Exhibit 10.17
Loan No. ML0743-T3
THIRD SUPPLEMENT
TO THE MASTER LOAN AGREEMENT
THIS THIRD SUPPLEMENT TO THE MASTER LOAN AGREEMENT (this "Third
Supplement"), entered into as of November 30, 2004, is between COBANK, ACB
("CoBank") and SHENANDOAH TELECOMMUNICATIONS COMPANY (the "Borrower"), and
supplements that certain Second Amended and Restated Master Loan Agreement,
dated as of even date herewith, between CoBank and the Borrower (as the same may
be amended, modified, supplemented, extended or restated from time to time, the
"MLA"). Capitalized terms used and not otherwise defined in this Third
Supplement have the meanings assigned to them in the MLA.
SECTION 1. Reducing Revolving Loan Commitment. On the terms and conditions
set forth in the MLA and this Third Supplement, CoBank agrees to make one or
more advances (collectively, the "Loan") to the Borrower during the period
beginning as of the Closing Date (as defined in Section 3 of this Third
Supplement) and ending on the Business Day immediately preceding the Maturity
Date (as defined herein in this Section) (the "Termination Date") in an
aggregate principal amount outstanding at any one time not to exceed $15,000,000
(the "Commitment"). The Commitment will be reduced from time to time as provided
in Sections 6 and 8 of this Third Supplement, and will expire at 12:00 noon
Eastern time on December 31, 2016 (the "Maturity Date"). Subject to Sections 6
and 8 of this Third Supplement, under the Commitment amounts borrowed and repaid
may be reborrowed at any time prior to and including the Termination Date.
SECTION 2. Purpose. The purposes for which advances under the Commitment
may be used are (i) to refinance existing debt and other obligations of NTC
Communications, LLC ("NTC") of approximately $8,000,000 (collectively, the
"Existing Debt") in connection with the purchase by the Borrower or one of its
wholly owned subsidiaries of all outstanding membership interests in NTC not
currently owned by the Borrower (the "NTC Acquisition"), and (ii) for general
corporate purposes of the Borrower and/or its Subsidiaries, including closing
costs and fees associated with the Loan. The Borrower agrees that the proceeds
of the Loan are to be used only for the purposes set forth in this Section 2.
SECTION 3. Availability. Subject to Section 2 of the MLA, Section 10 of
this Third Supplement and the other conditions set forth in the MLA, during the
period commencing on the date on which all conditions precedent to the Loan are
satisfied (the "Closing Date") and ending on the Termination Date, advances
under the Loan will be made as provided in the MLA; provided, however, that with
respect to any advance to be subject to a fixed rate option (Subsections 4(A)(2)
and 4(A)(3) of this Third Supplement), a request for such advance must be
received no later than 12:00 noon Eastern time three Business Days or Banking
Days (as defined in Subsection 4(A)(2) of this Third Supplement), as applicable,
prior to the day such advance is desired; and provided, further, that the
Closing Date must occur on or prior to December 31, 2004.
Third Supplement/Shenandoah Telecommunications Company
Loan No. ML0743-T3
SECTION 4. Interest.
(A) Rate Options; Etc. The Borrower agrees to pay interest on the unpaid
principal balance of the Loan in accordance with one or more of the following
interest rate options, as selected by the Borrower:
(1) Variable Rate Option. As to any portion of the unpaid principal
balance of the Loan selected by the Borrower (any such portion, and any
portion selected pursuant to Subsections 4(A)(2) and 4(A)(3) below, is
hereinafter referred to as a "Portion" of the Loan), interest will accrue
pursuant to this variable rate option at a variable annual interest rate
(the "Variable Rate") equal at all times to the rate of interest
established for the Borrower by CoBank in its sole and absolute discretion
on the first Business Day of each week. The rate of interest so
established by CoBank shall be effective from and including the first
Business Day of each week to and excluding the first Business Day of the
next week. Each change in the Variable Rate will be applicable to the
Portion of the Loan subject to this option and information about the then
current Variable Rate shall be made available to the Borrower upon
telephonic request.
(2) LIBOR Option. As to any Portion or Portions of the Loan selected
by the Borrower, interest shall accrue pursuant to this LIBOR option at a
margin (the "LIBOR Margin") equal to the percentage determined from time
to time in accordance with Subsection 4(A)(5) of this Third Supplement.
Under this option: (i) rates may be fixed for Interest Periods (as
hereinafter defined) of one, two, three, or six months, as selected by the
Borrower; (ii) amounts fixed must be in increments of $100,000 or
multiples thereof; and (iii) rates may only be fixed on a Banking Day (as
hereinafter defined) on three Banking Days' prior written notice;
provided, however, that the LIBOR option is not available with respect to
new advances during the continuance of any Event of Default. "LIBOR" means
the rate (rounded upward to the nearest sixteenth and adjusted for
reserves required on Eurocurrency Liabilities (as hereinafter defined) for
banks subject to FRB Regulation D (as hereinafter defined) or required by
any other federal law or regulation) quoted by the British Bankers
Association (the "BBA") at 11:00 a.m. London time two Banking Days before
the commencement of the Interest Period for the offering of U.S. dollar
deposits in the London interbank market for the Interest Period designated
by the Company, as published by Bloomberg or another major information
vendor listed on BBA's official website. "Banking Day" means a day on
which CoBank is open for business, dealings in U.S. dollar deposits are
being carried out in the London interbank market, and banks are open for
business in New York City and London, England. "Interest Period" means the
time period chosen by the Borrower during which the chosen fixed rate is
to apply to a Portion of the Loan, which period commences on the day a
rate fixed under this Subsection 4(A)(2) or Subsection 4(A)(3) of this
Third Supplement becomes effective. The Interest Period for Portions
accruing interest at the LIBOR option rate will end on the day in the next
calendar month or in the month that is one, two, three, or six months
thereafter which corresponds numerically with the day the Interest Period
commences; provided, however, that: (a) in the event such ending day is
not a Banking Day, such period will be extended to the
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next Banking Day unless such next Banking Day falls in the next calendar
month, in which case it will end on the preceding Banking Day; and (b) if
there is no numerically corresponding day in the month, then such period
will end on the last Banking Day in the relevant month. No Interest Period
shall extend beyond the Maturity Date. "Eurocurrency Liabilities" has the
meaning as set forth in FRB Regulation D. "FRB Regulation D" means
Regulation D as promulgated by the Board of Governors of the Federal
Reserve System, 12 CFR Part 204, as amended from time to time.
(3) Quoted Rate Option. As to any Portion or Portions of the Loan
selected by the Borrower, interest shall accrue pursuant to this quoted
rate option at a fixed annual interest rate (the "Quoted Rate") to be
quoted by CoBank in its sole and absolute discretion in each instance.
Under this option, the interest rate on such Portion or Portions of the
Loan may be fixed for such Interest Periods as may be agreeable to CoBank
in its sole and absolute discretion in each instance; provided, however,
that (i) such Interest Period shall not extend beyond the Maturity Date
and such Interest Period may only expire on a Business Day, (ii) the
minimum fixed period shall be 30 days, (iii) amounts fixed must be in
increments of $100,000 or multiples thereof, and (iv) the Quoted Rate
option is not be available with respect to new advances during the
continuance of any Event of Default.
(4) Rate Combinations. Notwithstanding the foregoing, at any one
time there may be no more than five Portions of the Loan in the aggregate
accruing interest pursuant to any fixed rate option.
(5) Applicable Margin. The LIBOR Margin will be determined based on
the Borrower's consolidated Total Leverage Ratio on the last day of each
fiscal quarter of the Borrower, as set forth in the following table:
LIBOR Margin during any period the
Borrower is using CoBank's cash
Total Leverage Ratio LIBOR Margin management services
-------------------- ------------ -------------------
Greater than 1.50:1.00 1.60% 1.50%
Greater than 1.00:1.00 and less
than or equal to 1.50:1.00 1.35% 1.25%
Less than or equal to 1.00:1.00 1.10% 1.00%
The LIBOR Margin shall be (i) increased, if warranted, beginning the
5th Business Day following CoBank's receipt of the financial statements
required pursuant to Subsections 7(I)(1) and 7(I)(2) of the MLA and the
compliance certificate required
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pursuant to Subsection 7(I)(8) of the MLA and (ii) decreased, if
warranted, beginning the 5th Business Day following CoBank's receipt of
such financial statements and compliance certificate and the Borrower's
written request to decrease such margin. In the event that (a) an Event of
Default occurs or (b) CoBank shall not receive when due such financial
statements and compliance certificate, then from such due date and until
the 5th Business Day following CoBank's receipt of such overdue financial
statements and compliance certificate (and in the event a decrease in the
LIBOR Margin is then warranted, receipt of the Borrower's written request
to decrease such margin), the LIBOR Margin shall be 1.60% (or 1.50%, if
applicable).
(6) Selection and Changes of Rates. The Borrower shall select the
rate option or options applicable to the Loan at the time it requests an
advance under the Loan. Thereafter, with respect to Portions of the Loan
accruing interest at the Variable Rate Option, the Borrower may, on any
Business Day, subject to Subsections 4(A)(2), 4(A)(3) and 4(A)(4) of this
Third Supplement, elect to have one of the fixed rate options apply to
such Portion. In addition, with respect to any Portion of the Loan
accruing interest pursuant to a fixed rate option, the Borrower may,
subject to Subsections 4(A)(2), 4(A)(3) and 4(A)(4) of this Third
Supplement, on the last day of the Interest Period for such Portion, elect
to fix the interest rate accruing on such Portion for another Interest
Period pursuant to one of the fixed rate options. From time to time the
Borrower may elect, on a Business Day prior to the expiration of the
Interest Period for any Portion of the Loan accruing interest pursuant to
a fixed rate option, and upon payment of the applicable Surcharge (as
defined in, and calculated pursuant to, Section 7 of this Third
Supplement) to convert all, but not part, of such Portion of the Loan so
that it accrues interest at the Variable Rate option or a combination of
the Variable Rate option and a fixed rate option, for a new Interest
Period or Interest Periods selected in accordance with Subsections
4(A)(2), 4(A)(3) or 4(A)(4) of this Third Supplement. Except for the
initial selection, all interest rate selections provided for herein shall
be made by electronic (if applicable), telephonic or written request of an
authorized employee of the Borrower and must be received by CoBank by
12:00 noon, Eastern time, on the relevant day. In taking actions upon
telephonic requests, CoBank shall be entitled to rely on (and shall incur
no liability to the Borrower in acting upon) any request made by a person
identifying himself or herself as one of the persons authorized by the
Borrower to select interest rates hereunder; provided, however, that in
the case of LIBOR rate loans, all such selections must be confirmed in
writing upon CoBank's request. Notwithstanding the foregoing, rates may
not be fixed in such a manner as to cause the Borrower to have to break
any fixed rate balance in order to pay any installment of principal.
(7) Accrual of Interest. Interest shall accrue pursuant to the fixed
rate options from and including the first day of the applicable Interest
Period to but excluding the last day of the Interest Period. If the
Borrower elects to refix the interest rate on any Portion of the Loan
accruing interest pursuant to one of the fixed rate options pursuant to
Subsection 4(A)(6) of this Third Supplement, the first day of the new
Interest Period shall be the last day of the preceding Interest Period. In
the absence of any such election, interest shall accrue on such Portion at
the Variable Rate Option from and including the
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last day of such Interest Period. If the Borrower elects to convert from a
fixed rate option to the Variable Rate Option pursuant to Subsection
4(A)(6) of this Third Supplement upon payment of the applicable Surcharge
as provided in Section 7 of this Third Supplement, interest at the
applicable fixed rate shall accrue through the day before such conversion
and interest at the Variable Rate Option shall accrue on the Portion of
the Loan so converted from and including the date of conversion.
(B) Payment and Calculation. The Borrower shall pay interest on the Loan
(i) monthly in arrears on the 20th day of the following month (or on such other
day in such month as CoBank shall require in a written notice to the Borrower);
provided, however, in the event the Borrower elects to fix all or a portion of
the indebtedness outstanding under the LIBOR interest rate option above, at
CoBank's option upon written notice to the Borrower, interest shall be payable
at the maturity of the Interest Period and if the LIBOR interest rate fix is for
a period longer than 3 months, interest on that Portion shall be payable
quarterly in arrears on each three-month anniversary of the commencement date of
such Interest Period, and at maturity of such Interest Period, (ii) upon any
prepayment (whether due to acceleration or otherwise) and (iii) on the Maturity
Date. Interest shall be calculated on the actual number of days the Loan, or any
part thereof, is outstanding on the basis of a year consisting of 360 days or
365 days in the case of any Portion accruing interest at the Variable Rate
Option. In calculating accrued interest, the date the Loan is made shall be
included and the date any principal amount of the Loan is repaid or prepaid
shall be excluded as to such amount.
SECTION 5. Fees.
(A) Loan Origination Fee. In consideration of the Commitment, the Borrower
agrees to pay to CoBank on the Closing Date a non-refundable origination fee in
the amount of $37,500.
(B) Commitment Fee. In consideration of the Commitment, the Borrower
agrees to pay to CoBank a commitment fee on the average daily unused portion of
the Commitment at the rate of 0.375% per annum (the rate will be 0.25% per annum
during any period the Borrower is using CoBank's cash management services),
payable quarterly in arrears by the 20th day of the month following each
calendar quarter, or such other day as CoBank may require in a written notice to
the Borrower. Such fee is payable for each quarter (or portion thereof)
occurring during the original or any extended term of the Commitment.
SECTION 6. Reductions of Commitment; Repayments of the Loan.
(A) Scheduled Reductions of the Commitment. Commencing on March 31, 2005,
and on each June 30, September 30, December 31 and March 31 occurring thereafter
through December 31, 2016, the Commitment shall be permanently reduced on each
such date (each such reduction, a "Commitment Reduction") in the amount of
$312,500 (such reductions shall be cumulative and subject to modification
pursuant to Section 8 of this Third Supplement). At the time of each Commitment
reduction provided for in this Section 6, the Borrower shall repay the Loan in
an amount sufficient to reduce the aggregate principal balance of the Loan then
outstanding to the amount of the Commitment as so reduced. If not sooner
required to be repaid,
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all advances under the Loan and all other amounts due and owing hereunder and
under the other Loan Documents relating to the Loan shall be due and payable on
the Maturity Date. All repayments made pursuant to this Section 6 shall be
applied to such portions of the Loan as the Borrower shall direct in writing or,
in the absence of such direction, as the Borrower and CoBank shall agree. At the
time of each repayment pursuant to this Section 6, the Borrower shall pay all
accrued and unpaid interest on the amount repaid, and any Surcharge due pursuant
to Section 7 of this Third Supplement in connection with such payment.
(B) Repayments from Insurance Proceeds. If an Event of Default with
respect to Section 7(J), (K) or (L) of the MLA has occurred and is continuing or
is anticipated to occur within the next twelve (12) months after taking into
account on a pro forma basis the proposed use of all Net Insurance Proceeds (as
hereinafter defined in this Subsection 6(B)) received by the Borrower during any
fiscal year in excess of $1,000,000 (and the Borrower hereby covenants to cause
such Net Insurance Proceeds to be used as so proposed), the Borrower shall repay
the Loan in an amount equal to the amount of such Net Insurance Proceeds which
are not reinvested in equipment or other assets that are used or useful in the
business of the Borrower within 180 days of receipt by the Borrower of such Net
Insurance Proceeds. All such repayments shall be applied in accordance with
Subsection 6(D) of this Third Supplement.
"Net Insurance Proceeds" means cash proceeds received by the Borrower or
any Pledged Subsidiary from any insurer under any casualty insurance policy,
business interruption policy or similar insurance policy with respect to any
loss, damage or destruction of any asset or property owned by it, net of (i) the
costs of recovery of such insurance proceeds and (ii) amounts applied to
repayment of Indebtedness (other than to CoBank) secured by a lien on the
related asset or property.
(C) Repayments from Asset Dispositions. The Borrower shall repay the Loan
within 180 days of receipt by the Borrower or any Pledged Subsidiary of Net
Proceeds (as hereinafter defined in this Subsection 6(C)) from any Asset
Disposition (as hereinafter defined in this Subsection 6(C)) in an amount equal
to such Net Proceeds, unless such Net Proceeds have been reinvested in equipment
or other assets that are used or useful in the business of the Borrower or its
Pledged Subsidiaries within such 180-day period. All such repayments shall be
applied in accordance with Subsection 6(D) of this Third Supplement.
"Asset Disposition" means the disposition, whether by sale, lease,
transfer, or otherwise (other than as a result of loss, damage or destruction),
by the Borrower, of any or all of its assets, other than (a) bona fide sales of
inventory to customers for fair value in the ordinary course of business, (b)
dispositions of obsolete equipment not used or useful in the business of the
Borrower or its Pledged Subsidiaries, (c) sales of Investments for fair value;
and (d) dispositions of assets for which the aggregate market value of assets
sold in any one transaction or series of related transactions for any calendar
year does not exceed $1,000,000 for the Borrower and its Pledged Subsidiaries.
"Net Proceeds" means cash proceeds (other than insurance proceeds)
received by the Borrower or any Pledged Subsidiary from any Asset Disposition
(including payments under
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Loan No. ML0743-T3
notes or other debt securities received in connection with any Asset
Disposition), net of (i) the costs of such sale, lease, transfer or other
disposition (including taxes attributable to such sale, lease or transfer) and
(ii) amounts applied to repayment of Indebtedness (other than to CoBank) secured
by a lien on the asset or property disposed.
(D) Application of Mandatory Repayments; Related Interest and Surcharge
Payments. All mandatory repayments made pursuant to Subsections 6(B) and 6(C) of
this Third Supplement shall be applied to the remaining Commitment Reductions in
the inverse order of their maturity (such that the Commitment may terminate
prior to the Maturity Date) and to such portions of the Loan as the Borrower
shall direct in writing or, in the absence of such direction, as the Borrower
and CoBank shall agree. At the time of each such mandatory repayment, the
Borrower shall pay all accrued and unpaid interest on the amount repaid and any
Surcharge due pursuant to Section 7 of this Third Supplement in connection with
such payment. As between mandatory repayments required pursuant to this Section
6 and Section 6 of that certain Term Supplement, dated as of June 22, 2001,
between CoBank and the Borrower (CoBank Loan No. ML0743-T2), the Borrower shall
first make mandatory repayments under this Section 6.
SECTION 7. Prepayment and Surcharge. The Borrower may, on three Business
Day's prior written notice, prepay in full or in part, in minimum amounts of
$100,000, any portion of the Loan. Notwithstanding the foregoing, the Borrower's
right to pay any portion of the Loan subject to a fixed rate option (whether
such payment is made voluntarily, as a result of an acceleration, mandatory
repayment or scheduled repayment or otherwise, including for purposes of this
Section 7 any conversion under Subsection 4(A)(6) of this Third Supplement)
shall be conditioned upon the payment of, on the date of such prepayment (or
conversion), a surcharge ("Surcharge"), determined and calculated as follows:
(A) Determine the difference between: (i) the rate estimated by CoBank on
the date the rate was originally fixed to be its cost to fund the Loan in the
manner set forth in its then current methodology; minus (ii) the rate estimated
by CoBank on the date the Surcharge is calculated to be its cost, less dealer
concessions and other issuance costs, to fund a new fixed rate loan in
accordance with its then current methodology having the same fixed rate period
and repayment characteristics as the balance being repaid. If such difference is
negative, then for purposes of the remaining calculations, such difference shall
be deemed to be zero.
(B) Divide the result determined in (A) above by the number of times
interest is payable during the year.
(C) For each interest payment period (or portion thereof) during which
interest was scheduled to accrue at the fixed rate, multiply the amount
determined in (B) above by the principal balance scheduled to have been
outstanding during such period (such that there is a calculation for each
interest payment period during which the amount repaid was scheduled to have
been outstanding at the fixed rate).
(D) Determine the present value of each calculation made under (C) above
based upon the scheduled time that interest on the amount repaid would have been
payable and a discount rate equal to the rate set forth in (A)(ii) above.
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(E) Add all of the calculations made under (D) above. The result is the
Surcharge.
SECTION 8. Voluntary Reduction of Commitment. The Borrower has the right,
from to time upon at least three Business Days' prior notice, to permanently
reduce the Commitment in increments of $1,000,000. Each reduction will be
applied to reduce pro rata the then remaining Commitment Reductions. No
Commitment reduction under this Section 8 will be permitted if, after giving
effect to such reduction and any simultaneous payment to CoBank, the aggregate
outstanding principal amount of the Loan would exceed the Commitment as so
reduced.
SECTION 9. Security. The Loan is secured by the Second Amended and
Restated Pledge Agreement, dated as of even date herewith, between the Borrower
and CoBank (as the same may be amended, modified, supplemented, extended or
restated from time to time, the "Pledge Agreement") and the Membership Interests
Pledge Agreements, each dated as of even date herewith, between the Borrower and
CoBank and Shentel Converged Services, Inc. ("Converged") and CoBank (as the
same may be amended, modified, supplemented, extended or restated from time to
time, collectively, the "LLC Pledge Agreements"), pursuant to which each of the
Borrower and Convergent has granted to CoBank a first-priority lien and security
interest in all of its now owned or hereafter acquired capital stock or other
voting securities in NTC.
SECTION 10. Additional Conditions Precedent. In addition to the conditions
precedent set forth in the MLA, CoBank's obligation to make any advance under
the Loan, including the initial advance, is subject to the satisfaction of each
of the following conditions precedent on or before the date of such advance:
(A) No Material Adverse Change. That from December 31, 2003 to the date of
such advance, there has not occurred any event which has had or could reasonably
be expected to have a Material Adverse Effect on the Borrower or any of its
subsidiaries;
(B) Closing Certificate. That CoBank receive on the date of the initial
advance a certificate, in the form of Exhibit A attached hereto, from the
President of the Borrower as to, among other things, the continuing truth and
accuracy of the representations and warranties of each of the Borrower and its
Subsidiaries under the Loan Documents to which it is a party and the
satisfaction of each of the conditions applicable to the making of the initial
advance;
(C) Consummation of NTC Acquisition. That CoBank receive evidence
satisfactory to it that the NTC Acquisition has closed on terms substantially
similar to those set forth in that certain Interest Purchase Agreement, dated as
of November 30, 2004, among Converged, NTC and the other interest holders named
therein; and
(D) Pledge of NTC Interests. That CoBank receive a first-priority,
perfected pledge, satisfactory to CoBank in all respects, of all membership
interests of the Borrower and Converged in NTC, pursuant to the LLC Pledge
Agreements.
[Signatures commence on following page.]
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IN WITNESS WHEREOF, the parties have caused this Third Supplement to be
executed by their duly authorized officers as of the date shown above.
SHENANDOAH TELECOMMUNICATIONS COMPANY
By:__________________________________
Name:_____________________________
Title:____________________________
[Signatures continue on next page.]
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Third Supplement/Shenandoah Telecommunications Company
Loan No. ML0743-T3
[Signatures continue from previous page.]
CoBANK, ACB
By:______________________________________
Xxxx X. Xxxx, Vice President
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EXHIBIT A
CLOSING CERTIFICATE -- LOAN NO. ML0743-T3
THIS CLOSING CERTIFICATE is given by ________________, President of
SHENANDOAH TELECOMMUNICATIONS COMPANY (the "Borrower"), pursuant to Section 5(C)
of that certain Master Loan Agreement, dated as of November 30, 2004 (the
"MLA"), and pursuant to Section 10(B) of that certain Third Supplement to the
MLA, dated as of November 30, 2004 (the "Third Supplement"), each between
CoBank, ACB ("CoBank") and the Borrower. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the MLA and
in the Third Supplement.
The undersigned hereby certifies as follows:
1. I am the President of the Borrower and as such possess the knowledge
and authority to certify to the matters herein set forth, and the matters herein
set forth are true and accurate to the best of my present knowledge, information
and belief after due inquiry;
2. Since December 31, 2003, no event has occurred which has had or could
have a Material Adverse Effect on any of the Borrower or its subsidiaries;
3. All representations and warranties of each of the Borrower and its
subsidiaries contained in the Loan Documents to which it is a party are true and
correct in all material respects on and as of the date hereof;
4. No Potential Default or Event of Default exists as of the date hereof
or will result from the making of the initial advance with respect to which this
Certificate is delivered; and
5. Each of the conditions specified in Section 5 of the MLA and in Section
10 of the Third Supplement required to be satisfied on or prior to the date of
the making of the initial advance under the Loan has been fulfilled as of the
date hereof.
IN WITNESS WHEREOF, I have executed this Advance Certificate as of
______________.
____________________________________________
President,
Shenandoah Telecommunications Company
