exv10w3



 





Exhibit 10.3




AMENDMENT, WAIVER AND CONSENT AGREEMENT NO. 3




          AMENDMENT, WAIVER AND CONSENT AGREEMENT NO. 3 (this “Amendment”), dated as of January 31,
2008, relating to the Amended and Restated Credit Agreement (as amended, supplemented or otherwise
modified from time to time, the “Credit 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 shall have the meaning assigned to such term in
the Credit Agreement), 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.




W I T N E S S E T H :




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




          WHEREAS, Section 6.01(e)(ii) of the Credit Agreement permits one or more Foreign
Subsidiaries of the Borrower incorporated in the United Kingdom to incur Indebtedness not to exceed
$10.0 million in the aggregate over the term of the Credit Agreement, the proceeds of which are to
be used to fund the buildout and/or improvements to a data center in the United Kingdom;




          WHEREAS, Section 6.01(e)(i) of the Credit Agreement permits the Borrower to incur
Indebtedness not to exceed $8.0 million in the aggregate at any time outstanding in respect of
Purchase Money Obligations and Capital Lease Obligations;




          WHEREAS, in May 2007, Borrower entered into an agreement to lease 10,000 square feet of data
center space in the United Kingdom and simultaneously therewith, Borrower entered into an agreement
to provide colocation services to Hewlett Packard in the same space;




          WHEREAS, Borrower had believed that the terms of such arrangements were consistent with the
monetary limits set forth in Section 6.01(e)(i) and (ii);




          WHEREAS, Borrower has determined in consultation with its independent accountants that the
treatment in accordance with GAAP of such arrangements would result in Indebtedness of
approximately $16.5 million being reflected in the financial statements of Borrower which amount
exceeds the limits set forth in Section 6.01(e)(i) and (ii);




          WHEREAS, as a consequence thereof, one or more Defaults are in existence and continuing under
the Credit Agreement;




          WHEREAS, Borrower has requested that the Credit Agreement be amended to increase the Permitted
UK Datasite Buildout Indebtedness amount in the Credit Agreement from $10.0 million to $16.5
million;




 









 





          WHEREAS, Borrower has requested that the Administrative Agent and the Lenders agree, subject
to the terms and conditions of this Amendment, to (i) consent to the increase in the Permitted UK
Datasite Buildout Indebtedness and (ii) waive the Defaults and Events of Default arising from the
failure to comply with the limitations set forth in Sections 6.01(e)(i) and (ii) (the
“Subject Defaults”);




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




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




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




ARTICLE I




CONSENTS




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




ARTICLE II




WAIVER




          SECTION 2.01 Waiver of Defaults and Event of Default. Subject to the conditions
precedent set forth in Article V of this Amendment the Consenting Lenders hereby waive any
Defaults and Event of Default resulting from (i) any failure of Borrower to provide the related
notification required by Section 5.02(a), with respect to the Subject Defaults, in each
case to the extent any Default or Event of Default will arise therefrom, (ii) the failure to comply
with the $10,000,000 limitation pursuant to Section 6.01(e)(ii), with respect to the
Subject Defaults, and (iii) the failure to comply with the $8,000,000 limitation pursuant to
Section 6.01(e)(i), with respect to the Subject Defaults.




ARTICLE III

AMENDMENT TO CREDIT AGREEMENT




          SECTION 3.01 Amendment to Credit Agreement. The Credit Agreement is hereby amended as
follows (subject to the conditions precedent set forth in Article V of this Amendment):





     (a) Section 6.01(e)(ii) is hereby amended by deleting the reference to
“$10,000,000” therein and replacing it with “$16,500,000” and adding at the end of the
clause before the semicolon the following: “; provided that such Permitted UK Datasite
Buildout Indebtedness will be reduced by the repayment of Permitted UK Datasite Buildout
Indebtedness until such time that it shall not exceed $10,000,000”.



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ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          Borrower hereby represents, warrants and acknowledges the following:




          SECTION 4.01 Representations and Warranties. The representations and warranties of
the Loan Parties contained in Article III of the Credit Agreement are true and correct in
all material respects on and as of the date hereof as though made on and as of this date (other
than representations and warranties which by their terms relate to an earlier date), except with
respect to the matters described herein.




          SECTION 4.02 No Default or Event of Default. Both immediately before and after giving
effect to this Amendment, no Default or Event of Default has occurred and is continuing, other than
with respect to the matters described herein.




          SECTION 4.03 Authorization; Enforceability. Each Loan Party has the power and
authority to execute, deliver and perform its obligations under this Amendment and has taken all
necessary corporate or other action to authorize the execution, delivery and performance by it of
this Amendment.




          SECTION 4.04 Execution. This Amendment has been duly executed and delivered by each
Loan Party and constitutes a legal, valid and binding obligation of such person, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.




          SECTION 4.05 No Conflicts. The execution, delivery and performance of this Amendment
by each Loan Party (i) will not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, (ii) will not violate any Requirement of Law
applicable to such Loan Party and (iii) will not violate or result in a default under any indenture
or other material agreement or instrument binding upon such Loan Party or its assets, or give rise
to a right thereunder to require any payment to be made by such Loan Party or give rise to a right
of, or result in, termination, cancellation or acceleration of any material obligation thereunder.




ARTICLE V




CONDITIONS PRECEDENT TO EFFECTIVENESS




          The effectiveness of this Amendment is subject to the prior satisfaction of the following
conditions precedent:




          SECTION 5.01 Costs and Expenses. Borrower shall have paid all reasonable, documented
out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment and the documentation contemplated hereby, including the
reasonable fees and out-of-pocket expenses of Cahill Gordon & Reindel llp, counsel for the
Administrative Agent with respect thereto.




          SECTION 5.02 Execution by Loan Parties. Borrower shall have delivered to the
Administrative Agent (or its counsel) a copy of this Amendment manually executed and delivered by
each Loan Party (which may be transmitted by facsimile or by email).




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          SECTION 5.03 Execution by Consenting Lenders and Collateral Agent. The Administrative
Agent (or its counsel) shall have received from each Consenting Lender and each of the other
parties hereto a counterpart of this Amendment executed on behalf of such party (which may be
transmitted by facsimile or by email).




ARTICLE VI




AFFIRMATION AND ACKNOWLEDGMENT




          SECTION 6.01 Acknowledgment and Affirmation. Each Loan Party hereby (i) expressly
acknowledges and affirms the terms of the Credit Agreement and the other Loan Documents, (ii)
ratifies and affirms after giving effect to this Amendment its obligations under the Loan Documents
(including guarantees and security agreements) executed by such Loan Party and (iii) after giving
effect to this Amendment, acknowledges, renews and extends its continued liability under all such
Loan Documents and agrees such Loan Documents remain in full force and effect.




          SECTION 6.02 Enforceability. Each Loan Party further confirms that each Loan Document
to which it is a party is and shall continue to be in full force and effect and the same are hereby
ratified and confirmed in all respects.




          SECTION 6.03 Course of Dealing. Each Loan Party hereby acknowledges and agrees that
the acceptance by the Administrative Agent, each Lender and each other Agent of this Amendment
shall not be construed in any manner to establish any course of dealing on any Agent’s or Lender’s
part, including the providing of any notice or the requesting of any acknowledgment not otherwise
expressly provided for in any Loan Document with respect to any future amendment, waiver,
supplement or other modification to any Loan Document or any arrangement contemplated by any Loan
Document.




ARTICLE VII




MISCELLANEOUS PROVISIONS




          SECTION 7.01 Effectiveness. This Amendment shall become effective as of the date (the
“Amendment Effective Date”) on which the Administrative Agent (or its counsel) shall have received
duly executed counterparts hereof that, when taken together, bear the signatures of the Loan
Parties and the Consenting Lenders.




          SECTION 7.02 Effect of Amendment. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights or remedies of the Lenders, the Administrative Agent or the Collateral Agent
under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other provision of the Credit Agreement or of any other Loan Document, all
of which are ratified and affirmed in all respects and shall continue in full force and effect.
Nothing herein shall be deemed to entitle Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Loan Document in similar or different circumstances.
This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement. On and
after giving effect to this Amendment, each reference in the Credit Agreement to “this Agreement,”
“hereunder,” “hereof” or words of like import referring to the Credit Agreement, shall mean and be
a reference to the Credit Agreement as amended by this Amendment. This Amendment and the other
Loan Documents embody the entire agreement between




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the parties hereto and supersede all prior agreements and understandings, oral or written, if
any, relating to the subject matter hereof.




          SECTION 7.03 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this Amendment or any
provisions hereof.




          SECTION 7.04 Execution in Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement. Delivery of an executed counterpart by
facsimile or email shall be effective as delivery of a manually executed counterpart.




          SECTION 7.05 Cooperation; Other Documents. At all times following the execution of
this Amendment, each Loan Party shall execute and deliver to the Lenders and the Administrative
Agent, or shall cause to be executed and delivered to the Lenders and the Administrative Agent, and
shall do or cause to be done all such other acts and things as any of the Lenders and the
Administrative Agent may reasonably deem to be necessary or desirable to confirm their obligations
under the Loan Documents.




          SECTION 7.06 Governing Law; Jurisdiction; Consent to Service of Process. This
Amendment shall be construed in accordance with and governed by the law of the State of New York,
without regard to conflicts of law principles that would require the application of the laws of
another jurisdiction.




          SECTION 7.07 Release. In further consideration of the Consenting Lenders’ execution
of this Amendment, each Loan Party hereby releases the Administrative Agent, the Collateral Agent
and each Lender and each of their respective affiliates, officers, employees, directors, agents and
attorneys (collectively, the “Releasees”) from any and all claims, demands, liabilities,
responsibilities, disputes, causes of action (whether at law or equity) and obligations of every
kind or nature whatsoever, whether liquidated or unliquidated, known or unknown, matured or
unmatured, fixed or contingent that any Loan Party may have against the Releasees which arise from
or in any way relate to the Credit Agreement, Obligations and/or Secured Obligations, any
Collateral, any Loan Document, any documents, agreements, dealings or other matters in connection
with or relating to any of the Loan Documents, and any third parties liable in whole or in part for
the Obligations or Secured Obligations, in each case to the extent arising (x) on or prior to the
date hereof or (y) out of, or relating to, actions, dealings or matters occurring on or prior to
the date hereof (including, without limitation, any actions or inactions which any of the Releasees
may have taken or omitted to take prior to the date hereof).




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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



	 	 	 	 	 
	 	NAVISITE, INC.

 	 
	 	By:  	/s/
James W. Pluntze
 	 
	 	 	Name:  	James W. Pluntze 	 
	 	 	Title:  	Chief Financial  Officer 	 



 









 






	 	 	 	 	 



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.

AMERICA’S JOB EXCHANGE, INC. (FORMERLY

KNOWN AS NAVISITE ACQUISITION SUBSIDIARY, INC.)

JUPITER HOSTING, INC.

1100 TECHNOLOGIES, INC.

NAVI ACQUISITION CORP. 

NETASPX, LLC

NETASPX ACQUISITION, INC. 
NCS
HOLDING COMPANY

NETWORK COMPUTING SERVICES, INC.




By:  /s/ James W. Pluntze                                        

       Name: James W. Pluntze

       Title: Chief Financial Officer





 









 





CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York agency, as

Administrative Agent




By :  /s/ Gerald Girardi                                        

        Name: Gerald Girardi

        Title: Canadian Imperial Bank of Commerce

                           Authorized Signatory




 









 





	 	 	 	 	 
	 	CIBC INC,

as a Lender

 	 
	 	By:  	/s/ Gerald Girardi
 	 
	 	 	Name:  	Gerald Girardi 	 
	 	 	Title:  	Authorized Signatory	 
	 	 	 	           CIBC  Inc. 	 
	 




 












 





	 	 	 	 	 
	 	CIFC FUNDING 2007-II, LTD.

CIFC FUNDING 2007-III, LTD.

CIFC FUNDING 2007-50, LTD.,

as a Lender

 	 
	 	By:  	/s/ Elizabeth Chow
 	 
	 	 	Name:  	Elizabeth Chow 	 
	 	 	Title:  	Head of Underwriting 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIGROUP GLOBAL MARKETS REALTY CORP.,

     as a Lender

 	 
	 	By:  	[ILLEGIBLE]
 	 
	 	 	Name:  	[ILLEGIBLE] 	 
	 	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CIT LENDING SERVICES CORPORATION, as

     a Lender

 	 
	 	By:  	/s/ Anthony Holland
 	 
	 	 	Name:  	Anthony Holland 	 
	 	 	Title : Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Knightsbridge CLO 2007-1, as

     a Lender

 	 
	 	By:  	/s/ Robert Hicks
 	 
	 	 	Name:  	Robert Hicks 	 
	 	 	Title:  	Portfolio Manager 	 
	 
	 	 	 
	 	By:  	/s/ Douglas Maher
 	 
	 	 	Name:  	Douglas Maher 	 
	 	 	Title:  	Portfolio Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Eton Park CLO Management 1, as

a Lender


By: Eton Park Asset Management, L.L.C. as Collateral Manager

 	 
	 	By:  	/s/ Patrick Dennis
 	 
	 	 	Name:  	Patrick Dennis 	 
	 	 	Title:  	Chief Financial Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Eton Park CLO Management 2, as

a Lender


By: Eton Park Asset Management, L.L.C. as Collateral Manager

 	 
	 	By:  	/s/ Patrick Dennis
 	 
	 	 	Name:  	Patrick  Dennis 	 
	 	 	Title:  	Chief Financial Officer