EXHIBIT 10.1
CONFORMED COPY
THIRD AMENDMENT dated as of June 30, 1999 (this "Amendment"),
to the Credit Agreement, dated as of September 29, 1998 (as
amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among PSINET INC., a corporation
organized under the laws of the State of New York (the
"Borrower"), the several banks and other financial
institutions and entities from time to time parties thereto
(the "Lenders"), THE CHASE MANHATTAN BANK, as administrative
agent (the "Administrative Agent") for the Lenders, Fleet
National Bank, as syndication agent for the Lenders, and The
Bank of New York as documentation agent for the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain loans to the Borrower; and
WHEREAS the Borrower has requested that certain provisions of the
Credit Agreement be modified in the manner provided for in this Amendment, and
the Lenders are willing to agree to such modifications as provided for in this
Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
have the meanings given to them in the Credit Agreement, as amended hereby.
2. Amendments to the Credit Agreement.
(a) Section 6.01 of the Credit Agreement is hereby amended by
deleting clause (ix) thereof in its entirety and substituting the following
therefor:
(ix) Indebtedness permitted by Section 10.08(b)(iii) of the
Senior Note Indenture, in an aggregate principal amount not to exceed
the lesser of (x) the product of (A) two and (B) the net cash proceeds
received by the Borrower since the date of such indenture from sales of
its capital stock in public offerings or to strategic investors and (y)
$1,100,000,000 less the aggregate principal amount of the 1998 High
Yield Notes;
(b) The table in Section 6.12(d) of the Credit Agreement is
hereby deleted in its entirety and the following substituted therefor:
Date Consolidated EBITDA
---- -------------------
December 31, 1998 $(45,000,000)
March 31, 1999 $(40,000,000)
June 30, 1999 $(31,000,000)
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September 30, 1999 $(15,000,000)
December 31, 1999 $0
March 31, 2000 $15,000,000
June 30, 2000 $25,000,000
September 30, 2000 $40,000,000
December 31, 2000 and thereafter $50,000,000
3. No Other Amendments; Confirmation. Except as expressly amended,
waived, modified and supplemented hereby, the provisions of the Credit Agreement
are and shall remain in full force and effect.
4. Representations and Warranties. The Borrower hereby represents and
warrants to the Administrative Agent and the Lenders as of the date hereof as
follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any person (including any governmental
agency) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligation of
the Borrower, enforceable against it in accordance with its terms, subject only
to the operation of the Bankruptcy Code and other similar statutes for the
benefit of debtors generally and to the application of general equitable
principles.
(c) All representations and warranties of the Borrower
contained in the Credit Agreement (other than representations or warranties
expressly made only on and as of the Effective Date) are true and correct as of
the date hereof.
5. Effectiveness. This Amendment shall become effective only upon the
satisfaction in full of the following conditions precedent: The Administrative
Agent shall have received counterparts hereof, duly executed and delivered by
the Borrower and the Required Lenders; and
6. Expenses. The Borrower agrees to reimburse the Administrative Agent
for its out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Administrative Agent.
7. Governing Law, Counterparts. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
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(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
PSINET INC.
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President and Treasurer
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THE CHASE MANHATTAN BANK, individually and as
Administrative Agent,
By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
FLEET NATIONAL BANK,
individually and as Syndication Agent,
By: /s/Xxxxxx X. Head, Jr.
Name: Xxxxxx X. Head, Jr.
Title: Senior Vice President
THE BANK OF NEW YORK,
individually and as Documentation Agent,
By: /s/Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANKBOSTON, N.A.,
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx D. Rainie
Title: Managing Director
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