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HomeMy WebLinkAbout946184 000002 RUS DESIGNATION: Utah 514-B43 All West RECEIVED 3/30/2009 at 9:56 AM RECEIVING # 946184 BOOK: 719 PAGE: 2 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY m ~ z¡ :IE liiläl Z5~8!::J~ 8 ~ ~6 ä!~!flm~i ~~~8~! fi2~a:~> cffiffiiiiiffi i~( )~lu ~~WI=21I: è:Sa:~u.81~ cltø:OŒØ MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT made by and among ALL WEST COMMUNICATIONS, INC. 50 West 100 North Kamas, Utah 84036 as Mortgagor and Debtor, THE UNITED STATES OF AMERICA, Rural Utilities Service Washington, D.C. 20250-1500, as Mortgagee and secured party. and ALL WEST/UTAH, INC. 50 West 100 North Kamas, Utah 84036 All WEST/WYOMING, INC. 50 West 100 North Kamas, Utah 84036 ALL WEST/IDAHO, INC. 50 West 100 North Kamas, Utah 84036 ALL WEST CAPITAL MANAGEMENT, INe. 50 West 100 North Kamas, Utah 84036 As Mortgagors THIS INSTRUMENT GRANTS A SECURITY INTEREST IN A TRANSMITTING UTILITY. THE DEBTOR AS MORTGAGOR IS A TRANSMITTING UTILITY. THIS INSTRUMENT CONTAINS PROVISIONS THAT COVER REAL AND PERSONAL PROPERTY, AFTER-ACQUIRED PROPERTY, FIXTURES, PROCEEDS, FUTURE ADVANCES AND FUTURE OBLIGATIONS. THIS INSTRUMENT WAS DRAFTED BY THE RURAL UTILITIES DIVISION, OFFICE OF THE GENERAL COUNSEL, U.S. DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C. 20250- 1400. MORTGAGOR'S ORGANIZATION NUMBER: 1149588-0142. No. S' LINCOLN COUNTY - TRACT 23 PART OF TAX PARCEL NUMBER: OOOO-C31-01-202.09 THIS MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT (hereinafter this "Mortgage, ") dated as of November 6, 2008, made by and among ALL WEST COMMUNICATIONS, INC (hereinafter the "Mortgagor"), a corporation existing under the laws of the State of Utah, as Mortgagor and Debtor, and THE UNITED STATES OF AMERICA (hereinafter the "Government"), acting through the Administrator of the Rural Utilities Service ("RUS"), as Mortgagee and secured party, ALL WESTIUTAH, INC. (hereinafter "All West/Utah"), a corporation existing under the laws of the State of Utah, ALL WESTIWYOMING, INC. (hereinafter "All West/Wyoming"), a corporation existing under the laws of Wyoming, ALL WEST/IDAHO, INC (hereinafter "All West/Idaho"), a corporation existing under the Jaws of the State of Idaho, and ALL WEST CAPITAL MANAGEMENT, INC (hereinafter "All West Capital Management"), a corporation existing under the laws of the State of Oregon (All WestlUtah, All West/Wyoming, All West/Idaho and All West Capital Management are collectively referred to herein as the "Other Parties"). 000003 WHEREAS, the Mortgagor has determined at this time to borrow funds, or to obtain a loan guarantee, uom the Government pursuant to the RuraJ Electrification Act of 1936 (7 U.S.C. § 901 et seq.) (hereinafter the "Act") and the Loan Agreement identified in Schedule A, and accordingly the Mortgagor has duly authorized, executed, and delivered to the Government, its mortgage note(s) identified in Schedule A (hereinafter the "Current RDS Note(s),") which are to be secured by this Mortgage of the property hereinafter described; WHEREAS, it is contemplated that the Current RUS Note(s) shall be secured by this Mortgage, as may be additional funding and notes, and/or renewal and substitute notes (hereinafter collectively the "Additional Notes,") which may uom time to time be executed and delivered by the Mortgagor to the Government, or notes which otherwise obligate the Mortgagor to the Government, as hereinafter provided, (the Current RUS Note(s), and the Additional Notes are hereinafter collectively called the "Notes;") WHEREAS, the Mortgagor now owns or leases the facilities (hereinafter the "Existing Facilities") identified in Schedule B; WHEREAS, each of the Other Parties is a subsidiary of All West Financial Services, Inc. ("All West Financial Services") and All West Financial Services is a subsidiary of the Mortgagor; WHEREAS, each of the Other Parties is executing this Mortgage for the purpose of mortgaging certain real property which it owns, as identified in Schedule B, to secure the Mortgagor's obligations under the Mortgage; and WHEREAS, to the extent that any of the property described or refen-ed to in this Mortgage is governed by the provisions of the Uniform Commercial Code of any State (hereinafter the "UCC,") the parties hereto desire that this Mortgage be regarded as a "security agreement" under the DCC; and WHEREAS, all acts necessary to make this Mortgage a valid and binding legal instrument for the security of the Notes and other obligations of the Mortgagor have been, in all respects, duly authorized. NOW, THEREFORE, this Mortgage WITNESSETH: GRANTING CLAUSE NOW, THEREFORE, THIS MORTGAGE WITNESSETH: That to secure the payment of the principal, interest, and premium, if any, on the Current RUS Note(s), and all Notes issued hereunder according to Page 2 00('004 their tenor and effect, and to secure the perfonnance of all provisions therein, herein, in the Loan Agreement, and in consideration of the covenants herein contained and other good and valuable consideration, the Mortgagor (and the each Other Party with respect to its real property listed in Schedule B only) have mortgaged, pledged and granted a continuing security interest in, and by these presents does hereby grant, bargain, sell, alienate, remise, release, convey, assign, transfer, hypothecate, pledge, set over and confirm, pledge, and grant unto the Mortgagee, for the purposes herein expressed, a continuing security interest and lien in all property, assets, rights, privileges, licenses and franchises of the Mortgagor of every kind and description, real, personal or mixed, tangible and intangible, of the kind or nature specifically mentioned herein, or any other kind or nature now owned or hereafter acquired or arising by the Mortgagor (by purchase, consolidation, merger, donation, construction, erection or in any other way) wherever located, including without limitation all or in part the following (hereinafter the "Mortgaged Property:") All right, title, and interest of the Mortgagor (and each of the Other Parties with respect to its real property listed in Schedule B only) in and to the Existing Facilities, buildings, plants, works, improvements, structures, estates, grants, franchises, easements, rights, privileges and properties, whether real, personal, or mixed, tangible or intangible, of every kind or description, now or hereafter owned, leased, constructed, or acquired by the Mortgagor, wherever located, and in and to all extensions, improvements, and additions thereto, including but not limited to all buildings, plants, works, structures, towers, antennas, fixtures, apparatus, materials, supplies, machinery, tools, implements, poles, posts, cross arms, conduits, ducts, lines, wires, cables, whether underground, overhead, or otherwise, exchanges, switches, including, without limitation, host and remote switches, desks, testboards, frames, racks, motors, generators, batteries, and other items of central office equipment, pay stations, protectors, instruments, connections and appliances, office furniture, equipment, and any and all other property of every kind, nature, and description, used, useful, or acquired for use by the Mortgagor in connection therewith, and including, without limitation, the following property: (a) The Existing Facilities located in the Counties listed in Schedule B in the States identified in Schedule B; (b) The real estate described on Schedule B,and by this reference made a part hereof, as if fully set forth at length at this point; (c) If the real estate described in Schedule B is by reference to deeds, grantor(s), grantee, etc., then the description of each of the properties conveyed by and through such deeds is, by reference, made a part of Schedule B as though fully set forth at length therein; and (d) The real estate described in Schedule B shall also include all plants, works, structures, erections, reservoirs, dams, buildings, fixtures, towers, antennas, and improvements now or hereafter located on such real estate, and all tenements, hereditaments, and appurtenances now or hereafter belonging, or in any way appertaining, thereunto. II 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 or operation by, or on behalf of, the Mortgagor of its properties, facilities, systems, or businesses, whether underground, overhead, or otherwise, wherever located; Page 3 00&005 III All right, title, and interest of the Mortgagor in, to, and under any and all licenses and permits (including without limitation those granted by the FCC), franchises, ordinances, and privileges, whether heretofore or hereafter granted, issued, or executed, to it or to its assignors by the Government, or by any state, county, township, municipality, village, or other political subdivision thereof, or by any agency, board, commission, or department of any of the foregoing, authorizing the construction, acquisition, or operation of the Mortgagor's properties, facilities, systems, or businesses, insotàr as the same may by law be assigned, granted, bargained, sold, conveyed, transferred, mortgaged, or pledged; IV All right, title, and interest of the Mortgagor in, to, and under all personal property and fixtures of every kind and nature, including without limitation all goods (such as inventory, equipment and any accessions thereto), instruments (such as promissory notes or chattel paper, electronic or otherwise), documents, accounts (such as deposit accounts or trust accounts pursuant hereto or to a loan agreement), letter-of-credit rights, investment property (such as certificated and uncertificated securities or security entitlements and accounts), software, general intangibles (such as payment intangibles), supporting obligations, contract rights or rights to the payment of money, insurance claims, and proceeds (as such terms are presently and hereafter defined in the UCC; provided, however, that the term "instrument" shall be such term as defmed in Article 9 of the DCC rather than Article 3); V All right, title, and interest of the Mortgagor or the Other Parties in, to, and under any and all agreements, leases or contracts heretofore or hereafter executed by and between the Mortgagor or the Other Parties and any person, fmn, corporation, or other corporate entity relating to the Mortgaged Property (including contracts for the lease, occupancy, or sale ofthe Mortgage Property, or any portion thereof); VI All right, title, and interest of the Mortgagor or the Other Parties in, to, and under any and all books, records and correspondence relating to the Mortgage Property, including, but not limited to, all records, ledgers, leases, computer and automatic machinery, software, programs, databases, disc or tape files, print-outs, batches, runs, and other electronically-prepared information indicating, summarizing, evidencing, or otherwise necessary or helpful in the collection or realization on the Mortgaged Property; VII Also, all right, title, and interest of the Mortgagor in, to, and under all other property, real or personal, tangible or intangible, of every kind, nature, and description, and wherever situated, now or hereafter owned or leased by the Mortgagor, it being the intention hereof that all such property now owned or leased 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; Together with all rents, income, revenues, proceeds, products, profits and benefits at any time derived, received, or had from any and all of the above-described property of the Mortgagor; Page 4 000006 Provided, however, that except as provided in section 2.12 of Article II herein, no automobiles, trucks, trailers, tractors or other vehicles (including without limitation aircraft or ships, if any) owned or used by the Mortgagor shall be included in the Mortgaged Property. TO HAVE AND TO HOLD all or in part the Mortgaged Property unto the Mortgagee and its respective assigns forever, to secure equally and ratably the payment of the principal and interest on the Notes, according to their tenor and effect, without preference, priority, or distinction as to interest, principal (except as otherwise specifically provided herein,) lien, or otherwise, of any note over any other note by reason of the priority in time of the execution, delivery, maturity, assignment, negotiation, or otherwise, thereof, and to secure the due perfonnance of the covenants, agreements and provisions herein and contained in the Loan Agreement, and for the uses and purposes and upon the tenns, conditions, provisos, and agreements herein expressed and declared. ARTICLE I ADDITIONAL NOTES SECTION 1.1 Additional Notes (a) The Mortgagor, when authorized by resolution(s) of its board of directors, members, or other relevant governing body, may from time to time execute and deliver to the Government one or more Additional Notes: (1) to evidence loans made or guaranteed by the Government to the Mortgagor pursuant to the Act, or to evidence indebtedness of the Mortgagor incurred by the assumption by the Mortgagor of the indebtedness of a third party, or parties to the Government, created by a loan or loans theretofore made or guaranteed by the Government to such third party or parties pursuant to the Act; and/or (2) to refund any Note(s) at the time outstanding secured hereby, or in renewal of, or in . substitution for, any such Note(s) then outstanding. (b) Additional Notes shall contain such provisions and shall be executed and delivered upon such terms and conditions as the Government and the board of directors, members, or other relevant governing body of the Mortgagor authorizing the execution and delivery thereof, shall prescribe; provided, however, that the outstanding principal balances owing on the Notes shall not at anyone time exceed the Mortgage Debt Limit set forth in Schedule A, and no Note shall mature more than fifty (50) years after the date hereof. Additional Notes, when and as executed and delivered, shall be secured by this Mortgage, equally and ratably with all other Notes then outstanding, without preference, priority, or distinction of any Note over any other Note by reason of the priority of the time of the execution, delivery, maturity, assignment, or negotiation thereof. As used in this Mortgage, the term "directors" includes trustees. SECTION 1.2 Supplemental Mortl!al!e The Mortgagor or each of the Other Parties, when authorized by resolution(s) of its board of directors, members, or other relevant governing body, may from time to time execute, acknowledge, deliver, record, and file mortgages supplemental to this Mortgage which thereafter shall fonn a part hereof, for the purpose of formally confIrming this Mortgage as security for the Notes. Page 5 ÜOv007 ARTICLE II PARTICULAR COVENANTS OF THE MORTGAGOR The Mortgagor and the Other Parties covenant with the Mortgagee and the holders of Notes secured hereby (hereinafter collectively the "Noteholders") as follows: SECTION 2.1 Authoritv to Execute and Deliver Notes. Prior Telephone Loan Contracts. the Loan A1!reement and Mort1!a1!e; All Action Taken; Enforceable Obli1!ations The Mortgagor and the Other Parties have all requisite corporate and legal power to enter into and perform their obligations under the Current RUS Note(s), the Loan Agreement and this Mortgage and to execute and deliver Additional Notes; and all official action on their part for the execution and delivery of the Current RUS Note(s), the Loan Agreement and this Mortgage has been duly and effectively taken; and the Current RUS Note(s), the Loan Agreement and this Mortgage are, or when executed and delivered will be, the valid and enforceable obligations of the Mortgagor and the Other Parties in accordance with their respective terms. SECTION 2.2 Warranty of Title (a) Except as disclosed in writing in the opinion of counsel, at the time of execution and delivery of this instrument, the Mortgagor and the Other Parties have good and marketable title in fee simple to the Mortgaged Property, free and clear of any deed of trust, mortgage, lien, charge, or encumbrance thereon or affecting the title thereto, except for the following Permitted Encumbrances: (i) as to the Mortgaged Property that is real property, restrictions, exceptions, reservations, conditions, limitations, interests, and other matters which are set forth or referred to in deeds or other conveyance documents, and each of which fits one or more of the clauses of this definition; provided however, that such matters do not in the aggregate materially detract from the value of the Mortgaged Property taken as a whole and do not materially impair the use of such property for the purposes for which it is held by the Mortgagor or any of the Other Parties; (ii) liens for taxes, assessments, and other governmental charges which are not delinquent; (iii) liens for taxes, assessments, and other governmental charges already delinquent which are currently being contested in good faith by appropriate proceedings; provided, the Mortgagor and the Other Parties shall have set aside on its books adequate reserves with respect thereto; (iv) mechanics', workmen's, repairmen's, materialmen's, warehousemen's and carriers' liens and other similar liens arising in the ordinary course of business for charges which are not delinquent, or which are being contested in good faith and have not proceeded to judgment; provided, the Mortgagor and the Other Parties shall have set aside on its books adequate reserves with respect thereto; Page 6 ûO&008 (v) liens in respect of judgments or awards with respect to which the Mortgagor or any of the Other Parties shall in good faith currently be prosecuting an appeal or proceedings for review and with respect to which the Mortgagor or any of the Other Parties shall have secured a stay of execution pending such appeal or proceedings for review; provided, the Mortgagor and the Other Parties shall have set aside on their books adequate reserves with respect thereto; (vi) easements and similar rights granted by the Mortgagor or any of the Other Parties over, or in respect of, any Mortgaged Property, provided that in the opinion of the Mortgagor's or the Other Parties' boards, members, other relevant governing bodies, or officials acceptable to RUS, such grant will not impair the usefulness of such property in the conduct of the Mortgagor's or any of the Other Parties' businesses and will not be prejudicial to the interests of the Mortgagee, and similar rights granted by any predecessor in title of the Mortgagor or the Other Parties; (vii) easements, leases, reservations, or other rights of others in any property of the Mortgagor or any of the Other Parties for streets, roads, bridges, pipes, pipe lines, railroads, electric transmission and distribution lines, telegraph and telephone lines, the removal of oil, gas, coal or other minerals and other similar purposes, flood rights, river control and development rights, sewage and drainage rights, restrictions against pollution and zoning laws and minor defects and irregularities in the record of title; provided, that the above do not materially affect the marketability of title to such property and do not in the aggregate materially impair the use of the Mortgaged Property taken as a whole for the purposes for which it is held by the Mortgagor or any of the Other Parties; (viii) liens upon lands over which easements or rights of way are acquired by the Mortgagor or any of the Other Parties for any of the purposes specified in Clause (vii) of this definition, securing indebtedness neither created, assumed, nor guaranteed by the Mortgagor or any of the Other Parties, nor on account of which it customarily pays interest, which liens do not materially impair the use of such easements or rights of way for the purposes for which they are held by the Mortgagor or the Other Parties; (ix) leases existing at the date of this instrument affecting property owned by the Mortgagor or any of the Other Parties at said date which have been previously disclosed to the Mortgagee in writing, and leases for a term of not more than two years (including any extensions or renewals) affecting property acquired by the Mortgagor after said date; (x) terminable or short term leases or permits for occupancy which expressly grant to the Mortgagor or any of the Other Parties the right to terminate at any time on not more than six months' notice and which occupancy does not interfere with the operation of the business of the Mortgagor; (xi) any lien or privilege vested in any lessor, licensor, or permittor for rent or other obligations or acts to be performed, the payment or performance of which other obligations or acts is required under leases, Page 7 ûO\)009 subleases, licenses or permits, so long as the payment of such rent or the performance of such other obligations or acts is not delinquent; (xii) liens or privileges of any employees of the Mortgagor or any of the Other Parties for salary or wages earned but not yet payable; (xiii) the burdens of any law, governmental regulation, or permit requiring the Mortgagor or any of the Other Parties to maintain certain facilities or to perform certain acts as a condition of the Mortgagor's or any of the Other Parties' occupancy of certain real estate, or prohibiting the interference with any public lands or any river or stream or navigable waters; (xiv) any irregularities in or deficiencies of title to any rights-of-way for pipe lines, telephone lines, telegraph lines, power lines or appurtenances thereto, or other improvements thereon, and to any real estate used or to be used primarily for right-of-way purposes; provided, that in the opinion of counsel for the Mortgagor and the Other Parties; (1) the Mortgagor and the Other Parties, as applicable, shall have obtained from the apparent owner of the lands or estates therein covered by any such right-of-way, a sufficient right, by the terms of the instrument granting such right-of-way, to the use thereof for the construction, operation, or maintenance ofthe lines, appurtenances, or improvements for which the same are used or to be used; or (2) the Mortgagor and the Other Parties, as applicable, have the power under eminent domain, or similar statutes, to remove such irregularities or deficiencies; (xv) rights reserved to, or vested in, any municipal, governmental, or other public authority to control or regulate any property of the Mortgagor or the Other Parties, or to use such property in any maImer, which rights do not materially impair the use of such property, for the purposes it is held by the Mortgagor or the Other Parties; (xvi) any obligations or duties affecting the property of the Mortgagor or the Other Parties, to any municipal, governmental, or other public authority with respect to any franchise, grant, license or permit; (xvii) any right which any municipal, governmental, or other public authority may have by virtue of any franchise, license, contract or statute (1) to purchase, (2) to designate a purchaser of, or (3) to order the sale of, any property of the Mortgagor or the Other Parties upon payment of cash or reasonable compensation therefor; or to terminate any franchise, license or other rights; or to regulate the property and business of the Mortgagor or the Other Parties; provided however, that nothing in this clause is intended to waive any claim or rights that the Government may otherwise have under federal laws; (xviii) any lien required by law or government regulation as a condition to the transaction of any business or the exercise of any privilege or license, or to enable the Mortgagor or any of the Other Parties to maintain self- insurance or to participate in any fund established to cover any insurance risks or in connection with workmen's compensation, unemployment insurance, old age pensions, or other social security, or to share in the privileges or benefits required for companies participating in such arrangements; provided however, that nothing in Page 8 ûOúOj.O this clause is intended to waive any claim or rights that the Government may otherwise have under federal laws; (xix) liens arising out of any defeased mortgage or indenture of the Mortgagor or the Other Parties; (xx) the undivided interest of other owners, and liens on such undivided interests, in property owned jointly with the Mortgagor or any of the Other Parties, as well as the rights of such owners to such property pursuant to the ownership contracts; and (xxi) this Mortgage. (b) The Mortgagor and each of the Other Parties warrants that it has good right and lawful authority to mortgage the Mortgaged Property (to the extent that such party has an interest in such property as listed on Schedule B) for the purposes herein expressed. (c) At the time of execution and delivery of this Mortgage, the Mortgagor lawfully owns and is possessed of the personal property described in the Granting Clauses herein, free and clear of any deed of trust, mortgage, lien, charge, or encumbrance thereon or affecting the title thereto, except Permitted Encumbrances. SECTION 2.3 Maintain Superior Lien of Mortl!al!e. After-Acquired Property. Further Assurances. Recordinl! (a) The Mortgagor and the Other Parties will, so long as any of the Notes shall be outstanding, maintain and preserve the lien of this Mortgage superior to all other liens affecting the Mortgaged Property, and will execute, file and/or record such financing statements, continuation statements, mortgages or other security instruments as necessary to maintain such superior lien and will forever warrant and defend the title to said property against any and all claims and demands whatsoever. (b) All property of every kind acquired by the Mortgagor after the date hereof, shall, immediately upon the acquisition thereof by the Mortgagor, and without any further mortgage, conveyance, or assignment, become subject to the lien of this Mortgage. Nevertheless, the Mortgagor will do, execute, acknowledge, and deliver any and all such further acts, conveyances, mortgages, security agreements, financing statements, and assurances as the Mortgagee shall require for accomplishing the purposes of this Mortgage. (c) The Mortgagor and the Other Parties will cause this Mortgage and all supplemental mortgages and other instruments of further assurance, including all fmancing statements covering security interests in personal property, to be promptly recorded, registered and filed, and will execute and file such financing statements and cause to be issued and filed such continuation statements, all in such manner and place as may be required by law, or requested by the Mortgagee, fully to preserve and protect the rights of the Mortgagee and Noteholders hereunder to the Mortgaged Property. SECTION 2.4 Nel!ative Pledl!e The Mortgagor and the Other Parties shall not create, incur, or suffer any lien, mortgage, pledge, assignment, or other encumbrance on, or security interest in, the Mortgaged Property, other than the Permitted Encumbrances. Page 9 SECTION 2.5 Payment of Taxes ÛOv01.1 The Mortgagor and the Other Parties will promptly payor discharge any and all obligations for which, or on account of which, any lien, claim, or charge against the Mortgagor's or any of the Other Parties' property might exist or could be created, and for any and all lawful taxes, rates, levies, or assessments imposed upon, or accruing upon, any of the Mortgagor's or any of the Other Parties' property (whether taxed to the Mortgagor or to any of the Other Parties or to any Noteholder), franchises, earnings, or businesses, as and when the same shall become due and payable; and whenever called upon to do so, the Mortgagor and the Other Parties will furnish to the Mortgagee or to any Noteholder adequate proof of such payment or discharge. SECTION 2.6 Payment of Notes and Secured Obli!!ations The Mortgagor will duly and punctually pay the principal and interest on the Notes, at the time, place, and manner provided therein, according to the true intent and meaning thereof, as well as all other sums becoming due hereunder. SECTION 2.7 Restrictions on Transfers of Proper tv Except as provided in Section 2.8 below, the Mortgagor and the Other Parties shall not sell, lease or transfer any Mortgaged Property to any other person or entity (including any subsidiary or affiliate of the Mortgagor or to any of the Other Parties) without the prior written consent of the Mortgagee. SECTION 2.8 Disposal of Obsolete or Dama!!ed Mortl!a!!ed Property So long as the Mortgagor is not in default hereunder, the Mortgagor may, without obtaining the consent of the Mortgagee or Noteholders, sell or otherwise dispose of, free from the lien hereof, any of its property which is neither necessary to, nor useful for, the operation of the Mortgagor's business, or which has become obsolete, worn out, damaged, or otherwise unsuitable for the purposes of the Mortgagor; provided, however, that the Mortgagor shall to the extent necessary: (l) replace the same with other property of the same kind and nature, or substitute thereof, which shall be subject to the lien hereof, free and clear of all prior liens, and apply the proceeds, if any, derived from the sale or disposition of such property, which are not needed for the replacement thereof, to the prepayment of the indebtedness on the outstanding Notes, and shall be applied to such notes and installments thereof as may be designated by the respective Noteholders at the time of any such receipt; (2) immediately upon the receipt of the proceeds of any sale or disposition of said property, apply the entire amount of such proceeds to the prepayment of the indebtedness evidenced by the Notes; or (3) deposit all or such pari of the proceeds derived from the sale or disposition of said property into such bank accounts as the Mortgagee shall specify, and shall use the same only for such additions to, or improvements in, the Mortgaged Property, on such terms and conditions as the Mortgagee shall specify. SECTION 2.9 Maintenance, Preservation and Operation of Mortl!a!!ed Property (a) At all times the Mortgagor and each of the Other Parties will maintain and preserve the Mortgaged Property in good repair, working order, and condition, and will, subject to contingencies beyond each such entity's reasonable control, keep its plant and properties in continuous operation, and from time to time make all needed and proper repairs, renewals, replacements, useful and proper alterations, additions, bettennents and improvements, and use all reasonable diligence to furnish the subscribers served by it through the Mortgaged Property with adequate telecommunications and broadband telephone service. (b) If in the sole judgment of the Mortgagee, the Mortgaged Property is not being maintained and repaired in accordance with paragraph (a) of this section, the Mortgagee may send the Mortgagor or any of the Other Parties a written report of needed improvements, upon receipt of which the Mortgagor and the Other Parties (to the extent that each such entity Page 10 ûOvO~2 has an interest in the subject property) will promptly undertake to accomplish such improvements. SECTION 2.10 Mortf!af!ed Property to be Purchased Free of Encumbrances Except as specifically authorized in writing in advance by the Mortgagee, the Mortgagor will purchase all materials, equipment, supplies, and replacements to be incorporated in, or used in connection with, the Mortgaged Property outright, and not subject to any conditional sales agreement, chattel mortgage, bailment lease, or other agreement reserving to the seller any right, title, or lien. SECTION 2.11 Insurance ReQuirements; Application of Insurance Proceeds (a) The Mortgagor shall take out and maintain insurance on the property acquired with the Loan in accordance with 7 C.F.R. Part 1788. (b) Sums recovered under any policy or fidelity bond by the Mortgagor or any Noteholder for a loss of funds advanced under the Notes or for any loss under such policy or bond shall, unless applied as provided in 7 C.F.R. Part 1788,. be used to finance construction of utility plant secured or to be secured by this Mortgage, or, unless otherwise directed by the Mortgagees, be applied to the prepayment of the Notes then outstanding, and shall be applied to such Notes and installments thereof as may be designated by the respective N oteholders at the time of receipt. At the request of the Mortgagee, the Mortgagor shall exercise such rights and remedies under such policy or fidelity 'bond as designated by the Mortgagee, and the Mortgagor hereby irrevocably appoints the Mortgagee as its agent to exercise such rights and remedies under such policy or bond as the Mortgagee may choose, and the Mortgagor shall pay all costs and reasonable expenses incurred by the Mortgagee in connection with such exercise. SECTION 2.12 When Mortf!ae:e Lien Attaches to Vehicles, Ships, Etc. In the event the Mortgagor has or suffers a deficit in Net Income or Net Margins, as such terms are defmed in the Loan Agreement, during any fiscal year while any of the Notes are outstanding, the Mortgagor will at any time, upon written demand of the Mortgagee, make, execute, acknowledge and deliver or cause to be made, executed, acknowledged, and delivered all such further and supplemental indentures of mortgages, security agreements, financing statements, instruments, and conveyances, and take or cause to be taken all such further action, as may be requested by the Mortgagee, in order to attach to this Mortgage, as Mortgaged Property, and to subject to all the terms and conditions of this Mortgage, all right, title, and interest of the Mortgagor in and to, all or in part, the automobiles, trucks, tractors, trailers, railcars, aircraft, ships, boats and other vehicles then or thereafter owned or acquired by the Mortgagor. Upon the making of such written demand. by the Mortgagee, such vehicles shall be deemed part of the Mortgaged Property for all purposes hereof. SECTION 2.13 Application of Proceeds from Eminent Domain In the event the Mortgaged Property, or any part thereof, shall be taken under the power of eminent domain, all proceeds and avails therefrom, except to the extent that all Noteholders shall consent to other use and application thereof, shall forthwith be applied by the Mortgagor: First, to the ratable payment of any indebtedness by this Mortgage secured other than principal or interest on the Notes; Second, to the ratable payment of interest which shall have accrued on the Notes and be unpaid; Third, to the ratable payment of, or on account of, the unpaid principal of the Notes and to such installments thereof as may be designated by the respective Noteholders at the time of any such payment; and if any, the balance shall be paid to whosoever shall be entitled thereto. Page 11 00&01.3 SECTION 2.14 Compliance with Loan Ae:reement The Mortgagor will well and truly observe and perform all applicable covenants, agreements, terms, and conditions contained in the Loan Agreement. SECTION 2.15 Government to be Noteholder At all times when any Note is held by the Government, or in the event the Government shall assign an Additional Note without having insured the payment of such Note, this Mortgage shall secure payment of such Note for the benefit of the Government or such uninsured holder thereof, as the case may be. Whenever any Additional Note may be sold to an insured purchaser, it shall continue to be considered a "Note" as defined herein, but as to any such insured Note, the Government, and not such insured purchàser, shall be considered and shall have the rights of the Noteholder for purposes of this Mortgage. Notice of the rights of the Government under the preceding sentence shall be set forth in all such insured Notes. As to any Note which evidences a loan made by a third party lender to the Mortgagor and guaranteed by the Government, acting through the Administrator, pursuant to the Act, the Government and not such third party lender shall be considered to be and shall have the rights of the Noteholder for purposes of this Mortgage. SECTION 2.16 Morte:ae:ee Right to Expend Monev to Protect Mortgae:ed Property If in any respect the Mortgagor or any of the Other Parties fails to comply with the covenants and conditions herein contained regarding the procuring of insurance, the payment of taxes, assessments, and other charges, the keeping of the Mortgaged Property in repair and free of liens and other claims, or to comply with any other covenant contained in this Mortgage or the Loan Agreement, the Mortgagee shall have the right, without prejudice to any other remedies arising by reason of such default: (1) to advance or expend moneys for the purpose of procuring such insurance, or for the payment of insurance premiums, taxes, assessments or other charges; (2) to save the Mortgaged Property from sale or forfeiture for any unpaid tax, assessment, or otherwise; (3) to redeem the same from any tax or other sale; (4) to purchase any tax title thereon; (5) to remove or purchase any mechanics' liens or other encumbrance thereon; (6) to make repairs thereon; (7) to comply with any other covenant herein contained; (8) to prosecute and defend any suit in relation to the Mortgaged Property; or (9) in any manner, to protect the Mortgaged Property and the title thereto. All sums so advanced for any of the aforesaid purposes with interest thereon at the highest legal rate, but not in excess of twelve percent (12%) per annum, shall be deemed a charge upon the Mortgaged Property in the same manner as the Notes are secured and shall be forthwith paid to the Mortgagee upon demand. It shall not be obligatory for the Mortgagee in making any such advances or expenditures to inquire into the validity of any such title, tax, assessment, sale, mechanics' lien, or other encumbrance thereof. ARTICLE III REMEDIES OF THE MORTGAGEE AND NOTEHOLDERS SECTION 3.1. Events of Default: Each of the following shall be an "Event of Default" under this Mortgage: (a) Representations and Warranties. Any representation or warranty made by the Mortgagor or any of the Other Parties in the Loan Documents, as such term is defmed in the Loan Agreement, or any certificate furnished to RUS thereunder or in the Application, as such term is defined in the Loan Agreement, shall prove to have been incorrect in any material respect at the time made; (b) Non-Pavment. The nonpayment of any required and due installment of interest on, or principal of, any Note, whether by acceleration or otherwise, which continues for five (5) Business Days, as such tenn is defmed in the Loan Agreement; Page 12 00\)01.4 (c) Corrective Actions. Default by the Mortgagor in the observance or performance of Section 5.13 of the Loan Agreement; (d) Limited Liability Companies. Default by the Mortgagor or its members in the observance or performance of Section 6.3 of the Loan Agreement; (e) Other Covenants. Default by the Mortgagor or any of the Other Parties in the observance or performance of any other covenant or agreement contained in any of the Loan Documents, which shall remain unremedied for thirty (30) calendar days, after written notice thereof had been given to the Mortgagor by RUS; (f) Adverse Effects. The Mortgagor shall forfeit or otherwise be deprived of its charter, articles of organization, franchises, permits, easements, consents, or licenses required to carry on any material portion of its business, or the Mortgagor files for, or an event occurs, which can reasonably be expected to result in its dissolution or termination; (g) Other Obligations. Default by the Mortgagor in the payment of any obligation, whether direct or contingent, for borrowed money in excess of ten thousand dollars ($10,000.00) or in the performance or observance of the terms of any instrument pursuant to which such obligation was created or securing such obligation which default shall have resulted in such obligation becoming or being declared due and payable prior to the date on which it would otherwise be due and payable; (h) Bankruptcy. A court having jurisdiction in the premises shall enter a decree or order for relief with respect to the Mortgagor in an involuntary case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect: (1) appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official, or (2) ordering the winding up or liquidation of its affairs; or the Mortgagor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian or trustee, of a substantial part of its property, or make any general assignment for the benefit of creditors; (i) Dissolution or Liquidation. Other than as provided in the immediately preceding subsection, the dissolution or liquidation of the Mortgagor, or the filing of such by the Mortgagor; (j) Impaired Business. The failure by the Mortgagor to promptly forestall or remove any execution, garnishment or attachment of such consequence as shall impair its ability to continue its business or fulfill its obligations and such execution, garnishment or attachment shall not be vacated within thirty (30) days; and (k) Payment of Final Judgment. A final judgment in an amount of ten thousand dollars ($10,000.00) or more shall be entered against the Mortgagor and shall remain unsatisfied or without a stay in respect thereoffor a period of thirty (30) days. SECTION 3.2 Acceleration of Maturity; Annulment of Acceleration (a) If any Event of Default has occurred and is continuing, the Mortgagee, and/or the N oteholders, may, by notice in writing to the Mortgagor and delivery of a copy thereof to the other Noteholders, if any, declare all unpaid principal and accrued interest on any or all of their respective Notes to be due and payable immediately; and upon any such declaration, all such unpaid principal and accrued interest shall immediately become due and payable, notwithstanding anything contained herein or in any Note to the contrary. Page I3 00ô01.5 (b) If after the unpaid principal and accrued interest on any of the Notes shall have been so declared to be due and payable, all payments in respect of principal and interest which have become due and payable by the terms of such Note(s) shall be paid to the respective Noteholders, and all other defaults hereunder and under the Notes shall have been made good or secured to the satisfaction of all of the Noteholders, the Noteholders which have declared the principal and interest on the Notes held by such Noteholders to be due and payable may, by written notice to the Mortgagor and delivery of a copy thereof to the other Noteholders, annul such declaration or declarations and waive such default(s) and consequences thereof, with such waiver not extending to or affecting any subsequent default or impairing any right consequent thereon. SECTION 3.3 Remedies of Mortl!al!ee If any Event of Default shall occur and continue, the Mortgagee, for itself, and as the agent of the other Noteholders, personally or by attorney, in its ortheir discretion, may, insofar as not prohibited by law: (a) (i) take immediate possession of the Mortgaged Property, (ii) collect and receive all credits, outstanding accounts, bills, receivables, rents, income, revenues, and profits of the Mortgagor or any of the Other Parties committing such default, pertaining to or arising from the Mortgaged Property, or any part thereof, and issue binding receipts therefor; and (iii) manage, control, and/or operate the Mortgaged Property as fully as the Mortgagor or the Other Parties might do if in possession thereof, including, without limitation, the making of all repairs or replacements deemed necessary or advisable. (b) act, and is hereby constituted and appointed by the Mortgagor and the Other Parties to act, as true and lawful attorney-in-fact of the Mortgagor or the Other Parties with full power to (i) notify or require the Mortgagor or Other Parties to notify any and all customers that the Mortgaged Property has been assigned to Mortgagee and/or that Mortgagee has a security interest in the Mortgaged Property; (ii) sign and endorse the name of the Mortgagor upon any notes, checks, acceptances, drafts, money orders, or other instruments of payment (including payments made under any policy of insurance) that may come into possession of Mortgagee, or upon any invoice, freight or express bill, bill of lading, storage or warehouse receipt, assignment, verification, or notice in connection with receivables, all in full or part payment of any amount owing to any Noteholder; (iii) send requests for verifications of Mortgaged Property to customers or account debtors; (iv) sell, assign, sue for, collect, or compromise payment of all or any part of the Mortgaged Property in the name of the Mortgagor or the Other Parties, or in its own name, or make any other disposition of Mortgaged Property, or any part thereof, for cash, credit, or any combination thereof; and Mortgagee may purchase all or any part of the Mortgaged Property at public or, if permitted by law, private sale, and in lieu of actual payment of such purchase price may set off the amount of such price against amounts owing to said Mortgagee; Mortgagee, is hereby granted, as the attorney-in-fact of the Mortgagor and Other Parties, full power of substitution and full power to do any and all things necessary to be done in and about the premises fully and effectually as the Mortgagor and the Other Parties might or could do but for this appointment, and hereby ratifying all that said attorney-in-fact shall lawfully do or cause to be done by virhle hereof. The Mortgagee, its employees, or agents shall not be liable for any act, omission, error of judgment, or mistake offact or law in its capacity as attorney-in-fact. This power of attorney is coupled with an interest and shall be irrevocable during the term of this Mortgage so long as any Notes shall remain outstanding'; , (c) proceed to protect and enforce the rights of the Mortgagee and the rights of the Noteholder(s) under this Mortgage by suits or actions in equity or at law in any court of competent jurisdiction, whether for specific performance of any covenant or any agreement contained herein, for aid of execution of any power herein granted, for Page 14 ÜOv01.6 foreclosure hereunder, for sale of the Mortgaged Property, or any part thereof, for collection of debts hereby secured, or for enforcement of other appropriate legal or equitable remedies as may be deemed most effectual to protect and enforce the rights and remedies herein granted or conferred; and in the event any such action or suit is instituted, the Mortgagee or Noteholder(s) instituting such action or suit shall have the right to have appointed a receiver of the Mortgaged Property and of all rents, income, revenues, and profits pertaining thereto, or arising, derived, received, or had therefrom, from the commencement of such suit or action. 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; (d) sell or cause to be sold the Mortgaged Property, all or in part, and all right, title, interest, claim, and demand of the Mortgagor or the Other Parties therein or thereto, at public auction in any county in which the property to be sold is located, at such time, place, and manner as may be specified in the notice of sale, containing a brief general description of the property to be sold, giving a copy thereof to the Mortgagor and the Other Parties (to the extent that each such entity has an interest therein) by mail at least fifteen (15) days prior to the date fixed for such sale, and 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 ifno 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 made under this subparagraph may be adjourned from time to time by announcement, at the time and place appointed for such sale or adjourned saJe(s); and without further notice or publication the sale may be had at the time and place to which the same shall be adjourned; provided, however, that in the event another or different notice of sale or another or different marmer of conducting the same shall be required by law, the notice of sale shall be given or the sale shall be conducted, as the case may be, in accordance with the applicable provisions of law. The expenses incurred by the Mortgagee, including but not limited to receiver's fees, attorneys' 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; (e) enter and/or remain upon the premises of the Mortgagor without any obligation to pay rent to the Mortgagor, the Other Parties, or others, or any other place(s) where any of the Mortgaged Property is located and kept, and: (i) remove the Mortgaged Property therefrom in order to maintain, collect, sell, and/or liquidate the Mortgaged Property or, (ii) use such premises, together with materials, supplies, books, and records of the Mortgagor and the Other Parties, to maintain possession and/or the condition of the Mortgaged Property, and to prepare the Mortgaged Property for sale, liquidation, or collection. Mortgagee may require the Mortgagor to assemble the Mortgaged Property and make it available to Mortgagee at a place to be designated by Mortgagee; (f) Mortgagee shall have the right, without prior notice to the Mortgagor, to exercise rights of setoff, recoupment, or any counterclaim and apply any and all amounts held or hereafter held by Mortgagee, owed to the Mortgagor, or for the credit of the Mortgagor, against any and all of the Notes. Mortgagee agrees to notify the Mortgagor promptly after any such setoff or recoupment and the application thereof; provided that the failure to give such notice shall not affect the validity of such setoff, recoupment or application. Mortgagor waives all rights of setoff, deduction, recoupment, or counterclaim; and/or (g) Mortgagee shall have, in addition to any other rights and remedies contained in this Mortgage, and in any other agreements, guarantees, notes, mortgages, instruments, and Page 15 ÜOô01.7 documents heretofore, now, or at any time hereafter executed by the Mortgagor or the Other Parties and delivered to Mortgagee, all of the rights and remedies of a secured party under the UCC in force in the state identified in the first paragraph hereof as of the date hereof and any other jurisdiction where the Mortgaged Property is located, all of which rights and remedies shall be cumulative, and nonexclusive. SECTION 3.4 Rie:ht to Purchase Morte:ae:ed Property At any sale hereunder any Noteholder(s) shall have the right to bid for and purchase the Mortgaged Property, or such part thereof as shall be offered for sale, and any Noteholder(s) may, in lieu of actual payment of the purchase price, set off against the purchase price the amount owing to said Noteholder secured hereunder and such set off amount shall be credited as a payment on account of principal and interest on the Note(s) held by such Noteholder(s). SECTION 3.5 Application of Proceeds from Remedial Actions Any proceeds or 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: First, to the payment of indebtedness hereby secured other than the principal or interest on the Notes; Second, to the ratable payment of interest which shall have accrued on the Notes and which shall be unpaid; Third, to the ratable payment of, or on account of, the unpaid principal of the Notes, and the balance, if any, shall be paid to whomsoever shall be entitled thereto. SECTION 3.6 Notice of Default The Mortgagor covenants that it will give immediate written notice to the Mortgagee and to all Noteholders of the occurrence of an Event of Default, or in the event that any right or remedy described in Sections 3.2,3.3,3.4, or 3.5 of this Article III is exercised or enforced, of any action taken tó exercise or enforce any such right or remedy. SECTION 3.7 Remedies Cumulative. No Election Every right or remedy herein conferred upon or reserved to the Mortgagee or to the Noteholder(s) shall be cumulative and shall be in addition to every other right and remedy given hereunder, or now or hereafter existing at law, in equity, or by statute. The pursuit of any right or remedy shall not be construed as an election. SECTION 3.8 Waiver of Appraisement Rie:hts, Marshaline: of Assets Not Required Each of the Mortgagor and the Other Parties, for themselves and for all who may claim through or under them, covenants that it will not at any time insist upon or plead, or in any manner whatsoever, claim or take the benefit or advantage of, any appraisal, 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 fmal and absolute putting into possession thereof, immediately after such sale, of the purchaser(s) thereat, and each of the Mortgagor and the Other Parties, for itself and for all who may claim through or under it, hereby waives the benefit of all such laws, unless such waiver shall be forbidden by law. Under no circumstance shall there be any marshalling of assets upon any foreclosure or other enforcement of this Mortgage. SECTION 3.9 Federal Communications Commission Matters Notwithstanding any other provision of this Mortgage, the following provisions shall be applicable in the event that the Mortgaged Property includes (to the extent such property can be included under the applicable law) licenses, permits, or similar rights granted by the Federal Communications Commission (hereinafter referred to as the "FCC") to the Mortgagor (such licenses, pennits or similar rights hereinafter referred to as "FCC Licenses:") Page 16 ûOû01.S (a) Any loss, revocation, foreclosure on, sale, transfer, or other disposition of FCC Licenses by the Mortgagee shall be pursuant to Section 31 O( d) of the Communications Act of 1934, as amended, and 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 Mortgagee may request in order to transfer and assign to the Mortgagee, or to such one or more third parties as the Mortgagee may designate, or to a combination of the foregoing, each FCC License held by the Mortgagor. The Mortgagee 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 Mortgagee to seek from the FCC an involuntary transfer of control of each such FCC License 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 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. (c) The Mortgagor acknowledges that the assignment, transfer, loss, or revocation of any FCC License is integral to the Mortgagee's 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 and that such failure would not be adequately compensable in damages, and therefore agrees, without limiting the rights of the Mortgagee to seek and obtain specific performance of other obligations of the Mortgagor coiltained in this Mortgage, that the agreements contained in this Section may be specifically enforced. (d) In accordance with the requirements of 47 C.F.R. Section 22.937, or any successor provision thereto, the Mortgagee shall notify the Mortgagor and the FCC in writing at least ten (10) days prior to the date on which the Mortgagee intends to exercise its rights under this Mortgage or any other document or instrument relating to the Notes, by foreclosing on, or otherwise disposing of any Mortgaged Property in connection with which such notice is required pursuant to 47 C.F.R. Section 22,937 or any successor provision thereto. ARTICLE IV POSSESSION UNTIL DEFAULT-DEFEASANCE CLAUSE SECTION 4.1 Possession until Default Until one or more of the Events of Default has occurred, the Mortgagor and the Other Parties shall be pennitted to retain achlal possession of the Mortgaged Property, and to manage, operate and use the same and any part thereof, with the rights and franchises appertaining thereto, and to collect, receive, take, use and enjoy the Page 17 ûOû01.9 rents, revenues, issues, earnings, income, products, and profits thereof or therefrom, subject to the provisions of this Mortgage. SECTION 4.2 Defeasance If the Mortgagor shall payor cause to be paid the whole amount of the principal and interest on the Notes at the time and manner therein provided, according to the true intent and meaning thereof, and shall also payor cause to be paid all other sums payable hereunder by the Mortgagor and shall well and truly keep and perform according to the true intent and meaning of this Mortgage, all covenants herein required to be kept and performed by it, then and in that case, all property, rights, and interests hereby conveyed, assigned, or pledged shall revert to the Mortgagor and the Other Parties, and the estate, right, title and interest of the Mortgagee and the Noteholders shall thereupon cease, determine, and become void and the Mortgagee and the Noteholders, in such case, on written demand of the Mortgagor or the Other Parties, but at the Mortgagor's or the Other Parties' cost and expense, shall enter satisfaction of this Mortgage upon the record. In any event, each Noteholder, upon payment in full to him by the Mortgagor of all principal and interest on any Note held by him, and the payment and discharge by the Mortgagor of all charges due such Noteholder hereunder, shall execute and deliver to the Mortgagor such instrument of satisfaction, discharge, or release as shall be required by law in the circumstances. ARTICLE V MISCELLANEOUS SECTION 5.1 Morteaee to Bind and Benefit Successors and Assiens All of the covenants, stipulations, promises, undertakings, and agreements herein contained by, or on behalf of, the Mortgagor and the Other Parties shall bind their respective successors and assigns, whether so specified or not, and all titles, rights, and remedies hereby granted to, or conferred upon, the Mortgagee shall pass to and inure to the benefit of the successors and assigns of the Mortgagee and shall be deemed to be granted or conferred for the ratable benefit and security of all who shall from time to time be the holders of Notes executed and delivered as herein provided. SECTION 5.2 Headine:s The descriptive headings of the various articles 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 5.3 Notices All demands, notices, reports, approvals, designations, or directions required or pennitted to be given hereunder shall given or made in writing (including, without limitation, by telecopy) and delivered to the intended recipient at the "Address for Notices" specified in Schedule "A;" or, as to any party, at such other address as shall be designated by such party in a notice to each other party. All such communications shall be deemed to have been duly given when transmitted by telecopier or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as provided for herein. The Addresses for Notice of the respective parties are set forth in Schedule" A." SECTION 5.4 Mort!!ae:e Deemed Security Ae:reement To the extent that any of the property described or referred to in this Mortgage is governed by the provisions of the uee, this Mortgage is hereby deemed a "security agreement" under the DeC. The mailing address of the Mortgagor, as debtor, of the Mortgagee as secured party, and of each of the Other Parties, are as set forth in Schedule "A." Page 18 SECTION 5.5 Mortl!al!ee Ril!ht to File Financinl! Statements 00û020 Mortgagee shall have the right to file such financing statements and continuation statements on behalf of itself, as secured party, the Mortgagor, as Debtor, and any of the Other Parties, as Debtors, as Mortgagee deems necessary to perfect a first lien on the Mortgaged Property and to maintain and preserve such perfected first lien as long as any Note remains outstanding. Mortgagor shall reimburse the Mortgagee for any expenses incurred in the exercise of this right. SECTION 5.6 Severability Cause If any provision of this Mortgage shall for any reason be found or held invalid or unenforceable by any governmental agency or court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity, legality, and enforceability of the remainder of such provision nor any other provision thereof and this Mortgage shall survive and be construed as if such invalid or unenforceable provision had not been contained therein. SECTION 5.7 Indemnification bv Mortl!al!or of Mortl!al!:ee The Mortgagor and the Other Parties agree to indemnify the Mortgagee against any liability or damages which it may incur or sustain in the exercise and perfonnance of its rightful powers and duties hereunder (arising in connection with each such party's property). For such reimbursement and indemnity, the Mortgagee shall be secured under this Mortgage in the same manner as the Notes and all such reimbursements for expense or damage shall be paid to the Mortgagee with interest at the rate specified in Section 2.16 hereof. The Mortgagor's and the Other Parties' obligation to indemnify the Mortgagee under this section shall survive the satisfaction of the Notes, the reconveyance or foreclosure of this Mortgage, the acceptance of a deed in lieu of foreclosure, or any transfer or abandonment of the Mortgaged Property. IN WITNESS WHEREOF, ALL WEST COMMUNICATIONS, INC., as Mortgagor, has caused this Mortgage to be signed in its name and its seal, if any, to be hereunto affixed and attested by its duly authorized officer, the UNITED STATES OF AMERICÎ' as Mortgagee and secured arty, has caused this Mort age to be duly executed on its behalf, and each of J! I Wf2st I~~, \r¡ (. . , 'Nt· IdA"'!) tI c. J , IIIa'nd -M\~l2St ~\ ~+ l)\t. has caused this Mortgage to be duly executed 0 its behalf, all as of the da and y r first above writte . I (Seal) . . Q :¡ Attested to bY~/I/l/A.J.:i' ,i'J¿.:L,Æ- S~eta Executed by the Mortgagor in the presence of: . NamW, \9}~ ~-~ Name: Page 19 (Seal) ) .JJ- 15(jJj~Y3 f<!jß()(ß I Sceary Attested to by: Executed by the Mortgagor in the presence of: ~d Name: _~~ ...... ,.__.... ..... Name: ~~ g. Attostod to bYÐ~/1J1ít.~ 'N pit ire ry Executed by the Mortgagor in the presence of: ~¡/'> c9 ~J7¿~, Name: ¡I I~' Name: ÜOÛ'02t Page 20 ~~ n, Att"'ed to bY~;£ I;},VGdf' S et ry Executed by the Mortgagor in the presence of: ffl;( c:;àø~Á Name: f/ J '. ....... ¿~.. Name: (Seal) ß. Att,,'edtobY/8~~ ~.I.æÔTt . e retary Executed by the Mortgagor in the presence of: Nam?<3Y } 01'l¿-< rfl·~··· ~¡ =--- Name: ûOû022 Page 21 Acting Administrator 00&0.23 Page 22 DISTRICT OF COLUMBIA ) SS ûOô024 J11is instrument was acknowledged before me on 711 ~ _"8 , 2r/J ~ by James ~:;Ne,wby, Acting Administrator of the Rural Utilities Service of the United States of America. ~0yaA!o!£qJ 1frr/4- cNbtarý'~~W1~:;;;:j~:t\ ~:¡ ""1, '<" C" ....:.:!~;;;~-' 'I ,t "1 '. \ , ,. ~'_.'" c/:' My commission expires: cg ---I -(90 / ¿?- STATE OF UTAH COUNTY OF íJ..Jc-zJi.¡{"ì5+w1 ) ) ) SS 00&025 I certify that on this , 2009, the foregoing instrument was acknowledged before me, , a Notary Public in and for the above-named County and State, and that , to me personally known and the person whose name is signed to the regoing instrument, did personally appear before me, who being duly sworn and de. posed according to la:Vl\ did\ make proof to my satisfaction and say that he/she was, at the time of execution thereof, the 1\(pl:'\~ [Position] of All West Communications, Inc., a Utah corporation, that he/she knows the corporate seal of said entity, if one exists, and that the foregoing instrument, whose contents are known to him/her, was signed, sealed, and delivered on behalf of said entity by authority and/or Resolution of its board of directors, manager, or members, and furthennore acknowledged the instrument to be his/her free and voluntary act and deed, as well as that of the entity, for the purposes and uses therein set forth. IN WITNESS WHEREOF, sworn and subscribed before me, I have hereunto set my hand and official seal. (Notarial Seal) NOTARY PUBLIC CINDY WALTERS 865 W. Telegraph St. Washington, IJlah 84780 My CO~67i;%~~ fXPir&3 STATE OF UTAH My Commission expires: ¿(tS(;¿o(/ 24 STATE OF UTAH COUNTY OF VVc,J~(I'\~ ) ) ) SS 00&026 I certify that on this 10 day of , 2009, the foregoing instrument was acknowledged before me, ~tL , a Notary Public in and for the above-named County and State, and that L14J Y\ '1 OPe, \ , to me personally known and the person whose name is signed to the foregoing instrument, did personally appear before me, who being duly sworn and deposed according to law, did ¡nake proof to my satisfaction and say that he/she was, at the time of execution thereof, the' 1f~S\U"'.k [Position] of All West/Utah, Inc., a Utah corporation, that he/she knows the corporate seal of said entity, if one exists, and that the foregoing instrument, whose contents are known to him/her, was signed, sealed, and delivered on behalf of said entity by authority and/or Resolution of its board of directors, manager, or members, and furthermore acknowledged the instrument to be his/her free and voluntary act and deed, as well as that of the entity, for the purposes and uses therein set forth. IN WITNESS WHEREOF, sworn and subscribed before me, I have hereunto set my hand and official seal. (Notarial Seal) NOTARY PUBLIC CINDY WALTERS 865 W Telegraph St. Washington, Otah 84760 My commission Explre3 06/15/2011 STATE OF UTAH {~w~ Notary ubhc My Commission expires: blls IdOLI 25 STATE OF-IDAIro UhvV) COUNTY OF vJCt6~1\ I\tö~'Î ) ) ) SS ûOû027 I certify that on this ~ day of }4lJ'L-V\ , 2009, the foregoing instrument was acknowledged before me, t~~ ~k.1 ~i ' a Notary Public in and for the above-named County and State, and that N.. h fb<? ' to me personally known and the person whose name is signed to the foregoing instrument, did personally appear before me, who being duly sworn and deposed according to law, di~ make proof to my satisfaction and say that he/she was, at the time of execution thereof, the ~(Q.C;\A.u\..\r [Position] of All West/Idaho, Inc., an Idaho corporation, that he/she knows the corporate seal of said entity, if one exists, and that the foregoing instrument, whose contents are known to him/her, was signed, sealed, and delivered on behalf of said entity by authority and/or Resolution of its board of directors, manager, or members, and furthermore acknowledged the instrument to be his/her free and voluntary act and deed, as well as that of the entity, for the purposes and uses therein set forth. IN WITNESS WHEREOF, sworn and subscribed before me, I have hereunto set my hand and official seal. ~$rfl.Ð---- (Notarial Seal) NOTARY PUBLIc;, CARLA DEMILLE 20 N Bluff Street S George Utah 64770 Mt Commission Expires YDecember 26, ~ot 1 STATE OF Ul A H Notary Public My Commission expires: !A\ß-tf [~/I 26 STATE OF WYOMING UhLV) ) ûOô02S COUNTY OF W~5ht'tì'J \011 ) ) SS I certify that on this I () day of , 2009, the foregoing instrument was acknowledged before me, Cë-;J...C\. (j{>4 , a Notary Public in and for the above-named County and State, and that , to me personally known and the person whose name is signed to he foregoi g instrument, did personally appear before me, who being duly sworn and deposed according to law, did make proof to my satisfaction and say that he/she was, at the time of execution thereof, the '1n~\c\<tv\.\- [position] of All West/Wyoming, Inc., a Wyoming corporation, that he/she knows the corporate seal of said entity, if one exists, and that the foregoing instrument, whose contents are known to him/her, was signed, sealed, and delivered on behalf of said entity by authority and/or Resolution of its board of directors, manager, or members, and furthermore acknowledged the instrument to be his/her free and voluntary act and deed, as well as that of the entity, for the purposes and uses therein set forth. IN WITNESS WHEREOF, sworn and subscribed before me, I have hereunto set my hand and official seal. (N otarial Seal) NOTARY I'UßUc. 1 A DL::MILU: C~~N Bluit S\re~~770 51 George.< ~itg~ E<pires My ~~~:b~r ?6.~O'1 ~T¡\TL:: 0\' U 'All ~J 1!ß;f)t- Notary Public My Commission expires: 1& \ ~(þ \;Wll 27 STATE OF eR:EGüN uht.~ COUNTY OF v)wJ'\,'/\C;) tat1 ) ) ) SS ûOû029 I certify that on this -1Q. day of~..J1 , 2009, the foregoing instrument was acknowledged before me, ~~iÀ ~~} , a Notary Public in and for the above-named County and State, and that ~- , to me personally known and the person whose name is signed t' the foreg ing instmment, did personally appear before me, who being duly sworn and deposed according to law, did make proof to my satisfaction and say that he/she was, at the time of execution thereof, the t~ Qc;\A..RJ~\:k [Position] of All West Capital Management, Inc., an Oregon corporation, that he/she knows the corporate seal of said entity, if one exists, and that the foregoing instrument, whose contents are known to him/her, was signed, sealed, and delivered on behalf of said entity by authority and/or Resolution of its board of directors, manager, or members, and furthermore acknowledged the instrument to be his/her free and voluntary act and deed, as well as that of the entity, for the purposes and uses therein set f01ih. IN WITNESS WHEREOF, sworn and subscribed before me, I have hereunto set my hand and official seal. ~ Notary Public (Notarial Seal) NOTARY PUBLIC CARLA DEMILLE 20 N Bluff Streel 81 George, Utah 84710 My Commission Expires December 26, 2011 STATE OF UTAH My Commission expires: t J..( étCf tao l ~ 28 SCHEDULE A OOv030 1. . The Loan Agreement referred to in the Recitals is the Loan Agreement, dated the same date as this Mortgage between the Mortgagor and the Mortgagees. 2. The Current RUS Note(s), made by the Mortgagor to the Government, dated the same date as this Mortgage and referred to in the Recitals are: RUS Designation: Utah 514-B43 All West Stated Principal Amount: $45,131,000 Interest Rate: Variable Maturity Date: November 6,2027 RUS Designation: Utah 514-B43 All West * Stated Principal Amount: $3,680,000 Interest Rate: To Be Determined Maturity Date: November 6, 2027 RUS Designation: Utah 514-B43 All West * Stated Principal Amount: 24,200,000 Interest Rate: To Be Determined Maturity Date: November 6, 2027 *Note: This note evidences a loan from the Federal Financing Bank, which has been guaranteed by RUS, giving RUS all the rights as Noteholder for the purposes of this Mortgage. 3. The "Mortgage Debt Limit" referred to in section 1.1 is $100,000,000 4. The following addresses are for purposes of Sections 5.3 and 5.4: Mortgagee: Rural Utîlitie~ Service United States Department of Agriculture 1400 Independence Avenue, S.W. Washington, D.C.20250-1500 Attention: Administrator Fax: (202) 720-1725 With a copy to: Rural Utilities Service United States Department of Agriculture 1400 Independence Avenue, S.W. Stop 1597, Room No. 2808 Washington, D.C. 20250-1597 Attention: Mr. Ken B. Chandler, Director Fax: (202) 205-2921 Mortgagors: All West Communications, Inc. 50 West 100 North Kamas, Utah 84036 Attention: Ms. Lynne Pappas Fax: (435) 783-4928 29 All WestlUtah, Inc. 50 West 100 North Kamas, Utah 84036 Attention: Ms. Lynne Pappas Fax: (435) 783-4928 OOô03:1: All West/Wyoming, Inc. 50 West 100 North Kamas, Utah 84036 Attention: Ms. Lynne Pappas Fax: (435) 783-4928 All West/Idaho, Inc. 50 West 100 North Kama~, Utah 84036 Attention: Ms. Lynne Pappas Fax: (435) 783-4928 All West Capital Management, Inc. 50 West 100 North Kamas, Utah 84036 Attention: Ms. Lynne Pappas Fax: (435) 783-4928 With a copy to: Callister, Nebeker, & McCullough 10 East South Temple, Suite 900 Salt Lake City, Utah 84133 Attention: Mr. Stephen Mecham Fax: (801) 364-9127 30 SCHEDULE B 00ô032 1. The "Existing Facilities" referred to in Granting Clause I are located in the RICH, SALT LAKE and SUMMIT counties in the State of Utah, LINCOLN and UINTA counties in the State of Wyoming, ADA county in the State Idaho, and LINN county in the State of Oregon. 2. The real estate mortgaged and pledged hereunder includes the following: List of Real Property Owned by the Company Account No. Description Tract No. K.211 1.06 Grotepas Land 1 K.2111.00 Kamas Land 2,3,5 K.2111.01 Van Tassell Land 4 K.2111.04 Hoyt Land 6 K.2111.05 Holt Land 7 K.2111.1 0 Oakley Land 8 K.2111.40 Lewis Park Land 9 K.2111.30 Woodland Land 10 K.2111.20 Pine Mountain Land 11 K.2111.02 Hanes Land 12,13 K.2111.03 Lumber Store Property 14 K.2111.70 Ensign Peak Land 15 R.2111.00 Clark Land 16,17 R.2111.00 Randolph Land 19 W.2111.00 Woodruff Land 20 W.2111.01 Wamsley Land 21 V.2111.00 Coalville Land 22 C.2111.00 Cokeville Land 23 C.2111.10 Evanston Land 24 NON-REGULATED 0.2111.00 Evanston Land 25 CLEC - All West/Wyoming, Inc. U.2110.03 Grassy Creek Land 26 Video - All West/Utah, Inc. S.2110.02 Salt Lake Land 27 Call Center - All West Communications, Inc. B.2110.01 Boise Land 28 Call Center - All West/Idaho, Inc. F.2110.00 Lulay Road Land 30 Farm - All West Capital Management, Inc. 31 Tract One 006033 The following described tract ofland in Summit County, State of Utah: BEGINNING at a point which is 100 feet North from the Southeast comer of Block 41, Kamas Townsite Survey; and running thence West 197.5 feet; thence North 40 feet; thence East 197.5 feet; thence South 40 feet; thence to the place of BEGINNING. Tract Two The following described tract ofland in Summit County, State of Utah: BEGINNING at the Southwest comer of Lot 4, Block 41, KAMAS TOWNSITE SURVEY; thence East 7.5 rods; thence North 100 feet; thence West 7.5 rods; thence South 100 feet to the point of beginning. Tract Three The following described tract of land in Summit County, State of Utah: Commencing at the Southeast Comer of Lot 4, Block 41, KAMAS TOWNSITE SURVEY; and running thence North 100 feet; thence West 7.5 rods; thence South 100 feet; thence East 7.5 rods to the poÎJ;lt of beginning. Tract Four The following described tract ofland in Summit County, State of Utah: BEGINNING at a point 155.75 feet East of the Southwest comer of Lot 1, Block 41, KAMAS TOWNSITE SURVEY; and running thence East 91.75 feet; thence North 247.5 feet; thence West 91.75 feet; thence South 247.5 feet to the point of BEGINNING. EXCEPTING THEREFROM the following described property. Commencing 155.75 feet East of the Southwest comer of Lot 1, Block 41, KAMAS TOWNSITE SURVEY, and running thence East 12 feet; thence North 15 rods; thence West 12 feet; thence South 15 rods to the place of beg inning. Page 32 000034 Tract Five The following described tract ofland in Summit County, State of Utah: COMMENCING at a point 150 feet North of the Southeast comer of Block 41, Kamas Townsite Survey, and running thence North 65.5 feet, thence West 15 rods; thence South 65.5 feet, thence East 15 rods to the place of beginning, said property being situated in Section 17, township 2 South, range 6 East, Salt Lake Base and Meridian. LESS and Excepting thererrom the following described parcel: Beginning at a point which is North 140 feet ITom the Southwest comer of Lot 4, Block 41 of the Kallas Townsite Survey and running thence North 75.5 feet, thence East 50 feet thence South 75.5 feet West 50 feet to the point of beginning. Tract Six The following described tract ofland in Summit County, State of Utah: BEGINNING at a point which is North 140 feet rrom the Southwest comer of Lot 4, Block 41 ofKamas Townsite Survey and running thence North 75.5 feet; thence East 50 feet; thence South 75.5 feet; thence West 50 feet to the point of beginning. Tract Seven The following described tract of land in Summit County, State of Utah: BEGINNING at a point 100 feet North rrom the Southwest comer of Lot 4, Block 41, KAMAS TOWNSITE SURVEY, and running thence North 40 feet; thence East 50 feet; thence South 40 feet; thence West 50 feet to the point of beginning. Tract Eight The following described tract of land in Summit County, State of Utah: Located approximately 111 degrees 18 ' West Longitude and 40 degrees 43 ' North Latitude. A part of the Northwest \I.¡ of the Southwest \I.¡ of Section 20, Township 1 South, Range 6 East of the Salt Lake Base and Meridian, U.S. Survey. Beginning at a point which bears 460.73 feet and North 37.76 feet ITom the Southwest comer of the said Northwest I¡4 of the Southwest Y4 of Section 20 and running thence North 5 degrees 0' West 50.0 feet; thence North 80 degrees 04' East 94.0 feet; thence South 5 degrees 0' East 44.0 feet; thence South 73 degrees 38' West 95.0 feet to the point of beginning. Tract Nine The following described tract of land in Summit County, State of Utah: COMMENCING at North 86°14' East along the section line 2574.0 feet ITom the Northwest comer of Section 3, Township 1 North, Range 4 East, Salt Lake Base & Meridian; thence North 86°14' East along said section line 208.94 feet; thence South 208.94 feet; thence South 86°14' West 208.94 feet; thence North 208.94 feet to the point of beginning. Page 33 Tract Ten The following described tract ofland in Summit County, State of Utah: ÜOû035 ALL of Lot 29 WOODLAND HILLS Subdivision, according to the official plat thereof, recorded in the office of the County Recorder of Summit County, Utah, excepting therefrom the following: BEGINNING at a point North 541.84 feet and West 1588.87 feet from the Southeast comer of Section 2, Township 3 South, Range 6 East, Salt Lake Base and Meridian, and mnning thence North 38°00' West 367.96 feet to a point on a 380.00 foot radius curve to the right, the center of which bears North 26°44 '25" West from said point; thence Southwesterly along the arc of said curve 20.515 feet; thence South 38°00' East 250.795 ft; thence South 52°00' West 101.38 feet to a point of a 100 foot radius curve to the left; thence Southerly along the arc of said curve 244.57 feet; thence North 35°28'32" East 193.485 feet to the point of beginning. ALSO EXCEPTING therefrom that portion vested in Summit County which is embraced by the dedicated roadways. Tract Eleven The following described tract of land in Summit County, State of Utah: Beginning at a point which is South 00°07'05" East 497.68 feet along the Section line and West 3944.65 feet from the Northeast comer of Section 33, Township 1 North, Range 7 East, Salt Lake Base and Meridian (said Section comer is the original stone); and running thence North 79°54'14" East 105.00 feet along an existing fence line which marks the South right-of-way line of a county road; thence South 00°56'46" West 105.67 feet; thence South 79°54'14" West 105.00 feet; thence North 00°56'46" East 105.67 feet along an existing fence to the point of beginning. Tract Twelve The following described tract ofland in Summit County, State of Utah: Beginning at the Southeast comer of Lot 3, Block 44, KAMAS TOWNSITE, and running thence West 7 rods; thence North 54 feet; thence East7 rods; thence 54 feet to the point of beginning. Tract Thirteen The following described tract ofland in Summit County, State of Utah: LOT 4, BLOCK 44, KAMAS TOWNSITE SURVEY, according to the official plat thereof on file and of record in the Summit County Recorder's Office. EXCEPTING THEREFROM any portion of the above described property lying within the bounds of the following: Beginning at a point which is West 141.48 feet from the Southeast comer of Block 44, KAMAS TOWNSITE SURVEY, and running thence West 229.77 feet; thence North 195.62 feet, more or less, to the Southerly line of the Weber-Provo Diversion canal; thence North 52°39'01" East 85.51 feet along said canal; thence East 161.04 feet to an existing fence line; thence South 00°10'27" East 247.50 feet along said fence line to the point of Beginning. Page 34 Tract Fourteen ÚOû03G The following described tract ofland in Summit County, State of Utah: Beginning at a point which is 167.5 feet South of the Northeast comer of Lot 3, Block 41, Kamas Townsite Survey; thence West 78 feet; thence South 25 feet; thence West 23 feet; thence South 84 feet; thence East 101 feet; thence North 109 feet to the point of beginning. Tract Fifteen The following described tract ofland in Salt Lake County, State of Utah: Beginning at a point which is on the west line of American Telephone and Telegraph Company's property, said property being on file at the Salt Lake County Recorders Office, Book 1470, Page 455, said point of beginning also being South 15°47'31" East 3079.80 feet and South 50.00 feet from the North Ij.¡ Comer, a stone, of Section 24, Township 1 North, Range 1 West, Salt Lake Base & Meridian. (Base of bearing being North 89°54'52" East 2633.78 feet between said Ij.¡ Comer and the Northeast comer, a brass cap, of said Section 24); Thence south along said West line of American Telephone and Telegraph Company's property 104.355 feet; Thence West 104.355 feet; thence North 104.355 feet; Thence East 104.355 feet to the point of BEGINNING. Tract Sixteen The following described tract ofland in Rich County, Utah: Part of Lot 5, Block 29, RANDOLPH CITY SURVEY, described as follows: Beginning at the Southwest corner of said Lot 5, Block 29, RANDOLPH CITY SURVEY and running thence East 10 rods 4 feet; thence North 155 feet; thence West 10 rods 4 feet; thence South 155 feet to the place of beginning. Tract Seventeen The following described tract ofland in Rich County, Utah: Commencing at a point 7 rods South and 6 rods West of the Northeast Comer of Lot 5, Block 29, Randolph City Survey, and running thence North I rod; thence West 3 rods, 12 feet; thence South 1 rod, thence East 3 rods, 12 feet to the place ofbegirming. . Tract Eighteen Duplicate of Tract 17. Please omit. Tract Nineteen The following described tract of land in Rich County, Utah: Part of Lot 4, Block 29, RANDOLPH CITY SURVEY, described as follows: Beginning at a point 4 rods North of the Northeast comer of Lot 1, Block 29, Randolph City Survey and running thence North 4 rods; thence West 6 rods; thence North 2 rods, thence West 14 rods; thence South 6 rods, thence East 20 rods to the place ofbegirming. Page 35 Tract Twenty ûOû037 The following described tract of land in Rich County, Utah: A parcel ofland situated within the Town of Woodruff, Utah; said parcel being located in Lot 2 of Block 10 of the Woodruff City Survey and being more particularly described as follows: Commencing at the Southeast comer of said Block 10 and running thence North 00°01 '09" East, 265.82 feet along the East line of said Block 10 to the point of beginning of the parcel herein described, thence North 89°58'51" West 50.00 feet; thence North 0°01'09" East 50.00 feet; thence South 89°58'51" East 50.00 feet, to the East line of said Block 1 0, thence South 0°0 1'09 West, 50.00 feet along the East line of said Block 10 to the point of beginning. Tract Twenty One The following described tract ofland in Rich County, Utah: Commencing at a point 266 feet North from the Southeast corner of Block 10 of the Woodruff City Survey, and running thence South 50 feet; thence West 50 feet; thence North 50 feet; thence East 50 feet to the place of beginning. Tract Twenty Two The following described tract of land in Summit County, Utah: Beginning N 66°30' E 5 rods from the SW corner of Block 79 Plat B County Survey; thence N 66°30' E 5 rods; N 23°30' W 3.88 rods, S 66°30' W 5 rods; S 23°30' E 3.88 rods to beginning. Tract Twenty Three The following described tract ofland in Lincoln County, Wyoming: The westerly one hundred thirty feet of the Lot Numbered Two of the Stoner-Kinney Addition to the Town of Cokeville, Lincoln County, Wyoming and being a parcel ofland 130 feet x 170 feet, as surveyed, platted and recorded. Tract Twenty Four .The following described tract ofland in Uinta County, Wyoming: Commencing at the SW comer of Section 20, thence S 89°15'23", E 1397.17' along the south line thereof; thence N 29°24'13" West 100 feet; thence N 60°35'47" East, 60 feet; thence S 29°24' 13" East, 107.42 feet to a point lying on the North line of Cheyenne Drive. NON-REGULATED REAL PROPERTY Tract Twenty Five The following described tract of land in Uinta County, Wyoming: Lot 10 in Block 1 of the Evanston Industrial Center Addition, to the City of Evanston, Uinta County, Wyoming. Page 36 Tract Twenty Six ÜOó03S The following described tract ofland lying within the bounds ofKamas City, Summit County, Utah: Commencing at the North quarter comer of Section 17, Township 2 South, Range 6 East, SL base and meridian, and from said point thence South 0°08' East 688 feet; thence South 60°26' East 1155.5 feet; thence South 21 °56' West 319.6 feet; thence South 60°44' East 1257 feet, thence North 0°54' West 407.9 feet, thence North 89°10' East 115.2 feet; thence North 499 feet; thence East 499 feet; thence North 1259.8 feet; thence West 2590.5 feet to the place of beginning. Tract Twenty Seven The following described tract ofland in Salt Lake County, Utah: All oflots 22, 23, 24 and 25, amended Plat of Block 5 Thorndyke Subdivision, according to the official plat thereof, recorded in the office of the County Recorder of said County, State of Utah. Tract Twenty Ei!?:ht The following described tract ofland in the City of Boise, Ada County, Idaho: Beginning at the north quarter of Section 8, Township 3 North, Range 2 East, Boise Meridian; thence East on the section line a distance of 9.11 feet to the intersection of the centerline of Orchard Avenue; thence South along the centerline of Orchard Avenue 52.6 feet, to the intersection of the South line of State Highway No. 30; thenceEasterly along the South line of State Highway No. 30, a distance of25 feet to the East line of Orchard Avenue, the Real Point of Beginning; thence South 89°27' East along the South line of Highway No. 30, a distance of 154 feet; thence South parallel with the East line of Orchard Avenue a distance of 150 feet; thence North 89°27' West parallel with the South line of Highway No. 30, a distance of 154 feet to the East line of Orchard A venue, thence North along the East line of Orchard Avenue a distance of 150 feet to the true point of beginning. Tract Twenty Nine Purposely omitted. Tract Thirty The following described tract ofland is in Linn County, Oregon: Beginning at the quarter section comer between Section 16 and 17 in Township 10 South, Range 1 East of the Willamette Meridian, said comer being also on the South line of the William Bilyeu Donation Land Claim No. 39; thence North 87°45' West 300.87 feet; thence NOIih 50°01' West along the center line ofa County Road 1680.00 feet; thence North 20°34' West along said road 667,71 feet; thence North 44°58' West along said road 833,93 feet; thence North 30°10' West along said road 273.31 feet to a point in the center of Neal Creek which is North 4.83 feet and east 88.48 feet from the quarter section corner between sections 8 and 17 in said township and range; thence Easterly following up the center of said creek to the West line of Donation Land Claim No. 39; thence North 1390 feet to the North line of Lot 5 in Section 8 of said Township and Range; thence East 4230.6 feet to the Northeast corner of Lot 1 in Section 9; thence South 3970.56 feet to the Southeast comer of Donation Land Claim No. 39; thence West 2640 feet to the place of beginning. List of Leases or Licensine: A !reements to which the Company is a Party 1. Telecommunications Licensing Agreement between Kearns Building Joint Venture (Licensor) and All West Communications (Licensee) dated April 1, 2006. Page 37 00&039 Initial Tenn: 60 months. Address: 136 South Main Street, Salt Lake City, Utah 84101. 2. Lease Agreement between Summit County Development Company (Lessor) and All West Communications, Inc. (Lessee) dated September 1,2006. Tenn: 3 years, September 1,2006 - September 1,2009. Address: 21 South Main, Coalville, Utah. 3. Capacity Lease Agreement between Qwest Corporation (Lessee), Silver Star Telephone Company, and All West Communications Inc. (Lessors) for fiber optic capacity dated August 22, 2002. Tenn: 10 years. Lease ofOC-48 fiber optic facility from Teton County, Wyoming to Evanston, Wyoming. List of Equipment Leases to which the Company is a Party 1. Lease of Mailing System (Folder/Inserter, Mail Machine and Scale, Meter) between Pitney Bowes (Lessor) and All West Communications, Inc. (Lessee) dated March 19,2007. Tenn: 54 months. Equipment located at Company's headquarters in Kamas, Utah. 2. Lease of Taqua Switching Equipment, Miscellaneous Equipment, and Related Equipment between Farm Credit Leasing (Lessor) and All West Communications, Inc. dated October 25, 2004 and made a part of a Lease Agreement dated July 7, 2004. Option to purchase at the end ofthe lease period. Tenn: 5 years. 3. Lease of Astria Video Head End between Key Equipment Finance (Lessor) and All West Communications, Inc. (Lessee) dated December 9,2003. Option to purchase at the end of the lease period. Tenn: 48 months. Page 38