INCREMENTAL FACILITY AGREEMENT (TRANCHE E TERM LOANS) dated as of May 29, 2008 between MCC GEORGIA LLC MCC ILLINOIS LLC MCC IOWA LLC MCC MISSOURI LLC The LENDERS Party Hereto J.P. MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as Joint...
Exhibit 10.1
EXECUTION VERSION
**********************************************************
$350,000,000
(TRANCHE E TERM LOANS)
dated as of May 29, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ LLC
MCC ILLINOIS LLC
MCC IOWA LLC
MCC MISSOURI LLC
MCC ILLINOIS LLC
MCC IOWA LLC
MCC MISSOURI LLC
The LENDERS Party Hereto
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC and
WACHOVIA CAPITAL MARKETS, LLC
as Joint Bookrunners
BANC OF AMERICA SECURITIES LLC and
WACHOVIA CAPITAL MARKETS, LLC
as Joint Bookrunners
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
as Administrative Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
as Syndication Agent
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent
as Documentation Agent
**********************************************************
930065
(TRANCHE E TERM LOANS)
INCREMENTAL FACILITY AGREEMENT dated as of May 29, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ LLC, a limited
liability company duly organized and validly existing under the laws of the State of Delaware
(“MCC Iowa”); MCC ILLINOIS LLC, a limited liability company duly organized and validly
existing under the laws of the State of Delaware (“MCC Illinois”); MCC GEORGIA LLC, a
limited liability company duly organized and validly existing under the laws of the State of
Delaware (“MCC Georgia”); and MCC MISSOURI LLC, a limited liability company duly organized
and validly existing under the laws of the State of Delaware (“MCC Missouri”, and, together
with MCC Iowa, MCC Illinois and MCC Georgia, the “Borrowers”); the TRANCHE E TERM LOAN
LENDERS party hereto (including each Tranche E Term Loan Lender as defined below that becomes a
party hereto pursuant to a Lender Addendum as defined below) and JPMORGAN CHASE BANK, N.A., as
Administrative Agent for the Lenders (together with its successors in such capacity, the
“Administrative Agent”).
The Borrowers, the Lenders party thereto and the Administrative Agent are parties to an
Amendment and Restatement dated as of December 16, 2004 of the Credit Agreement dated as of July
18, 2001 (as amended, modified and supplemented and in effect from time to time, the “Amendment
and Restatement”).
Section 2.01(e) of the Amendment and Restatement contemplates that at any time and from time
to time, the Borrowers may request that one or more persons (which may include the Lenders under
and as defined in the Amendment and Restatement) offer to enter into commitments to make
Incremental Facility Loans. The Borrowers have requested that $350,000,000 of Incremental Term
Loans constituting a single Series be made available to it on the Tranche E Term Loan Effective
Date (as defined below), of which (i) $150,000,000 aggregate principal amount will constitute
Reinstating Incremental Facility Term Loans and (ii) $200,000,000 aggregate principal amount will
constitute Incremental Facility Term Loans. The Tranche E Term Loan Lenders (as defined below) are
willing to make such loans on the terms and conditions set forth below and in accordance with the
applicable provisions of the Amendment and Restatement, and accordingly, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINED TERMS
Terms defined in the Amendment and Restatement are used herein as defined therein. In
addition, the following terms have the meanings specified below:
“Lender Addendum” shall mean, with respect to any Tranche E Term Loan Lender, a
Lender Addendum substantially in the form of Schedule I hereto, dated as of the date hereof
and executed and delivered by such Tranche E Term Loan Lender as provided in Section 2.07.
“Tranche E Term Loan Commitment” shall mean, with respect to each Tranche E
Term Loan Lender, the commitment of such Lender to make Tranche E Term Loans hereunder. The
amount of each Tranche E Term Loan Lender’s Tranche E Term Loan Commitment is set forth in
the Lender Addendum executed and delivered by such Tranche E Term Loan Lender. The
aggregate original amount of the Tranche E Term Loan Commitments is $350,000,000.
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“Tranche E Term Loan Effective Date” shall mean the date on which the
conditions specified in Article IV are satisfied (or waived by the Majority Tranche E Term
Loan Lenders).
“Tranche E Term Loan” shall mean a Loan made on the Tranche E Term Loan
Effective Date pursuant to this Agreement which shall constitute a single Series of
Incremental Facility Term Loans under Section 2.01(e) of the Amendment and Restatement.
“Tranche E Term Loan Lender” shall mean (a) on the date hereof, a Lender having
Tranche E Term Loan Commitments that has executed and delivered a Lender Addendum and (b)
thereafter, the Lenders from time to time holding Tranche E Term Loan Commitments or Tranche
E Term Loans after giving effect to any assignments thereof pursuant to Section 11.06 of the
Amendment and Restatement.
“Tranche E Term Loan Maturity Date” shall mean January 3, 2016.
ARTICLE II
TRANCHE E TERM LOANS
Section 2.01. Commitments. Subject to the terms and conditions set forth herein and
in the Amendment and Restatement, each Tranche E Term Loan Lender
agrees to make Tranche E Term Loans to the Borrowers in Dollars, in an aggregate principal amount equal to such
Tranche E Term Loan Lender’s Tranche E Term Loan Commitment on the Tranche E Term Loan Effective
Date. The proceeds of the Tranche E Term Loans shall be available for the repayment of Revolving
Credit Loans (but without any reduction in the Revolving Credit Commitments), the payment of fees
and expenses related thereto and the general business purposes of the Borrowers.
Section 2.02. Termination of Commitments. Unless previously terminated, the Tranche E
Term Loan Commitments shall terminate after the Borrowing of the Tranche E Term Loans on the
Tranche E Term Loan Effective Date.
Section 2.03. Repayment of Loans. The Borrowers hereby jointly and severally
unconditionally promise to pay to the Administrative Agent for the account of the Tranche E Term
Loan Lenders the principal of the Tranche E Term Loans held by such Tranche E Term Loan Lender on
each Principal Payment Date set forth in column (A) below, by an amount equal to the percentage of
the aggregate principal amount of the Tranche E Term Loans borrowed on the Tranche E Term Loan
Effective Date set forth in column (B) below:
| (A) | (B) | |||
| Principal Payment Date | Percentage Reduction | |||
September 30, 2008
|
0.250 | % | ||
December 31, 2008
|
0.250 | % | ||
March 31, 2009
|
0.250 | % | ||
June 30, 2009
|
0.250 | % | ||
September 30, 2009
|
0.250 | % | ||
December 31, 2009
|
0.250 | % | ||
March 31, 2010
|
0.250 | % | ||
June 30, 2010
|
0.250 | % | ||
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| (A) | (B) | |||
| Principal Payment Date | Percentage Reduction | |||
September 30, 2010
|
0.250 | % | ||
December 31, 2010
|
0.250 | % | ||
March 31, 2011
|
0.250 | % | ||
June 30, 2011
|
0.250 | % | ||
September 30, 2011
|
0.250 | % | ||
December 31, 2011
|
0.250 | % | ||
March 31, 2012
|
0.2500/a | |||
June 30, 2012
|
0.250 | % | ||
September 30, 2012
|
0.250 | % | ||
December 31, 2012
|
0.250 | % | ||
March 31, 2013
|
0.250 | % | ||
June 30, 2013
|
0.250 | % | ||
September 30, 2013
|
0.250 | % | ||
December 31, 2013
|
0.250 | % | ||
March 31, 2014
|
0.250 | % | ||
June 30, 2014
|
0.250 | % | ||
September 30, 2014
|
0.250 | % | ||
December 31, 2014
|
0.250 | % | ||
March 31, 2015
|
0.250 | % | ||
June 30, 2015
|
0.250 | % | ||
September 30, 2015
|
0.250 | % | ||
December 31, 2015
|
0.250 | % | ||
January 3, 2016
|
92.500 | % | ||
To the extent not previously paid, all Tranche E Term Loans shall be due and payable on the
Tranche E Term Loan Maturity Date.
Section 2.04. Applicable Margin. The Applicable Margin for Tranche E Term Loans that
are Eurodollar Loans shall be 3.50% and the Applicable Margin for Tranche E Term Loans that are
Base Rate Loans shall be 2.50%.
Section 2.05. Eurodollar Rate and Base Rate Floor. Solely with respect to Tranche E
Term Loans, until the fourth anniversary of the Tranche E Term Loan Effective Date, the Base Rate
and the Eurodollar Rate shall be as follows (in lieu of the definitions otherwise applicable under
the Amendment and Restatement):
“Base Rate” shall mean the higher of (x) for any day, a rate per annum equal to the
higher of (a) the Federal funds Rate for such day plus 1/2 of 1% and (b) the Prime Rate for such
day and (y) 4.00%. Each change in any interest rate provided for in the Amendment and Restatement
based upon the Base Rate resulting from a change in the Base Rate shall take effect at the time of
such change in the Base Rate.
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“Eurodollar Rate” shall mean the higher of (x) for any Eurodollar Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined by the Administrative Agent to be equal to the Eurodollar Base Rate for such Loan for such
Interest Period divided by 1 minus the Reserve Requirement (if any) for such Loan for such Interest
Period and (y) 3.00%.
Section 2.06. Prepayment Premium. Any optional prepayment of Tranche E Term Loans
effected on or prior to the first anniversary of the Tranche E Term Loan Effective Date with the
proceeds of a substantially concurrent borrowing of Incremental Facility Term Loans (including, for
the avoidance of doubt, Reinstating Incremental Facility Term Loans) shall be accompanied by a
prepayment fee equal to 1.00% of the aggregate amount of such prepayment in the event that the
Applicable Margin in respect of such Incremental Facility Term Loans is less than the corresponding
Applicable Margin in respect of the Tranche E Term Loans.
Section 2.07. Delivery of Lender Addenda. Each Tranche E Term Loan Lender shall
become a party to this Agreement by delivering to the Administrative Agent a Lender Addendum duly
executed by such Tranche E Term Loan Lender, the Borrowers and the Administrative Agent.
Section 2.08. Status of Agreement. The Tranche E Term Loan Commitments of the Tranche
E Term Lenders constitute Incremental Term Loan Commitments of which (i) $150,000,000 of the
Tranche E Term Loan Commitments constitute Reinstating Incremental Facility Term Loan Commitments
and (ii) $200,000,000 of the Tranche E Term Loan Commitments constitute full utilization of the
$200,000,000 of Incremental Term Loans currently available under Section 2.01(e)(iii) of the
Amendment and Restatement. In addition, the Tranche E Term Loan Lenders constitute Incremental
Facility Term Loan Lenders and the Tranche E Term Loans constitute a single Series of Incremental
Facility Term Loans under Section 2.01(e) of the Amendment and Restatement.
Section 2.09. Upfront Fee. Borrowers, jointly and severally, agree to pay on the
Tranche E Term Loan Effective Date to each Tranche E Term Lender party to this Agreement on the
Tranche E Term Loan Effective Date, as fee compensation for the funding of such Tranche E Term
Lender’s Tranche E Term Loan, an upfront fee (the “Upfront Fee”) in an amount equal to 2.0%
of the stated principal amount of such Tranche E Term Lender’s Tranche E Term Loan, payable to such
Tranche E Term Lender from the proceeds of its Tranche E Term Loans as and when funded on the
Tranche E Term Loan Effective Date. Such Upfront Fee will be in all respects fully earned, due and
payable on the Tranche E Term Loan Effective Date and non-refundable and non-creditable thereafter.
ARTICLE III
REPRESENTATION AND WARRANTIES; NO DEFAULTS
The Borrowers represent and warrant to the Administrative Agent and the Lenders that (i) each
of the representations and warranties made by the Borrowers in Section 7 of the Amendment and
Restatement, and by each Obligor in the other Loan Documents to which it is a party, is true and
complete on and as of the date hereof with the same force and effect as if made on and as of the
date hereof (or, if any such representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date) and as if each reference therein to the Amendment and
Restatement or Loan Documents included reference to this Agreement and (ii) no Default has occurred
and is continuing.
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ARTICLE IV
CONDITIONS
The obligations of the Tranche E Term Loan Lenders to make Tranche E Term Loans on the Tranche
E Term Loan Effective Date are subject to the conditions precedent that each of the following
conditions shall have been satisfied (or waived by the Majority Tranche E Term Loan Lenders):
(a) Counterparts of Agreement. The Administrative Agent shall have received
duly executed and delivered counterparts (or written evidence thereof satisfactory to the
Administrative Agent, which may include telecopy transmission of, as applicable, a signed
signature page or Lender Addendum) of (i) this Agreement from each Obligor and (ii) Lender
Addenda from the Tranche E Term Loan Lenders for aggregate Tranche E Term Loan Commitments
in an amount equal to $350,000,000.
(b) Opinion of Counsel to Obligors. The Administrative Agent shall have
received an opinion, dated the Tranche E Term Loan Effective Date, of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, counsel to the Obligors, covering such matters as the Administrative Agent or
any Tranche E Term Loan Lender may reasonably request (and the Borrowers hereby instruct
counsel to deliver such opinion to the Tranche E Term Loan Lenders and the Administrative
Agent).
(c) Organizational Documents. Such organizational documents (including,
without limitation, board of director and shareholder resolutions, member approvals and
evidence of incumbency, including specimen signatures, of officers of each Obligor) with
respect to the execution, delivery and performance of this Agreement and each other document
to be delivered by such Obligor from time to time in connection herewith and the extensions
of credit hereunder as the Administrative Agent way reasonably request (and the
Administrative Agent and each Lender may conclusively rely on such certificate until it
receives notice in writing from such Obligor to the contrary).
(d) Officer’s Certificate. A certificate of a Senior Officer, dated the
Tranche E Term Loan Effective Date, to the effect that (i) the representations and
warranties made by the Borrowers in Article III hereof, and by each Obligor in the other
Loan Documents to which it is a party, are true and complete on and as of the date hereof
with the same force and effect as if made on and as of such date (or, if any such
representation and warranty is expressly stated to have been made as of a specific date, as
of such specific date) and (ii) no Default shall have occurred and be continuing.
(e) Fees and Expenses. The Administrative Agent, and JPMorgan Securities Inc.
and Banc of America Securities LLC as the Joint Lead Arrangers, and JPMorgan Securities
Inc., Banc of America Securities LLC and Wachovia Capital Markets, LLC as the Joint
Bookrunners, shall have received all fees and other amounts due and payable on or prior to
the Tranche E Term Loan Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers
hereunder.
(f) Other Documents. Such other documents as the Administrative Agent or any
Tranche E Term Loan Lender or special New York counsel to JPMCB may reasonably request.
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ARTICLE V
MISCELLANEOUS
Section 5.01. Expenses. Subject to the provisions of the Engagement Letter dated as
of May 17, 2008 among Mediacom Broadband LLC, ▇.▇. ▇▇▇▇▇▇ Securities Inc., Banc of America
Securities LLC and Wachovia Capital Markets, LLC, the Obligors jointly and severally agree to pay,
or reimburse JPMorgan Securities Inc., Banc of America Securities LLC and Wachovia Capital Markets,
LLC for paying, all reasonable out-of-pocket expenses incurred by JPMorgan Securities Inc., Banc of
America Securities LLC and Wachovia Capital Markets, LLC and their Affiliates, including the
reasonable fees, charges and disbursements of special New York counsel to JPMCB, in connection with
the syndication of the Incremental Facility Loans provided for herein and the preparation of this
Agreement.
Section 5.02. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement shall become effective when this Agreement shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received counterparts hereof
and thereof which, when taken together, bear the signatures of each of the other parties hereto and
thereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
Section 5.03. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
Section 5.04. Headings. Article and Section headings used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the day and year first above written.
| MCC GEORGIA LLC MCC ILLINOIS LLC MCC IOWA LLC MCC MISSOURI LLC |
||||
| By | Mediacom Broadband LLC, a Member | |||
| By | Mediacom Communications Corporation, a Member |
|||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Chief Financial Officer |
||||
| c/o Mediacom Communications Corporation ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ |
||||
| Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||
[Incremental Facility Agreement Signature Page]
| JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: ▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President |
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| Address for Notices to JPMorgan Chase Bank, N.A., as Administrative Agent: |
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| JPMorgan Chase Bank, N.A. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Loan and Agency Services Group |
||||
| Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇ Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇ |
||||
[Incremental Facility Agreement Signature Page]
By its signature below, the undersigned hereby consents to the foregoing Incremental Facility
Agreement and confirms that the Tranche E Term Loans shall constitute “Guaranteed Obligations”
under the Guarantee and Pledge Agreement under and as defined in said Amendment and Restatement for
all purposes of said Guarantee and Pledge Agreement and shall be entitled to the benefits of the
guarantee and security provided under the Guarantee and Pledge Agreement.
| MEDIACOM BROADBAND LLC By Mediacom Communications Corporation, a |
||||
| Member | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Chief Financial Officer |
||||
[Incremental Facility Agreement Signature Page]
By its signature below, the undersigned hereby confirms that all of its obligations under the
Management Fee Subordination Agreement and Sections 5.04 and 5.05 of the Guarantee and Pledge
Agreement shall continue unchanged and in full force and effect for the benefit of the
Administrative Agent, the Lenders party to the Amendment and Restatement and the Tranche E Term
Loan Lenders.
| MEDIACOM COMMUNICATIONS CORPORATION | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Chief Financial Officer |
||||
[Incremental Facility Agreement Signature Page]
Schedule I
[Form of Lender Addendum]
LENDER ADDENDUM
Reference is made to the Incremental Facility Agreement dated as of May 29, 2008 (the
“Incremental Facility Agreement”) between MCC IOWA LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware (“MCC Iowa”); MCC
ILLINOIS LLC, a limited liability company duly organized and validly existing under the laws of the
State of Delaware (“MCC Illinois”); MCC GEORGIA LLC, a limited liability company duly
organized and validly existing under the laws of the State of Delaware (“MCC Georgia”); and
MCC MISSOURI LLC, a limited liability company duly organized and validly existing under the laws of
the State of Delaware (“MCC Missouri”, and, together with MCC Iowa, MCC Illinois and MCC
Georgia, the “Borrowers”); the TRANCHE E TERM LOAN LENDERS named therein (the “Tranche
E Term Loan Lenders”); and JPMORGAN CHASE BANK, N.A., as Administrative Agent (the
“Administrative Agent”), which Incremental Facility Agreement is being entered into
pursuant to Section 2.01(e) of the Amendment and Restatement (as amended, modified and supplemented
and in effect from time to time, the “Amendment and Restatement”) dated as of December 16,
2004 of the Credit Agreement dated as of July 18, 2001 among the Borrowers, the Lenders party
thereto and the Administrative Agent. Terms used but not defined in this Lender Addendum have the
meanings assigned to such terms in the Incremental Facility Agreement and the Amendment and
Restatement.
By its signature below, and subject to the acceptance hereof by the Borrowers and the
Administrative Agent as provided below, the undersigned hereby becomes a Tranche E Term Loan Lender
under the Incremental Facility Agreement, having the Tranche E Term Loan Commitment, set forth
below opposite its name.
This Lender Addendum shall be governed by, and construed in accordance with, the law of the
State of New York.
This Lender Addendum may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract.
I-1
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed
and delivered by their proper and duly authorized officers as of this
_____
day of
_____
, 2008.
| Amount of | ||||
| Tranche E Term Loan Commitment: | [Name of Tranche E Term Loan Lender] | |||
$
|
By: | |||
| Name: Title: |
||||
[DO NOT COMPLETE UNTIL FINAL COMMITMENT ALLOCATIONS HAVE BEEN DETERMINED.]
I-2
Accepted and agreed:
| JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||
By: |
||||
| Name: Title: |
||||
| MCC GEORGIA LLC MCC ILLINOIS LLC MCC IOWA LLC MCC MISSOURI LLC |
||||
By
|
Mediacom Broadband LLC, a Member |
|||
By
|
Mediacom Communications Corporation, a Member |
|||
By: |
||||
| Name: Title: |
||||
I-3