Exhibit 10.2
SIXTH AMENDMENT dated as of November 23, 1999
(this "Amendment"), to the Credit Agreement, dated as
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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 shall
have the meanings given to them in the Credit Agreement, as amended hereby.
2. Amendments to the Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by:
(i) inserting the following definition in its appropriate
alphabetical order:
"`Additional High Yield Notes' means high yield notes issued by the
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Borrower in a single issuance prior to January 31, 2000 on terms
(other than pricing terms) which, taken as a whole, are no less
favorable to the Lenders than the terms of the 1998 High Yield Notes
and 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,
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 Additional High Yield Notes refinanced and (ii)
the proceeds of such refinancing Indebtedness shall be used solely to
repay the Additional High Yield Notes refinanced thereby and fees and
expenses in connection therewith";
(b) Section 6.01 of the Credit Agreement is hereby amended by:
(i) deleting the period at the end of subsection (xii)
thereof and substituting therefor "; and";
(ii) inserting the following after subsection 6.01(xii)
thereof:
"(xiii) the Additional High Yield Notes with an aggregate initial
public offering price or purchase price not to exceed $1,550,000,000
(or the equivalent thereof on the date of issuance in any foreign
currency); provided that the proceeds of such Additional High Yield
Notes shall be used by the Borrower to finance the 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."
(c) Section 6.08 of the Credit Agreement is hereby amended by:
(i) deleting the period at the end of subsection (xvi) thereof
and substituting therefor "; and";
(ii) inserting the following after subsection (xvi):
"(xvii) the purchase of any of the Additional 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
indenture or indentures relating to the Additional 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)."
(d) Section 6.12 of the Credit Agreement is hereby amended by
deleting "$100,000,000" from clause (c) thereof and substituting "$125,000,000"
therefor.
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3. No Other Amendments; Confirmation. Except as expressly amended,
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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
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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.
5. Effectiveness. This Amendment shall become effective only upon the
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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) The Borrower shall have paid to the Administrative Agent on
behalf of each Lender that duly executes and delivers a counterpart hereof on or
prior to November 23, 1999 a fee equal to 0.125 percent of the aggregate amount
of the outstanding Loans and Commitments of such Lender under the Credit
Agreement.
6. 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 & ▇▇▇▇▇, counsel
for the Administrative Agent.
7. 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: VP and Controller
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK,
individually and as Syndication Agent,
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
individually and as Documentation Agent,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BANK BOSTON,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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