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HomeMy WebLinkAbout944933 l' After recording, return to: Ann M. Battle Sutherland 999 Peachtree St., NE Atlanta, GA 30309 (404) 853-8054 RECEIVED 1/28/2009 at 3:18 PM RECEIVING # 944933 BOOK: 713 PAGE: 866 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY ûOû866 -------------------------------- ----------------------------------~--------- 1 J¡ REAL ESTATE MORTGAGE AND SECURITY AGREEMENT Made By and Among ~l UNION TELEPHONE COMPANY P.O. Box 160 850 North Highway 414 Mountain view, Wyoming 82939 as Mortgagor and CoBANK, ACB 5500 South Quebec Street Greenwood V illage, CO 80111 as Administrative Agent Dated as of October 29,2008 A POWER OF SALE HAS BEEN GRANTED IN THIS REAL ESTATE MORTGAGE AND SECURITY AGREEMENT. A POWER OF SALE MAY ALLOW THE ADMINISTRATIVE AGENT, AS MORTGAGEE, TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS MORTGAGE. THIS INSTRUMENT CONSTITUTES A MORTGAGE AND SECURITY AGREEMENT COVERING BOTH REAL AND PERSONAL PROPERTY OF A TRANSMITTING UTILITY AND IS TO BE CROSS INDEXED IN ALL INDICES IN WHICH ARE RECORDED LIENS, MORTGAGES, OR OTHER ENCUMBRANCES AGAINST REAL AND PERSONAL 8159226.1 PROPERTY. 00ü86';' PURSUANT TO ARTICLE II, THIS INSTRUMENT CONSTITUTES A LIEN ON ALL AFTER ACQUIRED PROPERTY OF THE MORTGAGOR. THIS INSTRUMENT CONTAINS FUTURE ADVANCE PROVISIONS. 8159226.1 00&868 This REAL ESTATE MORTGAGE AND SECURITY AGREEMENT, dated as of October 29, 2008 (hereinafter called this "Mortgage") is made between UNION TELEPHONE COMPANY (hereinafter called the "Mortgagor"), a corporation existing under the laws of the State of Wyoming, and CoBANK, ACB (individually "CoBank"), a federally chartered instrumentality of the United States, in its capacity as Administrative Agent (as hereinafter defined) on behalf of the Secured Parties under the Credit Agreement (as such terms are hereinafter defined). ARTICLE I. DEFINITIONS Section 1.01. Definitions. In addition to the terms defined elsewhere in this Mortgage, the following terms shall have the meanings specified in this Section 1.01, unless the context clearly requires otherwise. The terms defined herein include the plural as well as the singular. Accounting terms used in this Mortgage but not otherwise defined herein shall have the meanings they have under GAAP. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement (as hereinafter defined). Administrative Agent shall mean CoBank in its capacity as Administrative Agent under the Loan Documents, together with its successors and assigns from time to time, if any. Credit Agreement shall mean that certain Credit Agreement, dated as of October 29, 2008, among (i) the Mortgagor, (ii) each of the Subsidiaries of the Mortgagor that is or becomes a guarantor of the Obligations (individually, a "Guarantor" and, collectively, the "Guarantors"; together with the Mortgagor, individually, a "Loan Party" and, collectively, the "Loan Parties"), (iii) the Administrative Agent, and (iv) the Lenders party thereto from time to time, as amended, modified, supplemented, extended or restated from time to time. Environmental Law shall mean any federal, state or local laws, statute, ordinance, rule, regulation, administration order, or permit now in effect or hereinafter enacted, pertaining to the public health, safety, industrial hygiene, or the environmental conditions on, under or about the Mortgaged Property. Event of Default shall have the meaning specified in Section 4.01. Excepted Property shall mean the property, if any, identified in Appendix "B" hereto. GAAP shall mean generally accepted accounting principles as established by the American Institute of Certified Public Accountants. Hazardous Materials shall mean dangerous, toxic, or hazardous pollutants, contaminants, chemicals, wastes, materials or substances, as defined in or governed by the provisions of any Environmental Law. 8159226.1 Lender shall mean each lender from time to time party to the Credit Agreement. úOÔì869 Lien shall mean any statutory or common law consensual or non-consensual mortgage, pledge, grant, security title or interest, lien, encumbrance or charge of any kind against property, including, without limitation, any conditional sale or other title retention transaction, any lease transaction in the nature of a security interest and any security interest under the Unifonn Commercial Code. Loan Documents shall mean the Credit Agreement, the Notes, the Security Documents (including, without limitation, this Mortgage, any other mortgage, any deed to secure debt, or any other instrument conveying an interest in real and/or personal property to the Administrative Agent for the benefit of the Secured Parties) and all other instruments, documents and agreements executed and delivered concurrently with the Credit Agreement or at any time thereafter to or for the benefit of the Administrative Agent or the Secured Parties in connection with the Loans and other transactions contemplated by the Credit Agreement, all as amended, modified, supplemented, extended or restated from time to time. Maximum Debt Limit, if any, shall mean $170,000,000. Mortgage shall mean this Real Estate Mortgage and Security Agreement, as it may be amended or supplemented from time to time. Mortgaged Property shall have the meaning specified in Section 2.01. Mortgagor Location shall mean the debtor's location as defined in the Unifonn Commercial Code. For example, for a corporation, it is the state of incorporation; for a limited liability company, it is the state of fonnation; and for a limited partnership, it is the state of registration. Obligations shall mean the payment and perfonnance of all liabilities, obligations and indebtedness of the Mortgagor or any other Loan Party under the Loan Documents from time to time owed to the Administrative Agent or any Secured Party, of every type and description, whether now existing or hereafter arising, fixed or contingent, as primary obligor or as guarantor or surety, acquired directly or by assignment or otherwise, liquidated or unliquidated, regardless of how they arise or by what agreement or instrument they may be evidenced, including, without limitation, all Obligations (as defined in the Credit Agreement), all Secured Obligations (as defined in the' Pledge and Security Agreement), all obligations under any Related Interest Rate Agreement to which a Lender or an affiliate of a Lender is a party, all loans, future advances, future obligations and other extensions of credit made to or for the account of the Mortgagor or any other Loan Party and all covenants, agreements and obligations of the Mortgagor or any other Loan Party contained in this Mortgage and in all other Loan Documents, due or payable in any combination thereof whether before or after the filing of a proceeding under the Bankruptcy Code (whether or not allowed in such proceeding) by or against any Loan Party or any of their respective Subsidiaries. 8159226.1 Permitted Encumbrances shall mean: (;,00870 (i) as to the property specifically described in Granting Clause I, the restrictions, exceptions, reservations, conditions, limitations, interests and other matters which are set forth or referred to in the legal descriptions of such property set forth in or attached to Appendix "A" hereto; and (ii) as to all Mortgaged Property, any Lien constituting a "Permitted Encumbrance" under Section 10.1 of the Credit Agreement. Potential Default shall mean the occurrence of any event which with the giving of notice and/or the passage of time and/or the occurrence of any other condition would ripen into an Event of Default. Secured Parties shall mean, collectively, the Administrative Agent, the Lenders and any Lender or Affiliate of any Lender in its capacity as a counterparty to any Related Interest Rate Agreement, and their respective successors, assigns and designees. Telecommunications Facilities shall mean all property, real or personal, tangible or intangible, of every kind, nature and description, and wheresoever situated, now owned or hereafter acquired by the Mortgagor, and used in whole or in part in connection with any telecommunications or cable operations now or hereafter conducted by the Mortgagor, including, without limitation, the provision of services involving or relating to telephone, cellular telephone, personal communications services, radio, television, cable and other voice, image and data communications of every type and description. Without limiting the foregoing, "Telecommunications Facilities" shall include all telecommunications, cable and radio transmitting and receiving equipment, headends, antennae, towers, satellite dishes, microwave communication equipment, machinery, computers, computer programs, software, parts, tools, implements, poles, posts, cross-arms, conduits, ducts, lines (whether underground or overhead or otherwise), wires, cables, exchanges, switches (including, without limitation, host switches and remote switches), testboards, racks, frames, motors, generators, batteries, items of central office equipment, pay-stations, protectors, subscriber equipment, instruments, connections, appliances and other machinery and equipment. Uniform Commercial Code shall mean the Uniform Commercial Code of the state of the Mortgagor's Location and any state in which any of the Mortgaged Property is located. ARTICLE II. GRANTING CLAUSES Section 2.01. Granting Clauses. In order to secure the repayment of the Obligations, whether such Obligations are made pursuant to a commitment, made at the option of the 8159226.1 ÛOG871. Administrative Agent or any Secured Party, made after a reduction to zero or other balance, or made otherwise, up to the Maximum Debt Limit, if any, and to declare the tenns and conditions upon which the Obligations are to be secured, the Mortgagor, in consideration of the premises, does hereby grant, bargain, sell, alienate, convey, warrant, assign, transfer, mortgage, hypothecate, pledge, set over, confinn and grant a security interest unto the Administrative Agent, for the ratable benefit of the Secured Parties, and any of their respective successors or assigns, WITH POWER OF SALE, all property, rights, privileges and franchises of the Mortgagor of every kind and description, real, personal or mixed, tangible or intangible, whether now owned or hereafter acquired by the Mortgagor, wherever located, EXCEPT ANY EXCEPTED PROPERTY, including all and singular the following described property other than Excepted Property (all of which is hereinafter called the "Mortgaged Property"): I All right, title and interest of the Mortgagor in and to those fee and leasehold estates in real property described in Appendix "A" hereto, subject in each case to the Pennitted Encumbrances, together with all buildings and improvements located thereon; II All right, title and interest of the Mortgagor in and to all other estates and interests in real property now owned by the Mortgagor and located in the counties listed in Appendix "A" hereto, or hereafter acquired, wherever located, including, without limitation, all fixtures, easements, pennits, licenses and rights of way comprising real property; III All right, title and interest of the Mortgagor in and to all Telecommunications Facilities now owned by the Mortgagor and located in the counties listed in Appendix "A" hereto, or hereafter constructed or acquired by the Mortgagor, wherever located; IV All right, title and interest of the Mortgagor in, to and under any and all grants, privileges, rights of way and easements now owned, held, leased, enjoyed or exercised, or which may hereafter be owned, held, leased, acquired, enjoyed or exercised, by the Mortgagor for the purposes of, or in connection with, the construction, acquisition, ownership, use or operation by or on behalf of the Mortgagor of the Telecommunications Facilities, wherever located; V All right, title and interest of the Mortgagor in, to and under any and all licenses, ordinances, privileges and pennits heretofore granted, issued or executed, or which may hereafter be granted, issued or executed, to it or to its assignors by the United States of America, or by any state, or by any county, township, municipality, village or other political subdivision thereof, or 8159226.1 ûOû872 by any agency, board, commission or department of any of the foregoing, authorizing the construction, acquisition, ownership, use or operation of the Telecommunications Facilities, insofar as the same may by law be assigned, granted, bargained, sold, conveyed, transferred, mortgaged or pledged, including, without limitation, all licenses and permits issued by the Federal Communications Commission (the "FCC"); VI All right, title and interest of the Mortgagor in, to and under any and all contracts heretofore or hereafter executed, as they may be amended or supplemented from time to time, by and between the Mortgagor and any person, firm, corporation or governmental body or agency, including, without limitation, contracts relating in any way to (i) the construction, acquisition, ownership, use, operation or output of the Mortgagor's Telecommunications Facilities, and (ii) the provision of telecommunications services; VII All right, title and interest of the Mortgagor in and to all other property, real or personal, tangible or intangible, of every kind, nature and description, and wheresoever situated, now owned or hereafter acquired by the Mortgagor, including, without limitation, all accounts, inventory (including without limitation, returned or repossessed goods), contract rights, chattel paper, electronic chattel paper, instruments, documents, investment property (including, without limitation, certificated and uncertificated securities, security entitlements, securities accounts, commodity contracts, and commodity accounts), letters of credit; letter-of-credit rights, equipment, inventory, fixtures, general intangibles (including, without limitation, payment intangibles, choses or things in action, litigation rights and resulting judgments, goodwill, patents, trademarks and other intellectual property, tax refunds, miscellaneous rights to payment, investments and other interests in entities not included in the definition of investment property (including, without limitation, all equities and patronage rights in all cooperatives and all interests in partnerships and j oint ventures), margin accounts, computer programs, software, invoices, books, records and other information relating to or arising out of the Mortgagor's business); and, to the extent not covered by the above, all other personal property of the Mortgagor of every type and description, including without limitation, supporting obligations, interests or claims in or under any policy of insurance, commercial tort claims, deposit accounts, money, and judgments (as such terms are presently or hereafter defined in the applicable Uniform Commercial Code), it being the intention hereof that all such property now owned but not specifically described herein or acquired or held by the Mortgagor after the date hereof shall be as fully embraced within and subjected to the Lien hereof as if the same were now owned by the Mortgagor and were specifically described herein to the extent only, however, that the subjection of such property to the Lien hereof shall not be contrary to law; and VIII Also, any Excepted Property that may, from time to time hereafter, by delivery or by writing of any kind, be subjected to the Lien hereof by the Mortgagor or by anyone in its behalf; and the Administrative Agent is hereby authorized to receive thè same at any time as additional 8159226.1 security hereunder for the ratable benefit of the Secured Parties. OOÛi873 TOGETHER WITH all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders and all rents, income, revenues, profits, cash, proceeds, products and benefits at any time derived, received or had from any and all of the above-described property of the Mortgagor and all deposits or other accounts into which the same may be deposited. TO HAVE AND TO HOLD all and singular the Mortgaged Property unto the Administrative Agent and its successors and assigns forever, for the ratable benefit of the Secured Parties, to secure the payment and performance of the Obligations, including, without limitation, the due performance of the covenants, agreements and provisions herein contained, and for the uses and purposes and upon the terms, conditions, provisos and agreements . hereinafter expressed and declared. ARTICLE III. PARTICULAR REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MORTGAGOR The Mortgagor represents, warrants and, except as otherwise expressly permitted by the terms of the Loan Documents, covenants with the Administrative Agent, for the benefit of the Secured Parties, as follows: Section 3.01. Authority to Execute and Deliver this Mortgage; All Action Taken; Enforceable Obligations. The Mortgagor is authorized under its articles of incorporation and bylaws or other applicable organizational documents and all applicable laws and by corporate or organizational action to execute and deliver this Mortgage; and this Mortgage is, and any amendment, supplement or restatement of this Mortgage, when executed and delivered will be, the legal, valid and binding obligation of the Mortgagor enforceable in accordance with its terms. Section 3.02. Authority to Mortgage Property; No Liens; Exception for Permitted Encumbrances; Mortgagor to Defend Title and Remove Liens. The Mortgagor has good and marketable title to all fee and leasehold estates in real property, good and marketable title to all personal property, and good, right and lawful authority to mortgage the Mortgaged Property for the purposes herein expressed. The Mortgaged Property is free and clear of any Lien affecting the title thereto, except Permitted Encumbrances. The Mortgagor will, so long as any of the Obligations shall remain unpaid, maintain and preserve the Lien of this Mortgage superior to all other Liens, other than Permitted Encumbrances, and will forever warrant and defend the title to the Mortgaged Property against any and all claims and demands. Section 3.03. No Encumbrances on Mortgaged Property. The Mortgagor will not create, incur, suffer or permit to exist any Lien on any of the Mortgaged Property, except for 8159226.1 úOû874 Permitted Encumbrances. Except for claims glvmg rise to Permitted Encumbrances, the Mortgagor will promptly payor discharge any and all obligations for or on account of which any such Lien might exist. Section 3.04. Sale or Transfer of Mortgaged Property. The Mortgagor shall not sell, lease or transfer any Mortgaged Property to any person or entity except as permitted by Section 3.7 of the Credit Agreement. The Mortgagor hereby agrees that the proceeds of the sale, lease or transfer of any Mortgaged Property to any person or entity that is not permitted by Section 3.7 of the Credit Agreement shall be applied in accordance with Subsection 1.7(C) of the Credit Agreement. Section 3.05. Payment of Obligations. The Mortgagor will duly and punctually pay all amounts due under the Obligations, at the dates and places and in the manner provided in all Loan Documents, and all other sums becoming due hereunder. Section 3.06. Preservation of Franchises and Compliance with Laws. The Mortgagor will take or cause to be taken all such action as may from time to time be necessary to obtain, preserve and renew all franchises, rights of way, easements, permits, and licenses now or hereafter granted or upon it conferred necessary to the operations of the Mortgagor, and will comply in all material respects with all laws, ordinances, regulations, and requirements applicable to it or the Mortgaged Property. Section 3.07. Maintenance of Mortgaged Property. The Mortgagor will at all times maintain and preserve the Mortgaged Property and each and every material part and parcel thereof in good repair, working order and condition, ordinary wear and tear excepted, and in material compliance with all applicable laws, ordinances, regulations, and requirements, and will from time to time make all needed and proper repairs, renewals, and replacements, and useful and proper alterations, additions, betterments and improvements, and will, subject to contingencies beyond its reasonable control, at all times keep its plant and properties in continuous operating condition and use all reasonable diligence to furnish the consumers served by it through the Mortgaged Property, or any part thereof, with adequate services furnished by the Mortgagor. Section 3.08. Insurance; Restoration of Damaged Mortgaged Property. The Mortgagor will maintain insurance as required by Section 2.2 of the Credit Agreement. In the event of damage to or the destruction or loss of any portion of the Mortgaged Property, unless the Administrative Agent shall otherwise agree, the Mortgagor shall replace or restore such damaged, destroyed or lost portion so that the Mortgaged Property shall be in substantially the same condition as it was in prior to such damage, destruction or loss. If an Event of Default has occurred and is then continuing, the proceeds received as a result of such destruction or loss shall be applied in accordance with Subsections 1.7(B) and 1.8 of the Credit Agreement. Provided no Potential Default or Event of Default then exists, unless otherwise provided in the Loan Documents, the Administrative Agent shall provide to the Mortgagor any insurance proceeds received by the Administrative Agent upon such reasonable terms and conditions as the Administrative Agent may require to ensure that such proceeds are used for the foregoing 8159226.1 ûOü875 purpose and that such required replacement or restoration will be completed. The Mortgagor shall, within 180 days of receipt of such proceeds, replace the lost portion of the Mortgaged Property or shall commence such restoration promptly after such damage, destruction or loss shall have occurred and shall complete such replacement or restoration as expeditiously as practicable, and shall payor cause to be paid, out of the proceeds of such insurance or otherwise, all costs and expenses in connection therewith so that such replacement or restoration shall be so completed that the portion of the Mortgaged Property so replaced or restored shall be subject to the lien of the Administrative Agent under this Mortgage and any other applicable Loan Documents and free and clear of all Liens, except for Permitted Encumbrances. At the request of the Administrative Agent, the Mortgagor shall exercise such rights and remedies which it may have under any insurance policy or fidelity bond and which may be designated by the Administrative Agent, and the Mortgagor hereby irrevocably appoints the Administrative Agent as its agent to exercise such rights and remedies under any insurance policy or bond as the Administrative Agent may choose, and the Mortgagor shall pay all reasonable costs and expenses incurred by the Administrative Agent in connection with such exercise. Section 3.09. Administrative Agent Right to Expend Money to Protect Mortgaged Property. If an Event of Default is then existing, the Administrative Agent may, in its sole discretion, for the ratable benefit of the Secured Parties, but shall not be obligated to, advance funds on behalf of the Mortgagor, in order to ensure compliance with any covenant or agreement of the Mortgagor made in or pursuant to this Mortgage or any of the Loan Documents, to preserve or protect any right or interest of the Administrative Agent in the Mortgaged Property or under or pursuant to this Mortgage or any of the Loan Documents, including, without limitation, the payment of any· insurance premiums or taxes and the satisfaction or discharge of any judgment or any Lien upon the Mortgaged Property or other property or assets of the Mortgagor (other than Permitted Encumbrances); provided, however, that the making of any such advance by the Administrative Agent shall not constitute a waiver by the Administrative Agent or any Secured Party of any Event of Default with respect to which such advance is made nor excuse the Mortgagor from any performance required hereunder. The Mortgagor shall pay to the Administrative Agent upon demand all such advances made by the Administrative Agent with interest thereon at a rate equal at all times to 3.50% per annum above the Base Rate. All such advances and accrued interest shall be secured by this Mortgage. Section 3.10. Further Assurances. The Mortgagor shall promptly do all acts and things, including the execution, acknowledgment and delivery of such financing statements, amendments thereto and other instruments and documents as the Administrative Agent may request, to enable the Administrative Agent to perfect and maintain the Lien of this Mortgage and/or the rights and remedies of the Administrative Agent hereunder. The Mortgagor shall notify the Administrative Agent in each Compliance Certificate delivered pursuant to Subsection 4.5(C) of the Credit Agreement of the acquisition of any fee or leasehold estate in real property or any interest therein including all easements and licenses (and the cost thereof or annual rentals with respect thereto) and shall execute and record such amendments or supplements to this Mortgage or other documents or instruments as are necessary or appropriate to subject such real property to the Lien of this Mortgage and shall deliver such executed and recorded amendments or supplements or other documents or instruments to the Administrative Agent. In addition, the 8159226.1 00v876 Mortgagor shall promptly notifY the Administrative Agent of (i) its acquisition or ownership of any Mortgaged Property located in any county in which this Mortgage is not then recorded, (ii) any change in its name, (iii) any change in its principal place of business or its chief executive office, and (iv) any change in the state of the Mortgagor's Location. In the event the Mortgagor fails to take any action required under this Section 3.10, the Administrative Agent may take any such action and make, execute and record any such financing statements, instruments and documents for and in the name of the Mortgagor, and the Mortgagor hereby irrevocably appoints the Administrative Agent as its attorney-in-fact to take such actions, which appointment is coupled with an interest and irrevocable. Section 3.11. Condemnation, Etc. In the event that the Mortgaged Property or any part thereof shall be taken under the power of eminent domain or like power, then, unless the Administrative Agent otherwise consents or as provided in the Loan Documents, all proceeds and avails thereof shall be applied by the Mortgagor to the prepayment of the Obligations (such prepayments to be applied in such order and manner as the Administrative Agent may, in its sole discretion, elect). Section 3.12. Conflict with Mortgage Terms. The provisions of this Mortgage and the Loan Documents shall be cumulative and not mutually exclusive, notwithstanding any inconsistencies. Section 3.13. Environmental Representations, Warranties and Covenants. In addition to the representations and warranties contained in the Loan Documents, the Mortgagor makes the following representations, warranties and covenants, all of which are subject to any exceptions that the Mortgagor may have previously disclosed in writing to the Administrative Agent and the Secured Parties, and which, to the extent that they deal with representations of fact, are based on the Mortgagor's present knowledge, arrived at after reasonable inquiry. (A) Use of the Mortgaged Property. (1) The Mortgagor shall: (a) use, handle, transport or store Hazardous Materials as defined under any Environmental Law (both as herein defined); and (b) store or treat non-hazardous wastes: (i) in a good and prudent manner in the ordinary course of business; and (ii) in compliance with all applicable Environmental Laws. (2) The Mortgagor shall not conduct or allow to be conducted, in violation of any Environmental Law, any business, operations or activity on the Mortgaged Property, or, except in strict compliance with applicable law, employ or use the Mortgaged Property to generate, use, handle, manufacture, treat, store, process, transport or dispose of any Hazardous Materials, or any other substance which is prohibited, controlled or regulated under applicable law. The Mortgagor shall not use the Mortgaged Property in a way that poses a threat or nuisance to public safety, health or the environment, or cause or allow to be caused a known or suspected release of Hazardous Materials, on, under, or from the Mortgaged Property. (3) The Mortgagor shall not do or permit any act or thing, business or 8159226.1 00&8717 operation that poses an unreasonable risk of harm, or impairs or may impair the value of the Mortgaged Property or any part thereof. (B) Condition of the Mortgaged Property. (1) The Mortgagor shall take all appropriate response actions, including any removal and remedial actions, in the event of a release, emission, discharge or disposal of Hazardous Materials in, on, under, or about the Mortgaged Property, so as to remain in compliance with all Environmental Laws. (2) All underground tanks, wells, septic tanks, ponds, pits, or any other storage tanks (whether currently in use or abandoned) on the Mortgaged Property, if any, are, as of the date hereof, maintained in compliance with all flpplicable Environmental Laws. (C) Notice of Environmental Problems or Litigation. Neither the Mortgagor nor any of its tenants have given, nor were they required to give, nor have they received, any notice, letter, citation, order, warning, complaint, inquiry, claim or demand that: (1) the Mortgagor and/or any tenants have violated, or are about to violate, any Environmental Law, judgment or order; (2) there has been a release, or there is a threat of release, of Hazardous Materials from the Mortgaged Property; (3) the Mortgagor and/or its tenants may be or are liable, in whole or in part, for the costs of cleaning up, remediating, removing or responding to a release or a threatened release of Hazardous Materials; or (4) the Mortgaged Property is subject to a lien in favor of any governmental entity for any liability, costs or damages, under any Environmental Law arising from, or costs incurred by such governmental entity in response to, a release or a threatened release of a Hazardous Material. The Mortgagor further represents and warrants that no conditions currently exist or are currently reasonably foreseeable that would subject the Mortgagor to any such investigation, litigation, administrative enforcement or to any damages, penalties, injunctive relief, or cleanup costs under any Environmental Law. Upon receipt of any such notice, the Mortgagor and its tenants shall immediately provide a copy to the Administrative Agent. (D) Right of Inspection. The Mortgagor hereby grants, and will cause any tenants to grant, to the Administrative Agent, for the ratable benefit of the Secured Parties, and its respective agents, attorneys, employees, consultants, contractors, successors and assigns, in addition to those inspection rights granted to the Administrative Agent and the Lenders pursuant to the Credit Agreement, an irrevocable license and authorization, upon reasonable notice, to enter upon and inspect the Mortgaged Property and facilities thereon, and perform such tests, including without limitation, subsurface testing, soils and groundwater testing, and other tests which may physically invade the Mortgaged Property, as the Administrative Agent, in its sole discretion, determines· are necessary to protect the security interest of the Secured Parties; provided, however, that under no circumstances shall the Administrative Agent be obligated to perform such inspections or tests. (E) Indemnity. In addition to the indemnification obligations of the Mortgagor set forth in Section 6.08 of this Mortgage, the Mortgagor agrees to indemnify and 8159226.1 ûOû878 hold the Administrative Agent, each Secured Party, and each of their respective directors, employees, affiliates, agents, attorneys and successors and assigns, harmless from and against any and all claims, losses, damages, liabilities, fmes, penalties, charges, judgments, administrative orders, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith (including without limitation attorney's fees and expenses) arising directly or indirectly, in whole or in part, out of any failure of the Mortgagor to comply with the environmental representations, warranties, and covenants contained herein. (F) Continuation of Representations, Warranties, Covenants and Indemnities. The Mortgagor's representations, warranties, covenants, and indemnities contained herein shall survive the occurrence of any event whatsoever, including, without limitation, the satisfaction of the Obligations secured hereby, the reconveyance or foreclosure of this Mortgage, the acceptance by the Administrative Agent of a deed in lieu of foreclosure, any transfer or abandonment of the Mortgaged Property or any other realization upon collateral securing the Obligations. (G) Corrective Action. In the event the Mortgagor is in breach of any of its representations, warranties or agreements as set forth above, then, without limiting the Administrative Agent's other rights hereunder, the Mortgagor, at its sole expense, shall take all actions required, including, without limitation, environmental cleanup of the Mortgaged Property, to comply with the representations, warranties, and covenants contained herein and with all applicable legal requirements and, in any event, shall take all actions deemed necessary under all applicable Environmental Laws. Section 3.14. Agricultural Property. The Mortgaged Property, as in existence as of the date of this Mortgage, is not "agricultural real estate" as defined in Wyo. Stat. 1-18-1039(c). Section 3.15. Public Service Commission Approval. The Mortgagor has obtained, prior to its execution of this Mortgage, any necessary approvals and consents of the Wyoming Public Service Commission in order to grant a mortgage and/or security interest in the Mortgaged Property. ARTICLE IV. EVENTS OF DEFAULT AND REMEDIES OF THE ADMINISTRATIVE AGENT Section 4.01. Events of Default. Each of the following shall be an "Event of Default": (A) default shall be made in the payment of any amount due under any Obligation; (B) default shall be made in the due observance or performance of any of the 8159226.1 00&879 covenants, conditions or agreements on the part of the Mortgagor in this Mortgage, and, if such default shall be under Section 3.06, 3.07 or 3.08 hereof, such default shall continue for a period of thirty (30) days after written notice specifying such default and requiring the same to be remedied shall have been given to the Mortgagor by the Administrative Agent; (C) any representation or warranty made by the Mortgagor herein, or in any certificate, instrument or document delivered hereunder, shall prove to be false or misleading in any material respect on or as of the date made; (D) an "Event of Default" shall have occurred under the Credit Agreement or any other Loan Document; or (E) an event of damage, destruction or loss or a taking under the power of eminent domain or like power (or transfer in lieu of such taking) shall have had, in the judgment of the Administrative Agent, a Material Adverse Effect on the ability of the Mortgagor to payor perform the Obligations. Section 4.02. Acceleration of Maturity. Upon the occurrence and during the continuance of any Event of Default, the Obligations (other than Obligations under any Related Interest Rate Agreement to which a Lender or an Affiliate of a Lender is a party, which may be accelerated solely in the discretion of the Lender or Affiliate of a Lender party thereto) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other requirements of any kind, all of which are hereby expressly waived by the Mortgagor, anything contained herein or in the Loan Documents to the contrary notwithstanding. Upon the occurrence and during the continuance of any other Event of Default under this Mortgage or any other Loan Document, the Administrative Agent may, and upon written demand by the Requisite Lenders shall, by written notice to the Mortgagor, declare all or any portion of the Obligations (other than Obligations under any Related Interest Rate Agreement to which a Lender or an Affiliate of a Lender is a party, which may be accelerated solely in the discretion of the Lender or Affiliate of a Lender party thereto) to be, and the same shall forthwith become, immediately due and payable together with accrued interest thereon. Section 4.03. Remedies of the Administrative Agent. If one or more Events of Default shall occur and be continuing, the Administrative Agent (personally or by attorney), in its discretion, may: (A) take immediate possession of the Mortgaged Property, collect and receive all credits, outstanding accounts and bills receivable of the Mortgagor and all rents, income, revenues, profits and proceeds pertaining to or arising :trom the Mortgaged Property, or any part thereof, whether then past due or accruing thereafter, and issue binding receipts therefor; and manage, control and operate the Mortgaged Property as fully as the Mortgagor might do if in possession thereof, including, without limitation, the making of all repairs or replacements deemed necessary or advisable; 8159226.1 00ô880 (B) proceed to protect and enforce the rights of the Mortgagor and the rights of the Administrative Agent by suits or actions in equity or at law in any court or courts of competent jurisdiction, whether for specific performance of any covenant or any agreement contained herein or in any Loan Document or in aid of the execution of any power herein granted or for the foreclosure hereof or hereunder or for the sale of the Mortgaged Property, or any part thereof, or to collect the debts hereby secured or for the enforcement of such other or additional appropriate legal or equitable remedies as may be deemed necessary or advisable to protect and enforce the rights and remedies herein granted or conferred, and in the event of the institution of any such action or suit, the Administrative Agent shall have the right to have appointed a receiver of the Mortgaged Property and of all rents, income, revenues, profits and proceeds pertaining thereto or arising therefrom, whether then past due or accruing after the appointment of such receiver, derived, received or had ITom the time of the commencement of such suit or action, and such receiver shall have all the usual powers and duties of receivers in like and similar cases, to the fullest extent permitted by law, and if application shall be made for the appointment of a receiver, the Mortgagor hereby expressly consents that the court to which such application shall be made may make said appointment ex parte; (C) sell or cause to be sold all of the Mortgaged Property or any part thereof, and all right, title, interest, claim and demand of the Mortgagor therein or thereto, at public auction at such place in any county in which the property to be sold, or any part thereof, is located, at such time, upon such notice, and upon such terms as may be specified in a notice of sale, which shall state the time when and the place where the sale is to be held, shall contain a brief description of the property to be sold, and shall be given by mailing a copy thereof to the Mortgagor at least fifteen (15) days prior to the date fixed for such sale and by publishing the same once in each week for two successive calendar weeks prior to the date of such sale in a newspaper of general circulation published in said county or, if no such newspaper is published in such county, in a newspaper of general circulation in such county, the first such publication to be not less than fifteen (15) days nor more than thirty (30) days prior to the date fixed for such sale. Any sale to be made under this Section 4.03(C) may be adjourned ITom time to time by announcement at the time and place appointed for such sale or for such adjourned sale or sales, and without further notice or publication the sale may be had at the time and place to which the same shall be adjourned. Notwithstanding the foregoing, in the event another or different notice of sale or another or different manner of conducting the same shall be required by law, the notice of sale shall be given or the sale be conducted, as the case may be, in accordance with the applicable provisions of law. The costs and expenses incurred by the Administrative Agent (including, but not limited to, receiver's fees, counsel fees, cost of advertisement and agents' compensation) in the exercise of any of the remedies provided in this Mortgage shall be secured by this Mortgage. (D) in furtherance of and not in limitation of any other provision of this Mortgage, foreclose the Mortgaged Property located in Wyoming by judicial action or by statutory foreclosure by advertisement and sale pursuant to Wyo. Stat. Ann. § 34-4-101 et. seq., as may be amended from time to time. Section 4.04. Application of Proceeds from Remedial Actions. Any proceeds or 8159226.1 00\)88:1 funds arising from the exercise of any rights or the enforcement of any remedies herein provided after the payment or provision for the payment of any and all costs and expenses in connection with the exercise of such rights or the enforcement of such remedies shall be applied to the Obligations in accordance with Section 6.8 of the Credit Agreement. Section 4.05. Remedies Cumulative; No Election. Every right or remedy herein conferred upon or reserved to the Administrative Agent, for the benefit of the Secured Parties, shall be cumulative and shall be in addition to every other right and remedy given hereunder or under the Credit Agreement or any other Loan Document or now or hereafter existing at law, or in equity, or by statute. The pursuit of any right or remedy shall not be construed as an election. Section 4.06. Waiver of Appraisement Rights. The Mortgagor, for itself and all who may claim through or under it, covenants that it will not at any time insist upon or plead, or in any manner whatever claim, or take the benefit or advantage of, any appraisement, valuation, stay, extension or redemption laws now or hereafter in force in any locality where any of the Mortgaged Property may be situated, in order to prevent, delay or hinder the enforcement or foreclosure of this Mortgage, or the absolute sale of the Mortgaged Property, or any part thereof, or the final and absolute putting into possession thereof, immediately after such sale, of the purchaser or purchasers thereat, and the Mortgagor, for itself and all who may claim through or under it, hereby waives the benefit of all such laws unless such waiver shall be forbidden by law. ARTICLE V. POSSESSION UNTIL DEFAULT; SATISFACTION Section 5.01. Possession Until Default. Until one or more Events of Default shall have occurred, the Mortgagor shall be suffered and permitted to retain actual possession of the Mortgaged Property, and to manage, operate and use the same and any part thereof, with the rights and franchises appertaining thereto, including, without limitation, to collect, receive, take, use and enjoy the rents, revenues, issues, earnings, income, products, profits and proceeds thereof or therefrom, subject to the provisions ofthis Mortgage. Section 5.02. Satisfaction. If the Mortgagor and each of the other Loan Parties shall well and truly payor cause to be paid the Obligations at the times and in the manner provided in the Loan Documents, and shall also payor cause to be paid all other sums payable by the Mortgagor hereunder, and shall keep and perform all covenants herein and in all other Loan Documents required to be kept and performed by them, and there are no further obligations to make advances to any Loan Party under any of the Loan Documents, then and in that case, all property, rights and interest hereby conveyed or assigned or pledged shall, upon the written request of the Mortgagor, revert to the Mortgagor and the estate, right, title and interest of the Administrative Agent shall thereupon cease, determine and become void, and the Administrative Agent, in such case, at the Mortgagor's cost and expense, shall enter satisfaction of this Mortgage upon the record. 8159226.1 OO\J¡882· ARTICLE VI. MISCELLANEOUS Section 6.01. Property Deemed Real Property. It is hereby declared to be the intention of the Mortgagor that all Telecommunications Facilities embraced in the Mortgaged Property, including, without limitation, all rights of way and easements granted or given to the Mortgagor or obtained by it to use real property in connection with the construction, acquisition, ownership, use or operation of the Telecommunications Facilities, and all other property physically attached to any of the foregoing, shall be deemed to be real property. Section 6.02. Mortgage to Bind and Benefit Successors and Assigns. All of the covenants, stipulations, promises, undertakings and agreements herein contained by or on behalf of the Mortgagor shall bind its successors and assigns, whether so specified or not, and all titles, rights and remedies hereby granted to or conferred upon the Administrative Agent shall pass to and inure to the benefit of the successors and assigns of the Administrative Agent. The Mortgagor hereby agrees to execute such consents, acknowledgments and other instruments as may be requested by the Administrative Agent in connection with the assignment, transfer, mortgage, hypothecation or pledge of the rights or interests of the Administrative Agent hereunder or under the Loan Documents or in and to any of the Mortgaged Property. Section 6.03. Headings. The descriptive headings of the various articles and sections of this Mortgage were formulated and inserted for convenience only and shall not be deemed to affect the meaning or construction of any of the provisions hereof. Section 6.04. Notices. All demands, notices, reports, approvals, designations or directions required or permitted to be given hereunder shall be delivered in accordance with the terms and provisions of Section 9.3 of the Credit Agreement at the following address: As to the Mortgagor: Union Telephone Company P.O. Box 160 850 North Highway 414 Mountain View, Wyoming 82939 Attention: Vice President Fax No: 307-782-6913 8159226.1 OOv883 As to the Administrative Agent: CoBank, ACB 5500 S. Quebec Street Greenwood Village, CO 80111 Attention: Communications & Energy Banking Group Fax No: 303-740-4002 Either such party may from time to time, in accordance with the terms and provisions of the Credit Agreement, designate to each other a new address to which demands, notices, reports, approvals, designations or directions may be addressed, and from and after any such designation, the address designated shall be deemed to be the address of such party in lieu of the address given above. Section 6.05. Severability. The invalidity of anyone or more phrases, clauses, sentences, paragraphs or provisions of this Mortgage shall not affect the remaining portions hereof. Section 6.06. Mortgage Deemed Security Agreement. To the extent that any of the property described or referred to in this Mortgage is governed by the provisions of the Uniform Commercial Code, this Mortgage is hereby deemed a "security agreement" and a "financing statement" for said security agreement under the Uniform Commercial Code. The Mortgagor hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in the personal and other property included in the Mortgaged Property, and all replacements of, substitutions for, and additions to, such property, and the products and proceeds thereof. The Mortgagor agrees that this Mortgage or any reproduction hereof may be filed as a financing statement in the appropriate offices to perfect the security interests granted herein. The Mortgagor shall, at the Mortgagor's own expense, execute, deliver, file and refile any financing or continuation statements or other security agreements the Administrative Agent may require from time to time to perfect, confirm or maintain the lien of this Mortgage with respect to such property. Without limiting the foregoing, the Mortgagor hereby irrevocably appoints the Administrative Agent as attorney-in-fact for the Mortgagor and authorizes the Administrative Agent to execute, deliver and file such instruments (including electronic filings) for or on behalf of the Mortgagor at the Mortgagor's expense, which appointment, being for security, is coupled with an interest and shall be irrevocable. The mailing addresses of the Mortgagor as debtor, and the Administrative Agent as secured party are as set forth in Section 6.04. Section 6.07. Governing Law. The effect and meaning of this Mortgage, and the rights of all parties hereunder, shall be governed by, and construed according to, the laws of the State of Wyoming, except to the extent governed by federal law or the Uniform Commercial Code of the state of the Mortgagor's Location. Section 6.08. Indemnification by the Mortgagor of the Administrative Agent. In addition to the indemnification obligations of the Mortgagor set forth in the Loan Documents and herein, the Mortgagor agrees to indemnify and save harmless the Administrative Agent against any liability or damages which the Administrative Agent may incur or sustain in the exercise and 8159226.1 (;·OúJ884 performance of its rightful powers and duties hereunder, including any liability or damages arising from the Mortgagor's failure to comply with any Environmental Law or the like applicable to the Mortgaged Property. For such indemnity, the Administrative Agent shall be secured under this Mortgage in the same manner as the Obligations and all amounts payable under this Section shall be paid to the Administrative Agent with interest at the rate specified in Section 3.09. The Mortgagor's obligations under this Section shall survive the exercise by the Administrative Agent of its rights and remedies hereunder, any foreclosure on all or any part of the Mortgaged Property and the cancellation or satisfaction of this Mortgage. Section 6.09. FCC Matters. Notwithstanding any other provision ofthis Mortgage: (A) To the extent applicable thereto, any foreclosure on, sale, transfer or other disposition of any of the Mortgaged Property by the Administrative Agent shall be pursuant to Section 31 O( d) of the Communications Act of 1934, as amended, and the applicable rules and regulations thereunder, and, if and to the extent required thereby, subject to the prior approval or notice to and non-opposition of the FCC. (B) If an Event of Default shall have occurred and be continuing, the Mortgagor shall take any action which the Administrative Agent may request in order to transfer and assign to the Administrative Agent, for the benefit of the Secured Parties, or to such one or more third parties as the Administrative Agent may designate, or to a combination of the foregoing, each FCC license or permit held by the Mortgagor. The Administrative Agent is empowered, to the extent permitted by applicable law, to request the appointment of a receiver from any court of competent jurisdiction. Such receiver may be instructed by the Administrative Agent to seek from the FCC an involuntary transfer of control of each such FCC license or permit for the purpose of seeking a bona fide purchaser to whom control will ultimately be transferred. The Mortgagor hereby agrees to authorize such an involuntary transfer of control upon the request of the receiver so appointed and, if the Mortgagor shall refuse to authorize the transfer, its approval may be required by the court. Upon the occurrence and during the continuance of an Event of Default, the Mortgagor shall further use its best efforts to assist in obtaining approval of the FCC and any state regulatory bodies, if required, for any action contemplated by this Mortgage, including, without limitation, the preparation, execution and filing with the FCC and any state regulatory bodies of the assignor's or transferor's portion of any application or applications for consent to the assignment of any FCC license or permit or transfer of control necessary or appropriate under the rules and regulations of the FCC or any state regulatory body for approval or non-opposition of the transfer or assignment of any portion of the Mortgaged Property, including, without limitation, any FCC license or permit. (C) The Mortgagor acknowledges that the assignment or transfer of each FCC license or permit is integral to the Administrative Agent's and the other Secured Parties' realization of the value of the Mortgaged Property, that there is no adequate remedy at law for failure by the Mortgagor to comply with the provisions of this Section 6.09 and that such failure would not be adequately compensable in damages, and therefore agrees, without limiting the right of the Administrative Agent to seek and obtain specific performance of other obligations of the Mortgagor contained in this Mortgage, that the agreements contained in this Section 6.09 may 8159226.1 be specifically enforced. ... 0 ". RSe:" UfO) ~ (D) To the extent required by applicable law, the Administrative Agent shall notify the Mortgagor and the FCC in writing at least ten (10) days prior to the date on which the Administrative Agent intends to exercise its rights, pursuant to this Mortgage or any other document or instrument relating to the Obligations, by foreclosing on, or otherwise disposing of, any Mortgaged Property in connection With which such notice is required. A POWER OF SALE HAS BEEN GRANTED IN THIS REAL ESTATE MORTGAGE AND SECURITY AGREEMENT. A POWER OF SALE MAY ALLOW THE ADMINISTRATIVE AGENT TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS REAL ESTATE MORTGAGE AND SECURITY AGREEMENT. [Signatures Follow on Next Page] 8159226.1 OOi:Þ88€ IN WITNESS WHEREOF, Union Telephone Company, as Mortgagor, has caused this Mortgage to be signed in its name by its officer thereunto duly authorized, all as of the day and year first above written. UNION TELEPHONE COMPANY, Mortgagor STATE OF WYOMING ) ) SS COUNTY OF UINTA ) On this rØ- day of "m , 200)7. before me appeared John G. Woody, to me personallykn~ duly sworn, did say that he is the Vice President of Union Telephone / pany, a Wyoming corporation, and that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and said John G. Woody acknowledged said instrument to be the free act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year in first above written. (S " L,t,"", Elizabeth L. T~ ~/~¿>-/ d7~-?:; q?;~) ~j,-..r/ .<.~ , Notary Puhlk blic t',!L ','11' .¡',' .5tate. of V ornU1g -' "~'.' ~J_<".. IJ ,,"-';" ,', J Coulto/ inta. My.' 0 . n~ County of Residence: ~)G ./ 8]592]7.] û0Ô1881~! APPENDIX "A" -- MORTGAGED PROPERTY 1. Legal descriptions of real property in which the Mortgagor has a fee estate: See attached Exhibit "A." 2. Legal descriptions of real property in which the Mortgagor has a leasehold estate: None. 3. Counties in which real property of the Mortgagor is located: Lincoln. 8159226.1 APPENDIX "B" -- EXCEPTED PROPERTY 00&888 1. All automobiles, trucks, trailers and other vehicles (including, without limitation, aircraft or ships) owned or used by the Mortgagor and any equity and other securities or investments of the Mortgagor in CoBank. 2. Notwithstanding anything to the contrary contained herein, the Mortgaged Property shall not include any item of real or personal, tangible or intangible, property to the extent constituting any license or permit issued by the FCC or any applicable PUC to the extent and only for so long as such security interest in such license or permit is (i) prohibited by laws of the FCC or any PUC or (ii) is prohibited only if without the consent of the FCC or any PUC and the requirement to obtain such consent is legally enforceable and such consent has not been obtained, provided, however, (A) if at any time such grant of a security interest in any license or permit shall be permitted or consent in respect thereof shall have been obtained, then the Mortgagor shall at such time be deemed to have granted a security interest in such license or permit (and such security interest will attach immediately without further action) and (B) the rights to receive, and any interest in, all proceeds of, or monies or other consideration received or receivable from or attributable to the sale, transfer, assignment or other disposition of, any license or permit (to the extent a direct security interest in such license or permit or proceeds from the sale or disposition of such license or permit shall not have already been granted) shall attach immediately and be subject to the security interest granted pursuant to Section 2.01. 8159226.1 EXHIBIT A ^O'''''~Q''''''' v UJc'o::;; Lots Three (3) and Four (4) in Block Three (3), Second Addition to the Town of Tulsa, Now LaBarge, Lincoln County, Wyoming. AND Beginning at a point that is N45°46'14"W 598.99 feet to a Crass Cap right-of-way monument thence N13°36'54"E 589.22 feet from the south 1/4 Comer of Section 20, Township 37 North, Range 118 West of the 6th Principle Meridian LINCOLN COUNTY, WYOMING, said point being the Southwest comer of lot 9 of the Alpendorf Subdivision Phase II recorded as instrument #729430 being the TRUE POINT OF BEGINNING, and running thence SI5°12'42"E 5.20 feet; thence S74°47'18"W 50.25 feet; thence NI5°12'42"W 60.40 feet; N74°47'18"E 50.25 feet; thence S15° 12'42"E 55.20 feet to the point of beginning, containing 3,035 square feet. AND Unit No.1, ALL SEASON SUITES, Lincoln County, State of Wyoming, as per the duly recorded plat thereof. 8159226.1