exv10w2



 





Exhibit 10.2




WAIVER NO. 2




          WAIVER NO. 2 (this “Waiver”), dated as of November 2, 2007, under that certain Amended
and Restated Credit Agreement, dated as of September 12, 2007 (the “Credit Agreement”;
capitalized terms used herein and not defined herein shall have the meaning set forth in the Credit
Agreement), among NAVISITE, INC., a Delaware corporation (“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.




W
I T N E S S E
T H:




          WHEREAS, Section 5.01(a) of the Credit Agreement requires the delivery to the Administrative
Agent and each Lender, of the items listed in clauses (i) through (iii) thereto (“Required
Items”) within 95 days (or such earlier date on which Borrower is required to file a Form 10-K)
after the end of the fiscal year ending July 31, 2007 (“Deadline”);




          WHEREAS, Borrower announced a restatement of its consolidated statement of cash flows for the
fiscal year ended July 31, 2006 and the condensed consolidated statement of cash flows for the nine
months ended April 30, 2006;




          WHEREAS, on October 29, 2007, Borrower’s independent registered public accounting firm, KPMG
LLP, advised Borrower that it has not completed its audit procedures relating to the restatement
and has advised Borrower that it needs additional time and information to complete its audit
procedures;




          WHEREAS, Borrower’s Form 10-K will not be filed within the prescribed period as the audit
procedures relating to the announced restatement have not been completed.




          WHEREAS, Borrower will fail to deliver the Required Items by the Deadline and to provide
written notice of such Default to the Administrative Agent and each Lender pursuant to Section
5.02(a);




          WHEREAS, Borrower has requested that the Lenders waive the Defaults arising out of the failure
to deliver the Required Items by the Deadline;




          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 Administrative Agent and the Required Lenders have considered and are willing to
agree to the waiver, but only upon the terms and conditions set forth in this Waiver; and




          NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:




          SECTION ONE. Waiver and Acknowledgment. (a) The Lenders hereby waive the Default
arising out of (i) Borrower’s failure to comply with Section 5.01(a), (d) and (e) of the Credit
Agreement with respect to the fiscal year ended July 31, 2007 and (ii) any failure of Borrower to
provide the related notification required by Section 5.02(a) with respect thereto, in each case to
the extent any Default or Event of Default will arise therefrom; provided, however,
such waiver shall only be effective until November 19, 2007. If any Default described in subclause
(a)(i) exists on November 19, 2007, such Default shall been deemed to have existed continuously
from November 8, 2007.




          (b) The Lenders hereby acknowledge and agree that the adjustments to the financial statements
of the Borrower described in Borrower’s Form 8-K filed with the Securities and Exchange Commission
on October 26, 2007, and the draft Form 8-K/A attached hereto as Annex A, do not result in a breach
of Section 3.04 of the Credit Agreement or any Default under Section 8.01(c) of the Credit
Agreement.




          SECTION TWO. Conditions to Effectiveness. This Waiver shall become effective as of
the date (the “Effective Date”) when (x) the Administrative Agent shall have received
counterparts of this Waiver executed by Borrower and the Administrative Agent and (y) the
Administrative Agent shall have received executed consents to this Waiver from the Required
Lenders.




          SECTION THREE. Representations and Warranties. The Loan Parties hereby represent and
warrant that, as of the date hereof (assuming effectiveness of this Waiver) and as of the Effective
Date, the conditions set forth in Sections 4.02(b) and 4.02(c) of the Credit Agreement are
satisfied.




          SECTION FOUR. Reference to and Effect on the Credit Agreement. Except as expressly
set forth in this Waiver, each provision of the Loan Documents shall be in full force and effect
and this Waiver shall not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or any Agent under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.




          SECTION FIVE. Costs and Expenses. Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the preparation, execution and delivery of
this Waiver and the other instruments and documents to be delivered hereunder, if any.




          SECTION SIX. Execution in Counterparts. This Waiver may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which




 









 







when so executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement. Delivery of an executed counterpart of a signature page
to this Waiver by telecopier shall be effective as delivery of a manually executed counterpart of
this Waiver.




          SECTION SEVEN. Governing Law. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




 









 








          IN WITNESS WHEREOF. the parties hereto have caused this Waiver to be duly executed and
delivered as of the day and year first above written.




	 	 	 	 	 
	 	NAVISITE, INC.,

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



	 	 	 	 	 
	 	AVASTA, INC.

CLEARBLUE TECHNOLOGIES MANAGEMENT, INC. 

CLEARBLUE TECHNOLOGIES/CHICAGO-WELLS, INC. 

CLEARBLUE TECHNOLOGIES/LAS VEGAS, INC. 

CLEARBLUE TECHNOLOGIES/LOS ANGELES, INC. 

CLEARBLUE TECHNOLOGIES/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/ Jim Pluntze
 	 
	 	 	Name:  	Jim Pluntze	 
	 	 	Title:  	CFO 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CANADIAN IMPERIAL BANK OF COMMERCE,

acting through its New York agency, as Administrative

Agent

 	 
	 	By:  	/s/ E. Lindsay Gordon
 	 
	 	 	Name:  	E. Lindsay Gordon 	 
	 	 	Title:  	Canadian Imperial Bank of Commerce
Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	[Deutsche
Bank Trust Company Americas],

 	 
	 	By:  	/s/ Anthony Casciano
 	 
	 	 	Name:  	Anthony Casciano 	 
	 	 	Title:  	Managing Director 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CIBC INC,

as a Lender

 	 
	 	By:  	/s/ Gerald Girardi
 	 
	 	 	Name:  	Gerald Girardi 	 
	 	 	Title:  	Authorized Signatory

      CIBC Inc. 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	 	LENDER:
	 
	 	 	 	 
	 	 	CoLTS 2007-1 Ltd.
	 
	 	 	 	 
	 	 	By: Structured Asset
Investors, LLC, as Collateral Manager
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Glenn F. Edwards
	 

	 	 	 	 
	 

	 	Name:
	 	Glenn F. Edwards
	 

	 	Title:
	 	Managing Director
	 
	 	 	 	 
	 	 	CoLTS 2005-2 Ltd.
	 
	 	 	 	 
	 	 	By: Structured Asset Investors, LLC as Collateral Manager
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Glenn F. Edwards
	 

	 	 	 	 
	 

	 	Name:
	 	Glenn F. Edwards
	 

	 	Title:
	 	Managing Director






 









 






	 	 	 	 	 
	 	Cratos CLO I Ltd.,

as a Lender

 	 
	 	By:  	/s/ Ronald J. Banks
 	 
	 	 	Name:  	Ronald J. Banks 	 
	 	 	Title:  	Director
- Portfolio Manager 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CIT Lending Services Corporation,

as a Lender

 	 
	 	By:  	/s/ Scott P. Ploshay
 	 
	 	 	Name:  	Scott P. Ploshay 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	Emporia Preferred Funding III, Ltd.


By: Emporia Capital Management, LLC,

as a Lender

 	 
	 	By:  	/s/ Steven Alexander
 	 
	 	 	Name:  Steven Alexander	 
	 	 	Title:  Director	

 	 
	 
	 	 	 
	 	By:  	/s/ Peter Burton
 	 
	 	 	Name:  Peter Burton 	 	 
	 	 	Title:  Vice President 	 	 
	 



	 	 	 	 	 
	 	Emporia Preferred Funding IV, Ltd.


By: Emporia Capital Management, LLC,

as a Lender

 	 
	 	By:  	/s/ Steven Alexander
 	 
	 	 	Name:  	Steven Alexander 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	/s/ Peter Burton
 	 
	 	 	Name:  	Peter Burton 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	NAVIGATOR CDO 2007-1 LTD.



By: Bank of America, N.A., Its Attorney-In-Fact

 	 
	 	By:  	/s/ Mohit Ramani
 	 
	 	 	Name:  	Mohit Ramani 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	[ILLEGIBLE] 

as a Lender

 	 
	 	By:  	/s/
[ILLEGIBLE]
 	 
	 	 	Name:  	[ILLEGIBLE] 	 
	 	 	Title:  	Managing Director