 

	 	 	 	[                         ]
	 

	 	 	 	[                         ]
	 

	 	 	 	Attention:
	 

	 	 	 	Telecopy:
	 

	 	 	 	Telephone:
	 
	 	 	 	 
	 

	 	Collateral

Agent:
	 	Agency Services
	 

	 	 	 	300 Madison Avenue
	 

	 	 	 	New York, NY 10017
	 

	 	 	 	Attention: Christine Aharonian
	 

	 	 	 	Telecopy: (212) 856-6763
	 
	 	 	 	 
	 	 	Any party may change its address for notices in the manner set forth above.






          Section 11. Termination.




          (i) Except as otherwise provided in this Section 11, the obligations of the Bank hereunder and
this Control Agreement shall continue in effect until the security interests of the Collateral
Agent in the Designated Accounts and any and all funds therein have been terminated






-4-









 







pursuant to the terms of the Security Agreement and the Collateral Agent has notified
the Bank of such termination in writing.




          (ii) The Bank, acting alone, may terminate this Control Agreement at any time and for any
reason by written notice delivered to the Collateral Agent and the Pledgor not less than thirty
(30) days prior to the effective termination date.




          (iii) Prior to any termination of this Control Agreement pursuant to this Section 11, the Bank
hereby agrees that it shall promptly take, at Pledgor’s sole cost and expense, all reasonable
actions necessary to facilitate the transfer of any funds in the Designated Accounts as follows:
(a) in the case of a termination of this Control Agreement under Section 11(i), to the
institution designated in writing by Pledgor; and (b) in all other cases, to the institution
designated in writing by the Collateral Agent.




          Section 12. Fees and Expenses. The Bank agrees to look solely to the Pledgor for
payment of any and all fees, costs, charges and expenses incurred or otherwise relating to the
Designated Accounts and services provided by the Bank hereunder (collectively, the “Account
Expenses”), and the Pledgor agrees to pay such Account Expenses to the Bank on demand therefor.
The Pledgor acknowledges and agrees that it shall be, and at all times remains, solely liable to
the Bank for all Account Expenses.




          Section 13. Severability. If any term or provision set forth in this Control
Agreement shall be invalid or unenforceable, the remainder of this Control Agreement, other than
those provisions held invalid or unenforceable, shall be construed in all respects as if such
invalid or unenforceable term or provision were omitted.




          Section 14. Counterparts. This Control Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any party hereto may
execute this Control Agreement by signing and delivering one or more counterparts.




[signature page follows]









-5-









 








	 	 	 	 	 
	 	[                
                            ] 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CANADIAN IMPERIAL BANK OF COMMERCE, acting through
its New York Agency, as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[                
                            ],
 

as Bank	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-1









 






	 	 	 	 	 



SCHEDULE 1




Designated Account(s)



 









 





EXHIBIT 6




[Form of]




Copyright Security Agreement



          Copyright Security Agreement, dated as of [               ], by NAVISITE, INC., and [               ] (individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of
CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New York agency, in its capacity as
collateral agent pursuant to the Credit Agreement (in such capacity, the “Collateral
Agent”).




W i t n e s s e t 
h:




          Whereas, the Pledgors are party to a Security Agreement of even date herewith (as
amended, amended and restated, supplemented or otherwise modified from time to time, the
“Security Agreement”) in favor of the Collateral Agent pursuant to which the Pledgors are
required to execute and deliver this Copyright Security Agreement;




          Now, Therefore, in consideration of the premises and to induce the Collateral Agent,
for the benefit of the Secured Parties, to enter into the Credit Agreement, the Pledgors hereby
agree with the Collateral Agent as follows:




          SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the
Security Agreement and used herein have the meaning given to them in the Security Agreement.




          SECTION 2. Grant of Security Interest in Copyright Collateral. Each Pledgor hereby
pledges and grants to the Collateral Agent for the benefit of the Secured Parties a lien on and
security interest in and to all of its right, title and interest in, to and under all the following
Pledged Collateral of such Pledgor:




          (a) Copyrights of such Pledgor listed on Schedule I attached hereto; and




          (b) all Proceeds of any and all of the foregoing (other than Excluded Property).




          SECTION 3. Security Agreement. The security interest granted pursuant to this
Copyright Security Agreement is granted in conjunction with the security interest granted to the
Collateral Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that
the rights and remedies of the Collateral Agent with respect to the security interest in the
Copyrights made and granted hereby are more fully set forth in the Security Agreement, the






 









 







terms and provisions of which are incorporated by reference herein as if fully set forth
herein. In the event that any provision of this Copyright Security Agreement is deemed to conflict
with the Security Agreement, the provisions of the Security Agreement shall control unless the
Collateral Agent shall otherwise determine.




          SECTION 4. Termination. Upon the payment in full of the Secured Obligations and
termination of the Security Agreement, the Collateral Agent shall execute, acknowledge, and deliver
to the Pledgors an instrument in writing in recordable form releasing the collateral pledge, grant,
assignment, lien and security interest in the Copyrights under this Copyright Security Agreement.




          SECTION 5. Counterparts. This Copyright Security Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same instrument, and any party
hereto may execute this Copyright Security Agreement by signing and delivering one or more
counterparts.




[signature page follows]






-2-









 








          In Witness Whereof, each Pledgor has caused this Copyright Security Agreement to be
executed and delivered by its duly authorized officer as of the date first set forth above.




	 	 	 	 	 
	 	Very truly yours,







[PLEDGORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Accepted and Agreed:




CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York Agency, as Collateral Agent




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






-3-









 






SCHEDULE I

to

COPYRIGHT SECURITY AGREEMENT

COPYRIGHT REGISTRATIONS AND COPYRIGHT APPLICATIONS




Copyright Registrations:




	 	 	 	 	 
	 	 	registration	 	 
	owner	 	number	 	title
	 

	 	 
	 	 





Copyright Applications:




	 	 	 
	owner	 	title
	 

	 	 





-4-









 






EXHIBIT 7




[Form of]




Patent Security Agreement



          Patent
Security Agreement, dated as of [          ], by NAVISITE, INC. and [                    ]
(individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of CANADIAN
IMPERIAL BANK OF COMMERCE, acting through its New York Agency, in its capacity as collateral agent
pursuant to the Credit Agreement (in such capacity, the “Collateral Agent”).




W i t n e s s e t h:




          Whereas, the Pledgors are party to a Security Agreement of even date herewith (as
amended, amended and restated, supplemented or otherwise modified from time to time, the
“Security Agreement”) in favor of the Collateral Agent pursuant to which the Pledgors are
required to execute and deliver this Patent Security Agreement;




          Now, Therefore, in consideration of the premises and to induce the Collateral Agent,
for the benefit of the Secured Parties, to enter into the Credit Agreement, the Pledgors hereby
agree with the Collateral Agent as follows:




          SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the
Security Agreement and used herein have the meaning given to them in the Security Agreement.




          SECTION 2. Grant of Security Interest in Patent Collateral. Each Pledgor hereby
pledges and grants to the Collateral Agent for the benefit of the Secured Parties a lien on and
security interest in and to all of its right, title and interest in, to and under all the following
Pledged Collateral of such Pledgor:




          (a) Patents of such Pledgor listed on Schedule I attached hereto; and




          (b) all Proceeds of any and all of the foregoing (other than Excluded Property).




          SECTION 3. Security Agreement. The security interest granted pursuant to this Patent
Security Agreement is granted in conjunction with the security interest granted to the Collateral
Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that the rights
and remedies of the Collateral Agent with respect to the security interest in the Patents made and
granted hereby are more fully set forth in the Security Agreement, the terms






 









 







and provisions of which are incorporated by reference herein as if fully set forth herein. In
the event that any provision of this Patent Security Agreement is deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall control unless the Collateral
Agent shall otherwise determine.




          SECTION 4. Termination. Upon the payment in full of the Secured Obligations and
termination of the Security Agreement, the Collateral Agent shall execute, acknowledge, and deliver
to the Pledgors an instrument in writing in recordable form releasing the collateral pledge, grant,
assignment, lien and security interest in the Patents under this Patent Security Agreement.




          SECTION 5. Counterparts. This Patent Security Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and any party hereto
may execute this Patent Security Agreement by signing and delivering one or more counterparts.




[signature page follows]





-2-











 





          In Witness Whereof, each Pledgor has caused this Patent Security Agreement to be
executed and delivered by its duly authorized officer as of the date first set forth above.




	 	 	 	 	 
	 	Very truly yours,



[PLEDGORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Accepted and Agreed:




CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York Agency as Collateral Agent




	 	 	 	 	 
	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



-3-









 






	 	 	 	 	 



SCHEDULE I

to

PATENT SECURITY AGREEMENT

PATENT REGISTRATIONS AND PATENT APPLICATIONS1




Patent Registrations:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	registration	 	 
	owner	 	number	 	name





Patent Applications:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	application	 	 
	owner	 	number	 	name







 






			
	1	 	Note to attorney: These schedules
include the minimum information required to perfect in the PTO. A conformed
version of perfection certificate would be adequate, provided it contains this
information.




-4-









 










EXHIBIT 8




[Form of]




Trademark Security Agreement




          Trademark
Security Agreement, dated as of [
               ], by NAVISITE, INC., and [                
] (individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of
Canadian Imperial Bank of Commerce, acting through its New York agency, in its capacity as
collateral agent, pursuant to the Credit Agreement (in such capacity, the “Collateral
Agent”).




W i t n e s s e t h:




          Whereas, the Pledgors are party to a Security Agreement of even date herewith (as
amended, amended and restated, supplemented or otherwise modified from time to time, the
“Security Agreement”) in favor of the Collateral Agent pursuant to which the Pledgors are
required to execute and deliver this Trademark Security Agreement;




          Now, Therefore, in consideration of the premises and to induce the Collateral Agent,
for the benefit of the Secured Parties, to enter into the Credit Agreement, the Pledgors hereby
agree with the Collateral Agent as follows:




          SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the
Security Agreement and used herein have the meaning given to them in the Security Agreement.




          SECTION 2. Grant of Security Interest in Trademark Collateral. Each Pledgor hereby
pledges and grants to the Collateral Agent for the benefit of the Secured Parties a lien on and
security interest in and to all of its right, title and interest in, to and under all the following
Pledged Collateral of such Pledgor:




          (a) Trademarks of such Pledgor listed on Schedule I attached hereto;




          (b) all Goodwill associated with such Trademarks; and




          (c) all Proceeds of any and all of the foregoing (other than Excluded Property).




          SECTION 3. Security Agreement. The security interest granted pursuant to this
Trademark Security Agreement is granted in conjunction with the security interest granted to the
Collateral Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that
the rights and remedies of the Collateral Agent with respect to the security interest in






 









 







the Trademarks made and granted hereby are more fully set forth in the Security Agreement, the
terms and provisions of which are incorporated by reference herein as if fully set forth herein.
In the event that any provision of this Trademark Security Agreement is deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall control unless the Collateral
Agent shall otherwise determine.




          SECTION 4. Termination. Upon the payment in full of the Secured Obligations and
termination of the Security Agreement, the Collateral Agent shall execute, acknowledge, and deliver
to the Pledgors an instrument in writing in recordable form releasing the collateral pledge, grant,
assignment, lien and security interest in the Trademarks under this Trademark Security Agreement.




          SECTION 5. Counterparts. This Trademark Security Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same instrument, and any party
hereto may execute this Trademark Security Agreement by signing and delivering one or more
counterparts.




[signature page follows]






-2-









 








          In Witness Whereof, each Pledgor has caused this Trademark Security Agreement to be
executed and delivered by its duly authorized officer as of the date first set forth above.




	 	 	 	 	 
	 	Very truly yours,



[PLEDGORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Accepted and Agreed:




CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York Agency, as Collateral Agent




	 	 	 	 	 
	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



-3-









 






	 	 	 	 	 



SCHEDULE I

to

TRADEMARK SECURITY AGREEMENT

TRADEMARK REGISTRATIONS AND TRADEMARK APPLICATIONS




Trademark Registrations:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	registration	 	 
	owner	 	number	 	TRADEMARK







Trademark Applications:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	application	 	 
	owner	 	number	 	trademark





-4-









 






EXHIBIT 9




FORM OF NOTICE TO BAILEE OF SECURITY INTEREST IN INVENTORY




CERTIFIED MAIL — RETURN RECEIPT REQUESTED



[                     ], 200[        ]





	TO: 	 	 [Bailee’s Name]

[Bailee’s Address]






	 	Re: 	 	 [Borrower]




Ladies and Gentlemen:




          In connection with that certain Security Agreement, dated as of June 8, 2007 (the
“Security Agreement”), made by NAVISITE, INC., the Guarantors party thereto and CANADIAN
IMPERIAL BANK OF COMMERCE, acting through its New York Agency, as Collateral Agent (“CIBC”), we
have granted to CIBC a security interest in substantially all of our personal property, including
our inventory.




          This letter constitutes notice to you, and your signature below will constitute your
acknowledgment, of CIBC, acting through its New York Agency’s continuing first priority security
interest in all goods with respect to which you are acting as bailee. Until you are notified in
writing to the contrary by CIBC, acting through its New York Agency, however, you may continue to
accept instructions from us regarding the delivery of goods stored by you.




          Your acknowledgment also constitutes a waiver and release, for CIBC, acting through its New
York Agency’s benefit, of any and all claims, liens, including bailee’s liens, and demands of every
kind which you have or may later have against such goods (including any right to include such goods
in any secured financing to which you may become party).




          In order to complete our records, kindly have a duplicate of this letter signed by an officer
of your company and return same to us at your earliest convenience.














-5-









 








	 	 	 	 	 	 	 

	Receipt acknowledged, confirmed and
approved:	 	Very truly yours,
	 
	[BAILEE]	 	[APPLICABLE PLEDGOR]
	 
	By:

	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 
	 

	 	Name:
	 	 	 	Name:
	 

	 	Title:
	 	 	 	Title:





cc:      CANADIAN IMPERIAL BANK OF COMMERCE





-6-










 




EXHIBIT M

[Form of]

OPINION OF COMPANY COUNSEL

September 12, 2007



Canadian Imperial Bank of Commerce, as Issuing Bank and Administrative Agent,


and each of the Lenders under the Amended and Restated Credit Agreement referred to below





	 	Re:	 	 Amended and Restated Credit Agreement dated as of September 12, 2007 by and
among NaviSite, Inc., certain subsidiaries of NaviSite, Inc., the Lenders, CIBC World
Markets Corp., CIT Lending Services Corporation and Canadian Imperial Bank of Commerce.




Ladies and Gentlemen:




     We have acted as counsel to NaviSite, Inc. (the “Company”) and the subsidiaries of the Company
identified on Schedule 1 hereto (as guarantors) (the “Subsidiaries”) in connection with the
negotiation, execution and delivery of the Amended and Restated Credit Agreement (the “Amended and
Restated Credit Agreement”) dated as of September 12, 2007 among the Company, the Subsidiaries, the
Lenders, CIBC World Markets Corp. (as sole lead arranger, documentation agent, and bookrunner), CIT
Lending Services Corporation (as syndication agent) and Canadian Imperial Bank of Commerce, acting
through its New York agency (as issuing bank (in such capacity, “Issuing Bank”), administrative
agent for the Lenders and collateral agent for the Secured Parties and the Issuing Bank), and the
transactions described therein. Unless otherwise indicated, each capitalized term used in this
opinion shall have the meaning ascribed thereto in the Amended and Restated Credit Agreement. This
opinion is being delivered to you pursuant to the requirements of Section 4.01(d) of the Amended
and Restated Credit Agreement.



     For purposes of this opinion, we have examined originals or copies of the Amended and Restated
Credit Agreement and the other documents executed and delivered by the Company and the Subsidiaries
in connection therewith and listed on Schedule 2 hereto, all dated as of the date of the
Amended and Restated Credit Agreement except as otherwise indicated on Schedule 2 (each,
including the Amended and Restated Credit Agreement, a “Credit Document,” and collectively, the
“Credit Documents”), and such other documents as we have deemed necessary for the rendering of the
opinions expressed below. In our examination of the aforesaid documents, we have assumed, without
independent verification or investigation, the genuineness of all signatures, the enforceability of
all Credit Documents against the Agents and the Lenders, the authenticity of all documents
submitted to us as originals, and the conformity to the original documents of all documents
submitted to us as certified, photostatic, reproduced or conformed copies of original documents. In
expressing the opinions set forth below, we have relied, without independent investigation, upon
the factual matters contained in the representations and warranties of the Company and the
Subsidiaries in the Credit Documents and upon certificates of public officials and of the officers
of the Company and each Subsidiary.



     Except for the corporate existence opinion stated in paragraph 1 below, our opinions
expressed herein are limited to New York law, the Delaware General Corporation Law, the



M-1









 





Delaware Uniform Commercial Code (“Delaware UCC”) and the federal law of the United States. Without
limiting the foregoing, no opinion is expressed with respect to the laws of any state other than
Delaware or New York or any governmental or quasi-governmental agency or subdivision of such other
state, and we assume without investigation that no provisions of any other such state’s law will
affect in any manner any of our opinions set forth below. In addition, with respect to the opinions
regarding validity, attachment, creation or perfection of any security interest, we do not express
any opinion on the effect of the laws of any jurisdiction other than the New York Uniform
Commercial Code (“New York UCC”) and the Delaware UCC. This opinion is also rendered only with
respect to the aforementioned laws as in effect on the date hereof.




     References to “our knowledge” or to matters “known to us” or equivalent words means the actual
knowledge of the lawyers of this firm who have had active involvement in our representation of the
Company and the Subsidiaries, after such inquiry as they deemed appropriate.



     We express no opinion with respect to the effect or enforceability of any provision of any
Credit Document that (i) increases the rate of interest upon any default or imposes a late fee to
the extent either is determined to be a penalty, (ii) provides for collection of interest on
overdue interest, (iii) purports to establish evidentiary standards, (iv) waives any statutory,
constitutional or other legal right, (v) provides for recourse or exercise of any remedial rights
in the absence of notice and a hearing, (vi) relates to the appointment of a receiver, (vii)
provides for submission to exclusive jurisdiction or the exclusive choice of venue, (viii) purports
to grant a power of attorney which is against public policy, (ix) relates to the election or
cumulation of remedies to the extent such remedies are not enforced in a commercially reasonable
manner, (x) purports to grant rights of set-off or similar rights, (xi) gives the right of specific
performance and injunctive and other forms of equitable relief, (xii) authorizes a secured party to
take discretionary independent action for the account of or as an agent or attorney-in-fact for a
debtor, (xiii) requires that provisions thereof be waived only in writing, to the extent that an
oral agreement or an implied agreement by trade practices or course of conduct has been created
modifying any provisions of such documents or (xiv) relates to the effect of any failure to
exercise any right or remedy provided to you in the Credit Documents.



     Without limiting the generality of any other exception, limitation or qualification, we have
not considered and do not express an opinion with respect to any federal or state securities,
environmental, tax, bankruptcy or antitrust laws and regulations.



     Our opinions below are subject to, and may be limited or otherwise affected by, bankruptcy,
insolvency, reorganization, liquidation, readjustment of debt, receivership, moratorium, fraudulent
conveyance and transfer acts, equitable subordination, equity of redemption, recharacterization or
other similar legal principles now or hereafter in effect governing or affecting the rights and
remedies of debtors and creditors generally, general



M-2









 





principles of equity, regardless of whether considered in a proceeding at law or in equity, including without limitation, principles that
(a) include a requirement that a creditor act with reasonableness and in good faith and deal fairly
with its debtors, (b) limit a creditor’s right to accelerate maturity of a debt upon the occurrence of a default deemed immaterial, or (c) might
render certain waivers unenforceable, or federal and state securities laws and the public policies
underlying such laws.




     On the basis of the foregoing, and subject to the assumptions, exceptions and qualifications
set forth herein, we are of the opinion that:



     1. The Company and each Subsidiary is validly existing and in good standing under the
applicable laws of each entity’s respective jurisdiction of organization.



     2. The Company and each Subsidiary has the corporate power and authority to execute, deliver
and perform all of its obligations under each of the Credit Documents to which it is a party. The
execution and delivery of each of the Credit Documents and the consummation by the Company and each
Subsidiary of the transactions contemplated thereby have been duly authorized by all requisite
corporate action on the part of the Company and each Subsidiary. Each of the Credit Documents has
been duly executed and delivered by the Company and each Subsidiary party thereto.



     3. Each of the Credit Documents constitutes the valid and binding obligation of the Company
and each Subsidiary party thereto, enforceable against the Company and each such Subsidiary in
accordance with its terms.



     4. Except as is specifically indicated on Schedule 3 hereto, the execution and
delivery by the Company and each Subsidiary of each of the Credit Documents to which it is a party
and the performance by the Company and each Subsidiary of its obligations under each of the Credit
Documents to which it is a party, each in accordance with its terms, do not (a) conflict with the
Certificate of Incorporation or the By-laws of the Company or such Subsidiary, each as amended to
date, (b) constitute a violation of, or a default under, any contract or agreement listed on
Schedule 3 hereto or (c) cause the creation of any security interest or lien upon any of
the property of the Company or any Subsidiary pursuant to any contract or agreement listed on
Schedule 3 hereto.



     5. Neither the execution, delivery nor performance by the Company and each Subsidiary of the
Credit Documents to which the Company and each Subsidiary is a party will violate any provision of
any law or regulation covered by this opinion applicable to the Company or such Subsidiary.



     6. With the exception of filings or other actions required for the perfection of security



M-3









 




interests granted pursuant to the Security Agreement, dated as of June 8, 2007 by and among the
Company, the Subsidiaries and the Collateral Agent and supplemented by the Joinder Agreements
(“Security Agreement”) or in connection with the exercise of remedies or the disposition of
Collateral thereunder, no consent, approval, license, authorization or validation of, or filing,
recording or registration with, any governmental authority pursuant to any applicable law or
regulation, which has not been obtained or taken and is not in full force and effect, is required
to authorize, or is required in connection with, the execution or delivery of any of the Credit
Documents by the Company or any Subsidiary.




     7. None of the execution, delivery or performance by the Company or any Subsidiary of its
obligations under the Credit Documents to which it is a party nor compliance by the Company or any
Subsidiary with the terms thereof will violate any applicable order, judgment, or decree of any
governmental authority to which the Company or any Subsidiary is subject and of which we are aware.



     8. The Security Agreement will, upon execution and delivery thereof and the making of the
Additional Term Loans (as defined in the Amended and Restated Credit Agreement) to be made under
the Amended and Restated Credit Agreement on the date hereof, create a valid security interest in
favor of the Collateral Agent for the benefit of the Secured Parties in the Collateral referred to
therein to the extent that such Collateral constitutes property in which a security interest may be
created under Article 9 of the New York UCC to secure the Obligations.



     9. The copies of the UCC-1 financing statements attached hereto as Schedule 4
(collectively, and together with all schedules and exhibits to such financing statements “the
“Financing Statements”) are in appropriate form under the applicable UCC for filing with the
Secretary of State of the State of Delaware, except that to the extent that they are intended to be
filed with the Secretary of the State of California, we assume, without investigation, that an
appropriate form for filing in California is one which would be appropriate for filing in New York,
and that they are therefore in appropriate form for filing with the Secretary of State of the State
of California. The security interests in favor of the Collateral Agent for the benefit of the
Secured Parties in the Collateral described in the Security Agreement will be perfected to the
extent that (i) the filing of a financing statement in the State of Delaware or the State of
California under the provisions of the applicable UCC is effective to perfect a security interest
in such Collateral and (ii) the Financing Statements are properly filed with the Secretary of State
of the proper state.



     10. After giving effect to the execution and delivery of the Amended and Restated Credit
Agreement and the making of the Additional Term Loans, (i) the security interest in favor of the
Collateral Agent for the benefit of the Secured Parties in each Loan Party’s Collateral described
in the Security Agreement continues to be a valid and perfected security interest to the same
extent as immediately prior to giving effect to the execution and delivery of the Amended and



M-4









 




Restated Credit Agreement, as to which matters, as of the Effective Date, we refer you to our
opinion dated Original Closing Date (the “Closing Opinion”) (subject to the assumptions,
qualifications, exclusions and limitations stated therein) and (ii) the security interest in favor
of the Collateral Agent for the benefit of the Secured Parties in each Loan Party’s Collateral
described in the Security Agreement is a valid security interest which is perfected by the UCC-1
financing statements referenced in the Closing Opinion (subject to the assumptions, qualifications,
exclusions and limitations stated therein) and no additional UCC-1 financing statements are
required to be filed on the date hereof pursuant to the Uniform Commercial Code as in effect on the
date hereof in the State of Delaware or the State of California to perfect such security interest.




     11. Upon delivery to the Collateral Agent in the State of New York of the certificates
representing the Securities Collateral that are required to be delivered to the Collateral
Agent pursuant to the Security Agreement (the “Pledged Securities”) in registered form, indorsed in
blank by an effective indorsement or accompanied by undated stock powers with respect thereto duly
indorsed in blank by an effective indorsement, the Collateral Agent will have control (within the
meaning of the New York UCC) of the Pledged Securities for the benefit of the Secured Parties under
the New York UCC. Assuming neither the Collateral Agent nor any of the Secured Parties has notice
of any adverse claim (within the meaning of the New York UCC) to the Pledged Securities, the
Collateral Agent will acquire the security interest in the Pledged Securities for the benefit of
the Secured Parties free of any adverse claim.



     12. Assuming the proceeds of the Additional Term Loans are used in accordance with the terms
of the Amended and Restated Credit Agreement, neither the making of the Additional term Loans nor
the pledge of the Collateral pursuant to the terms of the Security Agreement violates Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.



     13. Upon due filing of the Trademark Security Agreement and the Copyright Security Agreement
in the United States Patent and Trademark Office and the United States Copyright Office
respectively, the Liens created by the Security Agreement shall constitute fully perfected Liens
on, and security interests in, all right, title and interest of the grantors thereunder in the
Intellectual Property Collateral (as defined in the Security Agreement).



     14. Neither the Company nor any Subsidiary is and, solely after giving effect to the
Additional Term Loans made pursuant to the Credit Documents, will any of them be, an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended.



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     Our opinions set forth above are subject to the following qualifications:




     A. We express no opinion as to the right of the Administrative Agent or any Lender to
collect any payment to the extent that such payment constitutes a penalty, forfeiture or late
charge.




     B. We have assumed that (i) any consideration contemplated to be given under the
Security Agreement was given at the time of the delivery and execution of such document, (ii)
the Collateral (other than property which becomes Collateral after the date hereof) exists and
the applicable Loan Party has “rights” in such Collateral existing on the date hereof and will
have “rights” in property which becomes Collateral after the date hereof, in each case as
contemplated by the New York UCC, (iii) each of the Loan Parties has received “value” (as
defined in the New York UCC), (iv) the descriptions of Collateral in the Security Agreement
and the Financing Statements reasonably describe the property intended to be described as
Collateral, (v) all information regarding the secured party on the Financing Statements is
accurate and complete in all respects, and (vi) the representations in the Credit Documents,
including, without limitation, the information on any of the exhibits and schedules thereto,
regarding the jurisdiction of incorporation of the Loan Parties are accurate and complete as
of the date of the filing of the Financing Statements. We have made no examination of, and no
opinion is given herein as to, any parties’ respective title to, or other ownership rights in,
or the existence of any liens, charges or encumbrances on, or adverse
claims against, the Collateral, other than the security interests in favor of the
Administrative Agent as contemplated by the Security Agreement.




     C. Our opinions are subject to the provisions of Section 9-203 of the New York UCC
relating to the time of attachment. We have assumed that no agreement exists that postpones
attachment or conveyance of, or modifies, releases or terminates, the interests of the
Administrative Agent in the Collateral or that would expand, modify or otherwise affect the
respective rights and obligations of the parties to the Security Agreement.




     D. Any security interest in any Collateral or proceeds of any Collateral is limited to
the extent set forth in Section 9-315 of the New York UCC.




     E. We express no opinion as to the priority of any security interest over any other or
competing interest in the Collateral.




     F. With respect to property as to which the security interests purported to be granted
pursuant to the Security Agreement attach after the date thereof or hereof, we call to your
attention that Section 552 of the United States Bankruptcy Code (to the extent, if any, that
such section is relevant to any Loan Party) limits the extent to which assets



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acquired by a debtor after the commencement of a case under the United States Bankruptcy Code may be subject
to a security interest arising from a security interest entered into by the debtor before the
commencement of such case.




     G. We express no opinion as to the applicability of Section 548 of the United States
Bankruptcy Code or of any provisions of any state fraudulent conveyance statute or law to the
transactions contemplated by the Credit Documents.




     H. We express no opinion as to the validity, binding effect or enforceability of any
provision of any Credit Document that purports to waive, release or vary any right of, or any
duties owing to, a party to the extent limited by Sections 1-102(3), 9-601, 9-602 or 9-603 of
the New York UCC or other provisions of applicable law.




     I. We call to your attention that Section 9-108(c) of the New York UCC provides that
supergeneric descriptions are insufficient to create a valid security interest and that
Section 9-108(e)(1) of the New York UCC provides that a description of commercial tort claims
by type only is insufficient to create a valid security interest.




     J. We express no opinion with respect to any Collateral which is subject to a
certificate of title or a document of title.




     K. We express no opinion with respect to any Collateral which constitutes goods which
are an accession to, or commingled or processed with other goods to the extent that the
security interest of the Administrative Agent is limited by Section 9-335 or 9-336 of the New
York UCC.




     L. In the case of any chattel paper, account or general intangible which is itself
secured by other property, we express no opinion with respect to any Loan Party’s rights in
and to such underlying collateral.




     M. We call to your attention that (i) the perfection of the security interest in any
Collateral described in any Financing Statement may be terminated as to any Collateral
acquired subsequent to a change in the name, nature, corporate structure or identity of any
Loan Party and may otherwise be affected by the matters set forth in Sections 9-316, 9-507 and
9-508 of the Delaware UCC and (ii) the Delaware UCC requires the filing of continuation
statements within the period six months prior to the expiration of five years from the date of
the original filing of the Financing Statements.




     N. We express no opinion with respect to any Collateral consisting of claims against any
government or governmental agency (including, without limitation, the United States of America
or any state thereof or any agency or department of the United States of America or any state
thereof). We call to your attention that the perfection and the effect of perfection and
non-perfection of the security interests in favor of the Administrative Agent



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for the benefit of the Administrative Agent and the Lenders in the Collateral may be governed by laws other
than the New York UCC.




     O. The enforceability by the Administrative Agent or the Lenders of the security
interest in the Collateral consisting of rights under contracts may be subject to the terms of
those contracts or other contracts between a Loan Party and other parties thereto and claims
or defenses of such other parties against a Loan Party.



     The opinions expressed herein are matters of professional judgment, are not a guarantee
of result and are effective only as of the date hereof. We do not undertake to advise you of any
matter within the scope of this letter that comes to our attention after the date of this letter
and disclaim any responsibility to advise you of any future changes in law or fact that may affect
the opinions set forth herein. We express no opinion other than those opinions expressly set forth
herein. No expansion of the opinions expressed herein may or should be made by implication or
otherwise. This opinion is being furnished to you in connection with the transaction described
above and may not be relied on for any other purpose or by anyone else without our prior written
consent; provided, however, a copy of this opinion may be furnished to any successor Agent, any
assignee of any Lender and any prospective Lenders, and such persons may rely on this letter and
the opinions expressed herein as of the date hereof as if it were addressed and had been delivered
to them on the date hereof.


Very truly yours,



BRL Law Group LLC











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EXHIBIT N




[Form of]

SOLVENCY CERTIFICATE




     I, the undersigned, [financial officer] of NaviSite, Inc. (“Borrower”), DO HEREBY CERTIFY on
behalf of Borrower that:



     1. This Certificate is furnished pursuant to Section 4.01(e) of the Amended and Restated
Credit Agreement, (as in effect on the date of this Certificate) dated as of September 12, 2007 (as
amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), amending and restating the Credit Agreement dated as of June 8, 2007 among NaviSite,
Inc., a Delaware corporation (“Borrower”), the Subsidiary Guarantors (such term and each other
capitalized term used but not defined herein having the meaning given it in Article I of the Credit
Agreement), the Lenders, CIBC WORLD MARKETS CORP., as sole lead arranger (in such capacity, “Sole
Lead Arranger”), documentation agent (in such capacity, “Documentation Agent”) and 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”), administrative agent (in such capacity,
“Administrative Agent”) for the Lenders and collateral agent (in such capacity, “Collateral Agent”)
for the Secured Parties and Issuing Bank.



     2. Immediately following the consummation of the Current Transactions and immediately
following the making of each Loan and after giving effect to the application of the proceeds of
each Loan on the date hereof, (a) the fair value of the properties of each Loan Party (on a
consolidated basis with its Subsidiaries) exceeds its debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the property of each Loan Party (on
a consolidated basis with its Subsidiaries) is greater than the amount that will be required to pay
the probable liability of its debts and other liabilities, subordinated, contingent or otherwise,
as such debts and other liabilities become absolute and matured; (c) each Loan Party (on a
consolidated basis with its Subsidiaries) is able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) each
Loan Party (on a consolidated basis with its Subsidiaries) does not have unreasonably small capital
with which to conduct the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Effective Date.



[Signature Page Follows]






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     IN WITNESS WHEREOF, I have hereunto set my hand this [ ]th day of [               ].



	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	[Financial Officer] 	 



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EXHIBIT O




Form of

INTERCOMPANY NOTE




New York, New York

[          ]





     FOR VALUE RECEIVED, each of the undersigned, to the extent a borrower from time to time from
any other entity listed on the signature page hereto (each, in such capacity, a “Payor”), hereby
promises to pay on demand to the order of such other entity listed below (each, in such capacity, a
“Payee”), in lawful money of the United States of America in immediately available funds, at such
location in the United States of America as a Payee shall from time to time designate, the unpaid
principal amount of all loans and advances (including trade payables) made by such Payee to such
Payor. Each Payor promises also to pay interest on the unpaid principal amount of all such loans
and advances in like money at said location from the date of such loans and advances until paid at
such rate per annum as shall be agreed upon from time to time by such Payor and such Payee.



     This note (“Note”) is an Intercompany Note referred to in the Credit Agreement dated as of
June 8, 2007 (as amended, amended and restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among Borrower, the Subsidiary Guarantors, the Lenders, CIBC WORLD
MARKETS CORP, as sole lead arranger, documentation agent and bookrunner, CIT LENDING SERVICES
CORPORATION, as syndication agent and CANADIAN IMPERIAL BANK OF COMMERCE, acting through its New
York agency, as administrative agent for the Lenders, collateral agent for the Secured Parties and
Issuing Bank, and is subject to the terms thereof, and shall be pledged by each Payee pursuant to
the Security Agreement, to the extent required pursuant to the terms thereof. Each Payee hereby
acknowledges and agrees that the Administrative Agent may exercise all rights provided in the
Credit Agreement and the Security Agreement with respect to this Note.




     Anything in this Note to the contrary notwithstanding, the indebtedness evidenced by this Note
owed by any Payor that is Borrower or a Guarantor to any Payee other than Borrower shall be
subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth,
to all Obligations of such Payor under the Credit Agreement, including, without limitation, where
applicable, under such Payor’s guarantee of the Obligations under the Credit Agreement (such
Obligations and other indebtedness and obligations in connection with any renewal, refunding,
restructuring or refinancing thereof, including interest thereon accruing after the commencement of
any proceedings referred to in clause (i) below, whether or not such interest is an allowed claim
in such proceeding, being hereinafter collectively referred to as “Senior Indebtedness”):




     (i) In the event of any insolvency or bankruptcy proceedings, and any receivership,
liquidation, reorganization or other similar proceedings in connection therewith, relative
to any Payor or to its creditors, as such, or to its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other winding up of such Payor,
whether or not involving insolvency or bankruptcy, then (x) the holders of Senior
Indebtedness shall be paid in full in cash in respect of all amounts constituting Senior
Indebtedness before any Payee is entitled to receive (whether directly or indirectly), or
make any demands for, any payment on account of this Note and (y) until the holders of
Senior Indebtedness are paid in full in cash in respect of all amounts



O-1









 






constituting Senior Indebtedness, any payment or distribution to which such Payee would
otherwise be entitled (other than debt securities of such Payor that are subordinated, to at
least the same extent as this Note, to the payment of all Senior Indebtedness then
outstanding (such securities being hereinafter referred to as “Restructured Debt
Securities”)) shall be made to the holders of Senior Indebtedness;




     (ii) if any default occurs and is continuing with respect to any Senior Indebtedness
(including any Default under the Credit Agreement), then no payment or distribution of any
kind or character shall be made by or on behalf of the Payor or any other Person on its
behalf with respect to this Note; and




     (iii) if any payment or distribution of any character, whether in cash, securities or
other property (other than Restructured Debt Securities), in respect of this Note shall
(despite these subordination provisions) be received by any Payee in violation of clause (i)
or (ii) before all Senior Indebtedness shall have been paid in full in cash, such payment or
distribution shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Indebtedness (or their representatives), ratably according to the
respective aggregate amounts remaining unpaid thereon, to the extent necessary to pay all
Senior Indebtedness in full in cash.



     To the fullest extent permitted by law, no present or future holder of Senior Indebtedness
shall be prejudiced in its right to enforce the subordination of this Note by any act or failure to
act on the part of any Payor or by any act or failure to act on the part of such holder or any
trustee or agent for such holder. Each Payee and each Payor hereby agree that the subordination of
this Note is for the benefit of the Administrative Agent[, the Issuing Bank] and the Lenders and
the Administrative Agent[, the Issuing Bank] and the Lenders are obligees under this Note to the
same extent as if their names were written herein as such and the Administrative Agent may, on
behalf of itself[, the Issuing Bank] and the Lenders, proceed to enforce the subordination
provisions herein.



     The indebtedness evidenced by this Note owed by any Payor that is not Borrower or a Guarantor
shall not be subordinated to, and shall rank pari passu in right of payment with, any other
obligation of such Payor.



     Nothing contained in the subordination provisions set forth above is intended to or will
impair, as between each Payor and each Payee, the obligations of such Payor, which are absolute and
unconditional, to pay to such Payee the principal of and interest on this Note as and when due and
payable in accordance with its terms, or is intended to or will affect the relative rights of such
Payee and other creditors of such Payor other than the holders of Senior Indebtedness.



     Each Payee is hereby authorized to record all loans and advances made by it to any Payor (all
of which shall be evidenced by this Note), and all repayments or prepayments thereof, in its books
and records, such books and records constituting prima facie evidence of the accuracy of the
information contained therein.



     Each Payor hereby waives presentment, demand, protest or notice of any kind in connection with
this Note. All payments under this Note shall be made without offset, counterclaim or deduction of
any kind.



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     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.



	 	 	 	 	 
	 	NAVISITE, INC.



[LIST ALL SUBSIDIARIES]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



O-3









 






	 	 	 	 	 



EXHIBIT P




[Form of]

NON-BANK CERTIFICATE





     Reference is made to the Credit Agreement dated as of June 8, 2007 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among
NaviSite, Inc., a Delaware corporation (“Borrower”), the Subsidiary Guarantors (such term and each
other capitalized term used but not defined herein having the meaning given it in Article I of the
Credit Agreement), the Lenders, CIBC WORLD MARKETS CORP., as sole lead arranger (in such capacity,
“Sole Lead Arranger”), documentation agent (in such capacity, “Documentation Agent”) and 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”), administrative agent (in such capacity,
“Administrative Agent”) for the Lenders and collateral agent (in such capacity, “Collateral Agent”)
for the Secured Parties and Issuing Bank.



     The undersigned is not (i) a bank (as such term is used in Section 881(c)(3)(A) of the
Internal Revenue Code of 1986, as amended (the “Code”)), (ii) a “10 percent shareholder” of
Borrower within the meaning of section 881(c)(3)(B) of the Code, or (iii) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code.



	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[ADDRESS]

 	 
	 


Dated:                                         , 200___





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