Exhibit 10.2
FIRST AMENDMENT dated as of October 27, 1998
(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
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organized 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
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shall 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:
(i) inserting after the definition of "Net Proceeds"
and before the definition of "Non Hostile Acquisition" the
following definition:
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"'1998 High Yield Notes' means the high yield notes
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issued by the Borrower in November 1998 on
substantially the terms described in the Preliminary
Offering Memorandum dated October 27, 1998, which do
not mature in whole or part, and in respect of which
no regularly scheduled amortization of principal is
required, earlier than the date which is six months
subsequent to the Maturity Date and which are in a
minimum aggregate principal amount of $200,000,000,
including the Indebtedness represented thereby and
refinancings of such Indebtedness; provided that
(i) any such refinancing Indebtedness shall not have
a greater outstanding principal amount, an earlier
maturity date, or a decreased weighted average life
than the 1998 High Yield Notes refinanced and
(ii) the proceeds of such refinancing Indebtedness
shall be used solely to repay the 1998 High Yield
Notes refinanced thereby and fees and expenses in
connection therewith";
(b) Section 5.13 of the Credit Agreement is amended by
inserting, immediately after the reference to "(a)" the following: "if
such Significant Subsidiary is not a Foreign Subsidiary,"
(c) Section 6.01 of the Credit Agreement is hereby amended
by:
(i) inserting, immediately after the reference to
"$750,000,000" in clause (B) of subsection (ix) thereof, the
following: "less the aggregate principal amount of the 1998 High
Yield Notes";
(ii) deleting the period at the end of subsection (xi)
thereof and substituting therefor "; and";
(iii) inserting the following after subsection 6.01(xi)
thereof:
"(xii) the 1998 High Yield Notes issued on terms
reasonably satisfactory to the Lenders with an aggregate
initial public offering price or purchase price not to
exceed $300,000,000; provided that the proceeds of such
1998 High Yield Notes shall be used by the Borrower to
finance the
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design, development, acquisition, construction or
improvement of real or personal property, tangible or
intangible (including, without limitation, IRUs), used or
to be used in connection with a Telecommunications
Business; provided that any proceeds not in excess of the
sum of (x) the difference between $150,000,000 and the
outstanding Revolving Exposure and (y) $50,000,000 and any
Indebtedness incurred pursuant to Section 6.01(vi)(y), can
be used for any lawful purpose."
(d) Section 6.08 of the Credit Agreement is hereby amended
by:
(i) deleting the period at the end of subsection (xv)
thereof and substituting therefor "; and";
(ii) inserting the following after subsection (x)(v):
"(xvi) the purchase of any of the Senior Notes or
1998 High Yield Notes pursuant to any offer to purchase
required to be made by the Borrower upon the occurrence of
a "Change of Control" (as defined in the Senior Note
Indenture or the indenture relating to the 1998 High Yield
Notes); provided that no such purchase shall be made
unless, immediately prior thereto, (x) all outstanding
Loans, accrued interest thereon and other amounts payable
under this Agreement have been paid in full and (y) all
outstanding Letters of Credit have been cash collateralized
in accordance with the provisions of Section 2.04(j)
(regardless of whether any demand for cash collateral has
been made thereunder)."
3. No Other Amendments; 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.
4. Representations and Warranties. The Borrower hereby
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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.
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(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
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only upon the satisfaction in full of the following conditions
precedent:
(a) The Administrative Agent shall have received
counterparts hereof, duly executed and delivered by the Borrower and
the Required Lenders; and
(b) Prior to or contemporaneously with the closing of the
issuance and sale by the Borrower of the 1998 High Yield Notes, all
outstanding Revolving Loans shall have been prepaid in full.
6. Expenses. The Borrower agrees to reimburse the
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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
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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.
(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.
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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/ Xxxxxx X. Postal
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Name: Xxxxxx X. Postal
Title: Senior Vice President
and Chief Financial Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by
/s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK,
individually and as Syndication
Agent,
by
/s/ Xxxxxx X. Head, Jr.
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Name: Xxxxxx X. Head, Jr.
Title: Senior 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
