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Home My WebLink About968800This instrument prepared by and upon recording return to: Sutherland Asbill Brennan LLP 999 Peachtree Street NE Suite 2300 Atlanta, Georgia 30309 -3996 Attention: Kevin A. Thomas, Esq. Phone: 404 853 -8000 Cross Reference: Receiving Number 944933 Book 713, Page 866 Lincoln County Clerk, Wyoming 19786546.1 4 RECEIVED 12/31/2012 at 4:08 PM RECEIVING 968800 BOOK: 801 PAGE: 746 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY THIS FIRST AMENDMENT TO REAL ESTATE MORTGAGE AND SECURITY AGREEMENT, dated as of December 7, 2012 (hereinafter called this "Amendment is made between UNION TELEPHONE COMPANY (hereinafter called the "Mortgagor a corporation existing under the laws of the State. of Wyoming, having a mailing address at P.O. Box 160, 850 North Highway 414, Mountain View, Wyoming 82939, and CoBANK, ACB, a federally chartered instrumentality of the United States, having a mailing address at 5500 South Quebec Street, Greenwood Village, CO 80111, in its capacity as Administrative Agent on behalf of the Secured Parties under the Credit Agreement "Mortgagee WHEREAS, the Mortgagor and Mortgagee and certain lenders are parties to that certain Credit Agreement, dated as of October 29, 2008 (as previously amended, restated, supplemented or otherwise modified, the "Existing Credit Agreement pursuant to which such lenders extended certain financial accommodations to Mortgagor with a Maximum Debt Limit of $170,000,000.00; WHEREAS, in connection with the Existing Credit Agreement Mortgagor has previously executed and delivered to Mortgagee that certain Real Estate Mortgage and Security Agreement, dated as of October 29, 2008, and recorded on January 28, 2009, as Receiving Number 944933 in Book 713, Page 866, with the County Clerk of Lincoln County, Wyoming (as amended, restated, extended, renewed or otherwise modified from time to time, the "Mortgage WHEREAS, Secured Parties, at the request of Mortgagor, have agreed to, among other things, refinance outstanding balances due under the Existing Credit Agreement with a new Maximum Debt Limit of $171,750,000 and accordingly amended and restate the Existing Credit Agreement pursuant to that certain Amended and Restated Credit Agreement, dated on or about the date hereof (together with all amendments, restatements, refinancings and other modifications, if any, from time to time thereafter made thereto, the "Credit Agreement 00747 WHEREAS, in order to further secure the obligations of the Mortgagor to the Mortgagee under the Credit Agreement, the Mortgagor and the Mortgagee are entering into certain amendments and/or amendments and restatements of the Loan Documents; WHEREAS, as a condition precedent to the execution and delivery of the Credit Agreement, the Mortgagor is required to execute and deliver this Amendment for the benefit of the Mortgagee to secure the payment and performance of the Obligations. NOW, THEREFORE, for and in consideration of the good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagor and the Mortgagee hereby agree to amend the Mortgage as follows: 1. Definitions. The Mortgage is hereby amended to make the recitations and contents thereof consistent with the recitations and terms of this Amendment, and is further amended to provide that all references herein and in the Mortgage to defined terms, including, without limitation, the "Credit Agreement the "Loan Documents the "Maximum Debt Limit the "Mortgage the "Obligations and the "Secured Obligations" shall hereafter be references to such terms as they are modified and amended in the manner described in this Amendment, or as required to be consistent therewith. 2. Mortgaged Property. The property subject to this First Amendment to Real Estate Mortgage and Security Agreement is defined in Section 2.01 of the Mortgage, which descriptions are incorporated herein by this reference. 3. No Default. Mortgagor hereby represents, covenants and warrants to Mortgagee that no Event of Default, or event which with the passage of time, giving notice, or both, would constitute and Event of Default has occurred. 4. Representations and Warranties. Mortgagor hereby remakes, reaffirms and republishes its representations, covenants, warranties, agreements and continuing obligations set forth in the Mortgage, including, but not limited to, those set forth in Article III of the Mortgage. 5. No Novation. THE PARTIES DO NOT INTEND THIS AMENDMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY ANY OF THE PARTIES UNDER OR IN CONNECTION WITH THE CREDIT AGREEMENT, NOTES AND /OR ANY OF THE OTHER LOAN DOCUMENTS. FURTHER, THE PARTIES DO NOT INTEND THIS AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO AFFECT IN ANY WAY THE PRIORITY OF ANY OF LENDERS' LIENS AND SECURITY INTERESTS IN ANY OF THE MORTGAGED PROPERTY. 6. No Defenses. Mortgagor hereby acknowledges, confirms and warrants to the Mortgagee that, as of the date of this Amendment, Mortgagor has absolutely no defenses, rights of set -off, claims or counterclaims against the Mortgagee arising out of or in any manner connected with the Mortgage or any of the other Loan Documents. Mortgagor hereby unconditionally releases the Mortgagee from all liability, claims and /or causes of action in 19786546.1 0 4 connection with the Mortgage, the other Loan Documents and any other matter related or connected with the Mortgaged Property accruing in favor of Mortgagor prior to the date hereof and which is known, or should have been known, by Mortgagor. 7. Headings and Capitalized Terms. Such capitalized terms above and all other capitalized terms not defined herein have the respective meanings ascribed to them in the Mortgage as hereby amended. 8. Counterparts. This Amendment may be executed in multiple counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same instrument. 9. Ratification. Mortgagor and Mortgagee hereby ratify and confirm the terms of the Mortgage, as amended by this Amendment. In the event of a conflict between the terms of the Mortgage and the terms of this Amendment, the terms of this Amendment shall control. 19786546.1 [Signatures on next page] IN WITNESS WHEREOF, Union Telephone Company, as Mortgagor, has caused this Amendment to be signed in its name by its officer thereunto duly authorized, all as of the day and year first above written. STATE OF WYOMING COUNTY OF UINTA My commission expires: ��a�►/�o /c County of Residence: Wyoming UNION TELEPHONE COMPANY, Mortgagor Prin Ti By: e: tiOe �d Name: John Vice President SS ody d Chief Executive Officer 00749 On this 3 'day of December, 2012, before me appeared John G. Woody, to me personally known, who, being by me duly sworn, did say that he is the Vice President and Chief Executive Officer of Union Telephone Company, a Wyoming corporation, and that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and said John G. Woody acknowledged said instrument to be the free act and deed of said corporation. ve hereunto set my hand and affixed my official seal in and year in first above written. IN WITNESS WHEREOF, COBANK, ACB, in its capacity as Administrative Agent on behalf of the Secured Parties under the Credit Agreement, as Mortgagee, has caused this Amendment to be signed in its name by its officer thereunto duly authorized, all as of the day and year first above written. STATE OF COLORADO COUNTY OF ARAPAHOE Wyoming COBANK, ACB, as Administrative Agent, Mortgagee 0 0 r 0. Notary Public ,c4i niggibrk xpires: -4 x014 '''''iii,,I'►'�'� County of Residence: I cRl\ B y' 17 44 4 .4 Printed Namt. Lennie la keslee Title: Vice President SS The foregoing instrument was acknowledged before me by Lennie Blakeslee, Vice President of CoBank, ACB, a federally chartered instrumentality of the United States this 4 day, \£dJ,acgmber, 2012. .......J 4 i�`iln m 13a and official seal. aE'IINItle L. FOLEY