Exhibit 10.1
FIFTH AMENDMENT AND WAIVER dated as of November 19,
1999 (this "Amendment"), to the Credit Agreement, dated
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as of September 29, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit
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Agreement"), among PSINET INC., a corporation organized
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under the laws of the State of New York (the
"Borrower"), the several banks and other financial
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institutions and entities from time to time parties
thereto (the "Lenders"), THE CHASE MANHATTAN BANK, as
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administrative agent (the "Administrative Agent") for
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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
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have the meanings given to them in the Credit Agreement, as amended hereby.
2. Amendments to the Credit Agreement.
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(a) Section 1.01 of the Credit Agreement is hereby amended by
inserting the following definition in its appropriate alphabetical order:
"TNS Merger" means the merger of Transaction Network Services, Inc.
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("TNS") into a wholly-owned Subsidiary of the Borrower pursuant to the
Agreement and Plan of Merger dated August 22, 1999 among the Borrower,
PSINet Shelf I Inc. and TNS as amended by an amendment thereto dated
October 14, 1999; provided that in connection therewith (i) the
shareholders of TNS receive cash consideration not in excess of
$355,000,000 and (ii) the outstanding Indebtedness of TNS assumed by
the Borrower and the Subsidiaries does not exceed $70,000,000."
(b) Section 6.04 of the Credit Agreement is hereby amended by deleting
"and (iv)" therein and substituting the following therefor:
"(iv) the TNS Merger may be consummated and (v)"
(c) Section 6.05 of the Credit Agreement is hereby amended by deleting
"and" at the end of clause (k) thereof and inserting the following before the
period at the end of clause (l) thereof:
"; (m) so long as both before and after giving effect thereto, the
Borrower would be in pro forma compliance with the covenants set forth
in Section 6.12, the TNS Merger"
3. Waiver. The Lenders hereby expressly waive for a period of sixty days
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from the date hereof any breach of and any rights or remedies in connection with
any breach of the Credit Agreement as a result of the failure of the Loan
Parties to pledge, as required by Section 5.13 of the Credit Agreement or
otherwise, shares of capital stock or Indebtedness of Significant Subsidiaries
which were formed or which became Significant Subsidiaries on or after January
1, 1999; provided, that (i) the Loan Parties shall use their reasonable efforts
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to promptly pledge such shares of capital stock and Indebtedness to the
Collateral Agent and (ii) all such shares of capital stock and Indebtedness
required to be pledged but for this waiver are pledged to the Collateral Agent
within 60 days from the date hereof.
4. No Other Amendments or Waivers; Confirmation. Except as expressly
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amended, waived, modified and supplemented hereby, the provisions of the Credit
Agreement are and shall remain in full force and effect.
5. Representations and Warranties. The Borrower hereby represents and
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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.
6. Effectiveness. This Amendment shall become effective only upon the
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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
7. Expenses. The Borrower agrees to reimburse the Administrative Agent
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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.
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8. Governing Law; Counterparts. (a) This Amendment and the rights and
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obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(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.
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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/ Ed Postal
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Name: Ed Postal
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by
/s/ Xxxxxx Xxxxx Xxxxx
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Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
FLEET NATIONAL BANK,
individually and as Syndication Agent,
by
/s/ Xxxxxxxxx Xxxxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
individually and as Documentation Agent,
by
/s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
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