Loading...
HomeMy WebLinkAbout20075606S.A.S E.. ~'~ IVU~~IYAGES~ C~+QrRP. pocT~ix.r Fncx;e SELL FEES ~---F-~ ~~ PD . OO CK~ 5'O.~ CHC ACCTA RST F/E/{~E~S: CASH' RO.ll. CKC REC'B./ - . RETURN„~~ " " ~ . o~M:u2~1 NE ~PsoB IVRIIIDI~III~N~NIfl' as-6-~~. NUM: ~/I~frO ~wb RD COMP: X li,Qi /~.f7 - COMPARE: ~4~! CADAS: - AO .~ ADAMS COUNTY, NE INST.NO.~5bU6 Date%?-~B-o~Time~.~M TER OFF DE~ . 1ZESERV ~ D F012 REGISTER OF DEEDS RECORDING SPACE ADAMS COUNTY NE PAGE 1 OF „~q .PAGES ;. ~; . .try, ~~ , ~oo~r5sos DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING From N.E. COLORADO CELLULAR, INC. (Mortgagor/Trustor) to ~CS1RIiSKA. ~ ~ ~mMr,~l (Trustee) in favor of RBS.CITIZENS, NATIONAL ASSOCIATION, as Agent (Agent) Dated as of ,~ur~f_ 10 , 200JIi ', Property Location: Hastings North County of Adams, State of Nebraska i After recording please return to: Goodwin Procter LLP 53 State Street . Boston, Massachusetts 02109 Attention: Edward Matson Sibble, Jr., Esq. Ref. No.: 018415.157266 LIBDl1704049.6 aot~9 ,, , 20~"15fi0~ TABLE OF CONTENTS Paec Background .............................................................................:...:..................................................1 Granting. Clauses ....................................................................:...................... .......r:........................2 Terms and Conditions ..................................:...............................:............... 1 .................................4 . Warranty of Title ..................................................................... ........:........................4 2. .Payment o£ Lender Obligations .............................................. .................................5 3. Requirements .......................................................................... .................................5 4. I'ayrnent of Taxes and Other Impositions .................:............. .................................5 5. Insurance ................................................................................. .................................6 6. Restrictions; Negative Covenants ........................................... .................................7 7. Transfer Restrictions ......................................:.......................: .................................7 8. Condemnation/Eminent Domain Proceeds; Casualty Losses . .................................7 9. Leases ...................................................................................... .................................8 10. IZep ai r ...................................................................................... ................................. 8 11. liurther Assurances .................................................................. .................................8 12. Agent's Riglit to Perform .........................::..................:.......... .................................8 13. Events of Default .................................................................... .................................9 14. Remedies ................................................................................. .................................9 15. lZight of Agent to Credit Sa]e .................................................. ............................... l ] 16. Appointment of Receiver .........:............................................... ..............................12 17. Extension, Release, etc ............................................................ ..............................12 18. Security Agreement under Uniform Commercial Code .......... ..............................13 19. Future Advances ..................................................:................... ..............................13 20. Assignment of Rents ................................................................ ..............................13 21. Additional Rights ..................................................................... ..............................14 22. Mortgagor's Indemnities .......................................................... ......................... .. 14 23. No Liability of Agent ............................................................... . .. ..............................15 24. Notices .:................................................................................... ..............................15 25. No Oral Modif cation ............................................................... ......... 15 26. Partial Invalidity; Usury Savings Clause ................................. ..................... ..............................16 27. Mortgagor's Waiver of Rights ................................................. ..............................16 28. Remedies Not Exclusive .......................................................... ..............................16 29. Multiple Security ..................................................................... ..............................17 30: Successors and'Assigns ............................................................ ..............................18 31. No Waivers, etc ........................................................................ ..............................18 32. Governing Law, etc .................................................................. ..............................19 33. Certain Defnitions ................................................................... .........................:....19 34. Certain Matters Relating to Mortgaged Property ..................... ..............................19 35. Satisfaction of Prior Encumbrance .......................................... ..............................20 .. ~~) i.i i~oi i ~o»oa. i ,~ ofaZ9 ~~,~. { 200`75606 36. Inconsistency with Credit Agreements ..................................................................20 37. Loan and Credit Agreements ...............................................................:.................21 38. No Partnership .......................................................................................................21 39. Headings ................................................................................................................22 40. Defense of Claims .....................................................................:............................22 41. Exculpation Provisions ..........................................................................................22 42. Counterparts; Selected Legal Descriptions ............................................................22 43. Termination ............................................................................................................22 Schedule A -Description of the Land a 6` z r 11:; 'r. I,IDD/1907304.1 (ii) 200'75606 DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE FILING THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING, dated as of June 10,2005 is made by N.E. COLORADO CELLULAR, INC., a Colorado corporation ("Mortgagor"), whose mailing address is 40 Lone Street, Marshfield, MA 02050, Telecopier No. 781-837=4000, Attention: Michael J. Umano, Vice President, and Kent R: Radke, whose mailing address is c/o Nebraska Title Company, 60th and Old Cheney Road, Suite 300 Lincoln, NE 68506, as trustee(;Trustee"), for the benefit of RBS CITIZENS, NATIONAL ASSOCIATION, a national banking association, as agent for each of the Lenders from time to time party to the Credit ahd Guaranty Agreements (as hereinafter defined) (in such capacity, together with its successors and assigns in such capacity, "Agent"), whose address is 28 State Street, 13`x' Floor, Boston, MA 02109 Telecopier No. 617- 723-9364, Attention: William M. Barnes, Senior Vice President. Any and all references herein to this "Deed of Trust" shall mean this Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing, and any and all renewals, modifications, amendments, supplements, extensions, consolidations, substitutions, spreaders and replacements of this Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing. Back rg ound A. Mortgagor, and Agent, are parties to (a) that certain Credit and Guaranty Agreement, dated as of June 10,2005 (as amended, supplemented or otherwise modified from time to time, the "ICE Credit Agreement") by and among Mortgagor, the guarantor parties thereto from time to time, the lenders parties thereto from time to time (the Lenders") and Agent and (b) that certain Credit and Guaranty Agreement, dated as of June 10,2005 (as amended, supplemented or otherwise modified from time to time, the "NEC Credit Agreement" and together with the ICE Credit Agreement, the "Credit Agreements" by and among NE Colorado Cellular, Inc. ("NEC"), the guarantor parties thereto from time to time, the Lenders and the Agent. The terms of the Credit agreements are incorporated by reference in this Deed of Trust as if the terms thereof were fully set forth herein. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to such terms in each Credit Agreement. B. Pursuant to the Credit Agreements, the Lenders have severally agreed to make loans to Mortgagor and ICE in the aggregate principal amount of $30,000,000 (the "Loans"), upon the terms subject to the conditions set forth in the Credit Agreements. C. Mortgagor will derive substantial direct and indirect benefit from Loan. D. Mortgagor is the owner of the fee simple estate in the parcel(s) of real estate (as defined in Neb. Rev. Stat. § 76-201) described on Schedule A attached hereto and made a part hereof (the "Land") all of the buildings, improvements, structures and fixtures now or subsequently located on the Land (collectively, the "Improvements"; the Land and the Improvements being collectively referred. to herein as the "Real Estate"). i LIBD/1907304.1 $~pJdG ~oo7~soo E. It is a condition precedent to the obligation of the Lenders to make the Loans to the Mortgagors and ICE under the Credit Agreements that Mortgagor shall execute and deliver this Deed of Trust to the Trustee for the benefit of the Lenders. Granting Clauses For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagor agrees that, to secure the payment and performance of the Lender Obligations, as defined in Section I.1 of each Credit Agreement: MORTGAGOR, IN CONSIDERATION OF THE INDEBTEDNESS AND THE TRUST CREATED BY THIS INSTRUMENT, HEREBY IRREVOCABLY GRANTS, BARGAINS, ASSIGNS; TRANSFERS AND CONVEYS UNTO TRUSTEE, IN TRUST, WITH POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION AS FURTHER DESCRIBED HEREIN, FOR THE USE AND BENEFIT OF THE LENDERS, ALL OF THE MORTGAGOR'S ESTATE, RIGHT, TITLE AND INTEREST IN ANY AND ALL OF THE FOLLOWING DESCRIBED PROPERTY INCLUDING: (a) the Land as more fully described on Schedule A attached hereto and made apart hereof; (b) all right, title and interest Mortgagor now has or may hereafter acquire in and to the Improvements (as hereinafter defined) or any part thereof (including the telecommunications tower and equipment related thereto), and all the estate, right, title, claim or demand whatsoever of Mortgagor, in possession or expectancy, in and to the Real Estate or any part thereof; (c) all right, title and interest of Mortgagor in, to and under all easements, rights of way, licenses, operating agreements, abutting strips and gores of land, streets, ways, alleys, passages, sewer rights, waters, water courses, water and flowage rights, development rights, air rights, mineral and soil rights, plants, standing and fallen timber, and all estates; rights, titles, interests, privileges, licenses, tenements, hereditaments and appurtenances belonging, relating or appertaining to the Real Estate, and any reversions, remainders, rents, issues, profits and revenue thereof and all land lying in the bed of any street, road or avenue, in front of or adjoining the Real Estate to the center line thereof; (d) all of the fixtures, chattels, business machines, machinery, apparatus, equipment, furnishings, fittings, appliances and articles of personal property of every kind and nature whatsoever (including, but not limited to, all equipment and personalty connected with the operation of each cellular tower and/or any other Improvements), and all appurtenances and additions thereto and substitutions or replacements thereof (together with, in each case, attachments, components, parts and accessories) currently owned or subsequently acquired by Mortgagor and now or subsequently attached to, or contained in or used or usable in any way in connection with any operation or letting of the Real Estate, including but without limiting the generality of the foregoing, all screens, awnings, shades, blinds, curtains, draperies, artwork, carpets, rugs, storm doors a11d windows, furniture and furnishings, heating, electrical, and mechanical equipment; lighting, switchboards, plumbing, ventilating, air conditioning and air- 2 LIDD/1907304.1 (~ o~~L9 240'75606 cooling apparatus, refrigerating, and incinerating equipment, escalators, elevators, loading and unloading equipment and systems, stoves, ranges, laundry equipment, cleaning systems (including window cleaning apparatus), telephones, communication systems (including satellite dishes and antennae), televisions, computers, sprinkler systems and other fire prevention and extinguishing apparatus and materials, security systems, motors, engines, machinery, pipes, pumps, tanks, conduits, appliances, fittings and fixtures of every kind and description (all of the foregoing in this paragraph (d) being collectively referred to herein as the "E ui ment"); (e) all right, title and interest of Mortgagor in and to all substitutes and replacements of, and all additions and improvements to, the Real Estate and the:Equipment, subsequently acquired by or released to Mortgagor or constructed, assembled or placed by Mortgagor on the Real Estate, immediately upon such acquisition; release, construction, assembling or placement, including, without limitation, any and all building materials whether stored at the Real Estate or offsite, and, in each such case, without any further deed, conveyance, assignment or other act by Mortgagor; (f) all right, title and interest of Mortgagor in, to and under all leases, subleases, underlettings, concession agreements, royalty leases, management agreements, licenses and other agreements relating to the use or occupancy of the Real Estate or the Equipment or any part thereof, now existing or subsequently entered into by Mortgagor and whether written or oral and all guarantees of any of the foregoing (collectively, as any of the foregoing may be amended, restated, extended, renewed or modif ed from time to time, the ""Tower Leases"), and all rights of Mortgagor in respect of cash and securities deposited thereunder and the right to receive and collect the revenues, income, rents, issues and prof is thereof, together with all other rents, royalties, issues, profits, revenue, income and other benefits arising from the use and enjoyment of the Mortgaged Property (as defined below) (collectively, the "Rents"); (g) all unearned premiums under insurance policies now or subsequently obtained by Mortgagor relating to Mortgagor's interest in the Real Estate or Equipment and Mortgagor's interest in and to all proceeds of any such insurance policies (including title insurance policies) including the right to collect and receive such proceeds, subject to the .provisions relating to insurance generally set forth below or as otherwise expressly set forth in the Credit Agreement; .and all awards and other compensation, including the interest payable thereon and the right to collect and receive the same, made to the present or any subsequent owner of the Real Estate or Equipment for the taking by eminent domain, condemnation or otherwise, of all or any part of the Real Estate or any easement or other right therein; (h) to the extent not prohibited under the applicable Tower Lease, contract, consent, license or other item unless the appropriate consent has been obtained, all right, title and interest of Mortgagor in and to (i) all contracts from time to time executed by Mortgagor or any manager or agent on its behalf relating to the ownership, construction, maintenance, repair, operation, occupancy, sale or financing of the Real Estate or Equipment or any part thereof and all agreements and options relating to the purchase, use or lease of any portion of the Real Estate or any property which is adjacent or peripheral to the Real Estate, together with the right to exercise such options and all leases of Equipment, (ii) all consents, licenses, building permits, certificates of occupancy and other governmental approvals relating to construction, completion, .. 3 LI13D/1907304.1 0 f oZ tJ7,S 20075606 occupancy, use or operation of the Real Estate or any part thereof, and (iii) all drawings, plans, specifications and similar or related items relating to the Real Estate; and (i) all proceeds, both cash and noncash, of the foregoing. (All of the foregoing property and rights and interests now owned or held or subsequently acquired by Mortgagor and described in the foregoing clauses (a) through (d) are collectively referred to as the "Premises", and those described in the foregoing clauses (a) through (1) are collectively referred to as•the "Mortgaged Property"). TO HAVE AND TO HOLD WITH MORTGAGE COVENANTS the Mortgaged Property and the rights and privileges hereby-mortgaged unto Agent, its successors and assigns for the uses and purposes set forth herein and in the Credit Agreements, WITI-I POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION AS FURTHER DESCRIBED HEREIN, forever, and Mortgagor does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to the Mortgaged Property unto Agent against every Person whomever lawfully claiming or to claim the same or any part thereof, until the Lender Obligations are fully paid and performed. TO HAVE AND TO HOLD the same, together with all and singular the privileges and appurtenances thereunto belonging: In trust nevertheless, that in case of default in the payment pursuant to the Credit Agreements, or any part thereof; or in the payment of the interest thereon or other amounts due thereunder, according to the tenor and effect of said Credit Agreements, or in the payment of any prior encumbrances, principal or interest, if any, or in case default shall be made in or in case of .violation or breach of any of the terms, conditions, covenants of agreements herein contained the Agent hereunder or the legal holder of the indebtedness secured hereby may declare a violation of any of the covenants here contained and may elect to advertise said Mortgaged Property for sale, and demand such sale by filing a notice of election and demand for sale with the Trustee according to the provisions of Section 14(b) of this instrument. This Deed of Trust covers present and future advances and re-advances, in the aggregate amount of the Lender Obligations made by the Lenders for the benefit of Mortgagor and ICE, and the lien of such future advances and re-advances shall relate back to the date of this Deed of Trust. Terms and Conditions Mortgagor further represents, warrants, covenants and agrees with and for the benefit of Agent and the Lenders as follows: 1. Warranty of Title. Mortgagor warrants that it leas good record title in fee simple the Real Estate, and good title to the rest of the Mortgaged Property, subject only to the liens and security interests described in Schedule 5.13 of each Credit Agreement ("Permitted Liens") and any matters which would be revealed by an accurate survey of the Mortgaged Property. Mortgagor shall warrant, defend and preserve such title and the lien of this Deed of Trust against all claims of all persons and entities. Mortgagor represents and warrants that it has the lawful authority to grant, bargain, sell, assign, transfer, mortgage and convey afirst-power lien and security interest in all of the Mortgaged Property to Agent in the manner and form herein 4 LIl3ll/1907304. I ~ ate q 2oo~r5sos provided and without obtaining the authorization, approval, consent or waiver of any grantor, lessor, sublessor, Governmental Authority, or other Person whomsoever subject only to the Permitted Liens. 2. Payment of Lender Obli ations. Mortgagor shall pay and perform the Lender Obligations at the times and places and in the mam3el- specified in Credit Agreements and/or each other Lender Agreement. 3. Requirements. Mortgagor shall promptly comply with all laws applicable to the Mortgaged Property, and all covenants, restrictions, conditions and requirements'now or hereafter of record or which otherwise may be applicable to any of the Mortgaged Property, or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction of any of the Mortgaged Property, except where a failure to do so could not reasonably be expected to have a Material Adverse Effect on (i) the current business, operations or condition (financial or otherwise) of the Mortgagor, (ii) the current use of the Mortgaged Property or (iii) the value of the Mortgaged Property (assuming its current use). Mortgagor shall not commit, nor permit or suffer to occur, any material waste with respect to the Mortgaged Property. 4. Payment of Taxes and Other Impositions (a) Promptly when due and in any event prior to the date on which any fine, penalty, interest or cost may be added thereto or imposed, Mortgagor shall pay and discharge all taxes, charges and assessments of every kind and nature; all charges for any easement or agreement maintained for the benefit of any of the Mortgaged Property, all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, vault taxes and all other public charges even if unforeseen or extraordinary, imposed upon or assessed against or which may become a lien on any of the Mortgaged Property, or arising in respect of the occupancy, use, operation or possession thereof, together with any penalties or interest on any of the foregoing (all of the foregoing are collectively referred to herein as the "Impositions") except where (A) the validity or amount thereof is being contested in good faith by appropriate proceedings and in accordance with the provisions of the Credit Agreements, and that non-payment thereof will not result in forfeiture, sale, loss or diminution of any interest of Mortgagor (or Agent) in the Mortgaged Property, and (B) the Mortgagor has set aside on its books adequate reserves with respect thereto in accordance with GAAP, which reserves shall include reasonable additional sums to cover possible interest, costs and penalties; provided, however, that Mortgagor shall promptly cause to be paid any amount adjudged by a court of competent jurisdiction to be due, with all interest, costs and penalties thereon, promptly after such judgment becomes final (and, subject to Agent's rights and remedies during an Event of Default and any provisions set forth in the Credit Agreements to the contrary, Agent shall make any sum deposited in such reserve available for such payment; and provided, further, that, in all events, Impositions, interest, costs and penalties shall be paid prior to the date any writ or order is issued under which the Mortgaged Property may be sold, lost or forfeited. Upon request by Agent, Mortgagor shall deliver to Agent evidence reasonably acceptable to Agent showing the payment of any such Imposition made by Mortgagor. If by law any Imposition, at Mortgagor's option, may witl3ouC penalty or premium be paid in installments (whether or not interest shall accrue on the unpaid balance of such lmposilion), Mortgagor may elect to pay such Imposition in 5 LI13 D/ 1907304. I 9 ofoZG ~oo~r5sos such installments and shall be responsible for the payment of such installments with interest, if any. (b) Nothing herein shall affect any right or remedy of Agent under this Deed of Trust or otherwise, without notice or demand to Mortgagor, to pay any installment of any Imposition after the date such installment of any Imposition shall have become due, and add to the Lender Obligations the amount so paid, together with interest from the time of payment at the. interest rate as set forth in the Credit Agreements. Any sums paid by Agent in discharge of any Impositions shall be (i) a lien on the Mortgaged Property secured hereby prior to any right or title to, interest in, or claim upon the Mortgaged Property subordinate to the lien of this Deed of Trust, and (ii) payable within five (5) Business Days of demand by Mortgagor to Agent together with interest at the interest rate as set forth in` the Credit Agreements. (c) As of the date hereof, Mortgagor represents and warrants that Mortgagor (i) has filed all federal, state, commonwealth, county, municipal and city income and other material tax returns required to have been filed by it and has paid all taxes and other impositions which have become due or pursuant to any assessments or charges received by it, (ii) does not know of any basis for any additional assessment or charge in respect of any such taxes or other Impositions, and (iii) has paid in full all sums owing or claimed for labor, material, supplies, personal property (whether or not forming an Improvement hereunder) and services of every kind and character used, furnished or installed in or on the Mortgaged Property that are now due and owing and no claim for same exists or will be permitted to be created, except such claims as may arise in the ordinary course of business and that are not yet past due. 5. Insurance. (a) Mortgagor shall maintain insurance covering the Real Estate as required by the Credit Agreements. (b) Ii' any portion of the Premises is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, Mortgagor shall maintain or cause to be maintained, flood insurance in an amount reasonably satisfactory to Agent, but in no event less than the maximum limit of coverage available under the National Flood Insurance Act of 1968, as amended. (e) Mortgagor shall promptly comply with and conform in all material respects to (i) all provisions of each such insurance policy, and (ii) all requirements of the insurers applicable to Mortgagor or to any of the Mortgaged Property or to the use, manner of use, occupancy, possession, operation, maintenance, alteration or repair of any of the Mortgaged Property. Mortgagor shall not use or permit the use of the Mortgaged Property in any manner, which would permit any insurer to cancel any insurance policy or void coverage required to be maintained by Mortgagor under this Deed of Trust. (d) If Mortgagor is in default of its Lender Obligations to insure or deliver to Agent any such prepaid policy or policies, then Agent, at its option upon five (5) Business Days' written days notice to Mortgagor (unless, in Agent's judgment, in its sole discretion, Agent's security would be compromised by giving such notice), may effect such insurance from year to I,1I3 D/ 1907304.1 6 l o o fat-9 ~oo~r~so6 year, and pay the premium or premiums therefor, and Mortgagor shall pay to Agent, within three (3) Business Days of demand, such premium or premiums so paid by Agent with interest from the time of payment at the interest rate as set forth in the Credit Agreements. (e) If the Mortgaged Property, or any part thereof, shall be destroyed or dau3aged and the reasonably estimated cost thereof would exceed $100,000, Mortgagor shall give prompt notice thereof to Agent. All insurance proceeds paid or payable in connection with any damage or casualty to the Mortgaged Property shall be applied in the manner specified in the Credit Agreements. (f) In the event of foreclosure of this Deed of Trust or other transfer of title to the Mortgaged Property, all right, title and interest of Mortgagor in and to any insurance policies then in force shall pass to the Agent or its designee, or to the purchaser or grantee, as applicable. (g) The provisions of this section shall be deemed to supplement, and not conflict with, the terms and provisions of the Credit Agreements relating to insurance. 6. Restrictions; Negative Covenants. (a) Except as may be expressly provided for in the Credit Agreements and except for the lien of this Deed of Trust and the Permitted Liens, Mortgagor shall not further mortgage, nor otherwise encumber the Mortgaged Property or create or suffer to exist any lien, charge or encumbrance on the Mortgaged Property, or any part thereof, whether superior or subordinate to the lien of this Deed of Trust and whether. recourse ornon-recourse. (b) Alterations. Mortgagor shall notify Agent, in writing and in advance, with respect to all proposed alterations, improvements or additions to the Mortgaged Property which are of a material nature, and Mortgagor shall not effect any material alteration, improvement or addition to the Mortgaged Property exceeding $100,000 without the prior written consent of Agent in each instance. Without limiting the definition of the phrase "material alteration, improvement or addition", any change affecting the structure or use of an Improvement, or materially restricting the access thereto, shall be deemed a "material alteration, improvement or addition". (c) Additional Negative Covenants. All negative covenants made by Mortgagor in Article 9 of the NEC Credit Agreement are incorporated herein by reference and are hereby made by Mortgagor as to itself and the Mortgaged Property as though such negative covenants were set forth at length herein as the negative covenants of Mortgagor. 7. Transfer Restrictions. I?xcept as may be expressly permitted by the Credit Agreements, Mortgagor shall not sell, transfer, convey or assign al] or any portion of, or any interest in, the Mortgaged Property. 8. Condemnation/Eminent Domain Proceeds• Casualty Losses. Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation of all or any portion of the Premises, Mortgagor will notify Agent of the pendency of such proceedings. All awards and proceeds relating to such condemnation shall be treated similar to those from any transaction, or series of related transactions, pursuant to which any Person or any of its LIED/ 1907304.1 7 ~~ ofo2_y ij4 SG ~oa'~~sos Subsidiaries sells, assigns, transfers or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person and applied in the manner specif ed in the Credit Agreements. In all events, Mortgagor hereby covenants and agrees to promptly commence and to diligently prosecute the restoration of the Mortgaged Property upon the occurrence of any casualty loss or other damage affecting the Mortgaged Property, up to the amount of any casualty loss insurance proceeds-made available to Mortgagor in accordance with the Credit Agreements. Notwithstanding any damage to, destruction or loss of or other casualty with respect to any of the Mortgaged Property, Mortgagor shall continue to pay the Lender Obligations at the time and in the manner provided for in the Credit Agreements and/or any other Lender Agreement until the Lender Obligations have been paid in full. If the Mortgaged Property is sold, through foreclosure or otherwise, prior to the receipt by Agent of such insurance proceeds, Agent shall have the right, whether or not a deficiency judgment on any Lender Agreement shall have been sought, recovered or denied, to receive such insurance proceeds, or a portion thereof Buff cient to pay the then unpaid Lender Obligations, whichever is less. 9. Leases. Except as expressly permitted under the Credit Agreements, Mortgagor shall not execute an assignment or pledge of any Tower Lease other than in favor of Agent or (b) mortgage, pledge, assign, hypothecate, or otherwise encumber or transfer any Tower Lease or any interest in any Tower Lease, or (c) enter into, amend or modify any Tower Lease or any interest in any Tower Lease except in the ordinary course of Mortgagor's business in a mam~er and to an extent consistent with past practice and/or necessary or desirable for the prudent operation of its business as long as such action is commercially reasonable and will not result in a Material Adverse Cffect. 10. Repair. Mortgagor shall keep the Mortgaged Property in good order and condition (reasonable wear and tear excepted), and shall make all repairs, replacements and improvements thereof and thereto which are necessary to keep the same in such order and condition. Mortgagor shall use reasonable efforts to prevent any act or occurrence, which might impair the value or usefulness of the Mortgaged Property for its intended usage. 1 1. Further Assurances. To further assure Agent's rights under this Deed of Trust, Mortgagor agrees promptly upon demand of Agent to do any act or execute and deliver, record and/or f le any additional documents (including, but not limited to, security agreements on any personalty included or to be included in the Mortgaged Property and a separate assignment of (i) each Tower Lease in recordable form and (ii) any other agreement to which Mortgagor is a party) as may be reasonably required by Agent to conf rm the lien of this Deed of Trust and all other rights or benefits conferred on Agent by This Deed of Trust, the Credit Agreements and/or any other Lender Agreement. 12. Agent's Right to Perform. If Mortgagor fails to perform any of the covenants or agreements of Mortgagor hereunder, after the applicable notice and within the applicable grace period, if any, provided forin the Credit Agreements, Agent, without waiving or releasing Mortgagor from any obligation or default under this Deed of Trust, may, at any time (but shall be under no obligation to) pay or perform the same, and the amount or cost thereof, with interest at the interest rate as set forth in the Credit Agreements, shall within three (3) Business Days of L I li U/ 1907304. I g /oL o f oL ~ '~;>: r ~oo~r~sos written demand be due from Mortgagor to Agent and the same shall be secured by this Deed of Trust and shall be a lien on the Mortgaged Property prior to any right, title to, interest in, or claim upon the Mortgaged Property attaching subsequent to the lien of this Deed of Trust. No payment or advance of money by Agent under this Section 12 shall be deemed or construed to cure Mortgagor's default or waive any right or remedy of Agent. 13. Events of Default. The occurrence of an Event of Default under the Credit Agreements or any other-Lender Agreement by Mortgagor shall constitute an "Event of Default" hereunder. 14. Remedies. (a) Upon the occurrence and during the continuance of any Event of Default, Agent or Trustee, as applicable, may immediately take such action, without notice or demand, as it deems advisable to protect and enforce its rights against Mortgagor and in and to the Mortgaged Property, including, but not limited to, the following actions, each of which may be pursued concurrently or otherwise, at such time and in such manner as Agent or Trustee, as applicable, may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies available to Agent or Trustee hereunder or under applicable law: (i) Agent may, to the extent permitted by applicable law, (A) institute and maintain an action of mortgage foreclosure against all or any part of the Mortgaged Property, either by judicial action or through the Trustee, as provided in 14(b) below, (B) institute and maintain an action on the Credit Agreements, any Guaranty or any other Lender Agreement, (C) sell all or part of the Mortgaged Property (Mortgagor expressly granting.to Agent the power of sale), or (D) take such other action at law or in equity for the enforcement of this Deed of Trust or any of the Lender Agreements as the law may allow. Agent may proceed in any such action to f nal judgment and execution thereon for all sums due hereunder, together with interest thereon at the interest rate as set forth in the Credit Agreements and all costs of suit, including, without limitation, reasonable attorneys' fees and disbursements. Interest at the interest rate as set forth in the Credit Agreements shall be due on any judgment obtained by Agent from the date of judgment until actual payment is made of the full amount of the judgment; and (ii) To the extent permitted under applicable law, Agent may personally, or by its agents, attorneys and employees, and without regard to the adequacy or inadequacy of the Mortgaged Property or any other collateral as security for the Lender Obligations, enter into and upon the Mortgaged Property and each and every part thereof and exclude Mortgagor and its agents and employees therefrom without liability for trespass, damage or otherwise (Mortgagor hereby agreeing to surrender possession of the Mortgaged Property to , Agent upon demand at any such time), and use, operate, manage, maintain and control fhe Mortgaged Property and every part thereof. Following such entry and taking of possession, Agent shall be entitled, without limitation other than ]imitations under applicable law, (A) to lease all or any part or parts of the Mortgaged Property for such periods of time and upon such conditions as Agent 9 LI [3ll/ 190730A. I i3 of ~t9 ;~oor~~sos may, in its discretion, deem proper, (B) to enforce, cancel or modify any Tower Lease or other agreement to which Mortgagor is a party, and (C) generally to execute, do and perform any other act, deed, matter or thing concerning the Mortgaged Property as Agent shall deem appropriate as fully as Mortgagor might do. (b) Foreclosure by exercise of the power of sale through the Trustee will be initiated by Agent's filing of its notice of election and demand for sale with Trustee. Upon the - filing of such notice of election and demand for sale, Trustee shall promptly comply with all notice and other requirements of the laws of Nebraska then in force with respect to such sales. Any. sale conducted by Trustee pursuant to this section shall be held at the front door of the county courthouse for such County, or on the Mortgaged Property, or at such other place as similar sales are then customarily held in such County, provided that the actual place of sale shall be specified in the notice of sale. The Agent may bid for and acquire the Mortgaged Property at such sale and in lieu of paying cash therefor nay make settlement for the purchase price by crediting the obligations upon the net sale price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which the Agent is authorized to deduct under this Deed of Trust. The Trustee shall, out of the proceeds or avails of such sale, after first paying and retaining all fees, charges and costs of making said sale, pay to the Agent hereunder the principal, interest and other amounts due under the Credit Agreements or other Lender Agreement according to the tenor and effect thereof, and all moneys advanced by such Agent for insurance, taxes and assessments, with interest thereon at 8.625 per cent per annum, rendering the overplus, if any, unto the Mortgagor, its legal representatives, successors, or assigns. At the conclusion of any foreclosure sale; the off cer conducting the sale shall execute and deliver to the purchaser at the sale a certificate of purchase, which shall describe the property sold to such purchaser and shall state that upon the expiration of the applicable periods for redemption, the holder of such certificate will be entitled to a deed to. the property described in the certificate. After the expiration of all applicable periods of redemption, unless the property sold has been redee>ned by Mortgagor, the officer who conducted such sale shall, upon request, execute and deliver an appropriate deed to the holder of the certificate of purchase or the last certif cate of redemption, as the case may be, and such deed shall operate to divest Mortgagor and all persons claiming under Mortgagor of all right, title and interest, whether legal or equitable, in the property described in the deed. Said sale or sales and said deed or deeds so made shall be a perpetual bar, both in law and equity, against the Mortgagor, its successors and assigns, and all other persons claiming the said property, or any part thereof, by, from, through or under the Mortgagor, or any of them. Nothing in this section dealing with foreclosure procedures or specifying particular actions to be taken by Agent or Trustee or any similar off cer shall be deemed to contradict or add to the requirements and procedures now or hereafter specified by Nebraska law, and any such inconsistency shall be resolved in favor of Nebraska law applicable at the time of foreclosure. Each remedy provided in this instrument is distinct from and cumulative with all other rights and remedies provided hereunder or afforded by applicable law or equity, and may be exercised concurrently, independently or successively, in any order whatsoever. (c) In case of a foreclosure sale, the Mortgaged Property may be sold, at Agent's election, in one parcel or in more than one parcel and Agent is specifically empowered LI13D/1907304.1 10 l~ otoL9 ,, ;~:~ ~oo~r5sos (without being required to do so, and in its sole and absolute discretion) to cause successive sales of portions of the Mortgaged Property to be held. (d) In the event of any breach of any of the covenants, agreements, terms or conditions contained in this Deed of Trust, Agent shall be entitled to enjoin such breach and obtain specif c performance of any covenant, agreement, term or condition and Agent shall have the right to invoke any equitable right or remedy as though other remedies were not provided for in this Deed of Trust. (e) It is agreed that if an Event of Default shall occur and be continuing, any and all proceeds of the Mortgaged Property received by the Agent. shall be held by the Agent for the benef t of the Lenders as collateral security for the Lender Obligations (whether matured or umnatured), and shall be applied in payment of the Lender Obligations in accordance with the terms and provisions of the Credit Agreements. (f) In the case of an Event of Default whereby the right of foreclosure occurs hereunder, the Trustee, the Agent, if applicable, or the holder of said certificate of purchase shall at once become entitled to the possession, use and enjoyment of the Mortgaged Property, and to the rents, issues and profits thereof from the accruing of such right and during the pendency of foreclosure proceedings and the period of redemption, if any there be: and such possession shall at once be delivered to the Trustee or the Agent, if applicable, or the holder of said certificate of purchase on request, and on refusal, the delivery of such possession may be enforced by the Trustee or the Agent or holder of certificate of purchase by any appropriate civil suit or proceeding, and the Trustee, Agent or holder of certif cafe of purchase, or any thereof, shall be entitled to a Receiver for said property and of the rents, issues and profits thereof, after such default, including the time covered by foreclosure proceedings and the period of redemption, if any ihel•e be, and shall be entitled thereto as a matter_of right without regard to the solvency or insolvency of the Mortgagor or of the then owner of said Mortgaged Property and without regard to the value thereof. Such Receiver may be appointed by any court of competent jurisdiction upon ex pane application and without notice -notice being hereby expressly waived -and all rents, issues and profits, income and revenue therefrom shall be applied by such Receiver to the payment of the indebtedness hereby secured, according to the law and the orders and directions of the court. 15. Rieht of Agent to Credit Sale. Upon the occurrence of any sale of all or any portion of the Mortgaged Property made under this Deed of Trust, whether made under the power of sale or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, Agent may bid for and acquire the Mortgaged Property or any part thereof In lieu of paying cash therefor, Agent may make settlement for t11e purchase price by crediting upon the Lender Obligations or other sums secured by this Deed of Trust, the net sales price after deducting therefrom the expenses of sale and the cost of the action and any other sums that Agent is authorized to deduct under this Deed of Trust. In such event, this Deed of Trust, the Credit Agreements, each Guaranty and any documents evidencing expenditures secured hereby may be p>•esented to the person or persons conducting the sale in order that the amount so used or applied may be credited upon the Lender Obligations as having been paid. i I.I I3 U/ 1907304. I IS o~aL9 = ~oo~r5sos I6. Appointment of Receiver. If an Event of Default shall have occurred and be continuing, and if the appointment of a receiver is necessary to save the Mortgaged Property from injury, threatened loss or dissipation, Agent as a matter of right and subsequent to five (5) Business Days' written notice to Mortgagor, unless otherwise required by applicable law, and without regard to the adequacy or inadequacy of the Mortgaged Property, or any other collateral or the interest of Mortgagor therein as security for the Lender Obligations,. shall have the right unless restricted by applicable law to apply to any court having jurisdiction to appoint a receiver or receivers or other manager of the Mortgaged Property, without requiring the posting of a surety bond except as required by applicable law, and witliout.reference to the adequacy or inadequacy of the value of the Mortgaged Property or the solvency or insolvency of Mortgagor or any other party obligated for payment of all or any part of the Lender Obligations, and whether or not waste has occurred with respect to the Mortgaged Property, and Mortgagor hereby irrevocably consents to such appointment and waives notice of any application therefor (except as may be required by law). Any such receiver or receivers or manager shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Agent in case of entry as provided in this Deed of Trust, including, without limitation and to the extent permitted by law, the right to enter into leases of all or any part of the Mortgaged Property, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Mortgaged Property unless such receivership is sooner terminated. 17. Extension, Release, etc. ,.. f, 1~~'. i ~" ~. (a) Without affecting the lien or charge of this Deed of Trust upon any portion of the Mortgaged Property not then or theretofore released as security for the full amount of the Lender Obligations, Agent may, from time to time and without notice, agree to (i) release any Person liable for the indebtedness borrowed or guaranteed under the Credit Agreements or any other Lender Agreement, (ii) extend the maturity or alter any of the terms of the indebtedness bonowed or guaranteed under the Credit Agreements or any other Lender Agreement or any other guaranty thereof, (iii) grant other indulgences, (iv) release or recovvey, or cause to be released or reconveyed at any time at Agent's option any parcel, portion or all of the Mortgaged. Property, (v) take or release any other or additional security for any obligation herein mentioned, or (vi) snake compositions or other arrangements with debtors in relation thereto. (b) Unless such action results in payment and performance in full of the Lender Obligations secured by this Deed of Trust, no recovery of any judgment by Agent and no levy of an execution under any judgment upon t11e Mortgaged Property or upon any other property of Mortgagor shall affect the lien of this Deed of Trust or any liens, rights, powers or remedies of Agent hereunder, and such liens, rights, powers and remedies shall continue unimpaired. (c) If Agent shall have the right to foreclose this Deed of Trust or to direct a power of sale, Mortgagor authorizes Agent at its option to foreclose the lien of this Deed of Trust (or direct the sale of the Mortgaged Property, as the case inay be). The failure to make any tenants parties defendant to any such foreclosure proceeding and to foreclose their rights, or to provide notice to such tenants as required in any statutory procedure governing a sale of the Mortgaged Property, or to terminate such tenant's rights in such sale will not be asserted by LIL3U/I )07304.1 12 ~~ of~L9 200"75G06 Mortgagor as a defense to any proceeding instituted by Agent to collect the Lender Obligations or to foreclose the lien of this Deed of Trust. (d) Unless expressly provided otherwise herein, in the event that ownership of this Deed of Trust and title to the Mortgaged Property or any estate therein shall become vested in the same Person, this Deed of Trust shall not merge in such title but shall continue as a valid lien on the Mortgaged Property for the amount secured hereby. 18. Security Agreement under Uniform Commercial Code. (a) It is the intention of the parties hereto that this Deed of Trust shall constitute a Security Agreement within the meaning of the Uniform Commercial Code (the "Code") of the State of Nebraska with respect to personal property and/or f xtures included in the Mortgaged Property. If an Event of Default shall occur and be continuing under this Deed of Trust, then, in addition to having any other. right or remedy available at law or in equity, Agent shall have the option of either (i) proceeding under the Code and exercising such rights and remedies as may be provided to a secured party by the Code with respect to all or any portion of the Mortgaged 1'roperfy which is personal property (including, without limitation; taking possession of and selling such property) or (ii) treating such property as real property and proceeding with respect to both the real and personal property constituting the Mortgaged Property in accordance with Agent's rights, powers and remedies with respect to the real property (in which event the default provisions of the Code shall not apply). if Agent shall elect to proceed under the Code, then ten (10) Business Days' written notice of sale of the personal property shall be deemed reasonable notice and the reasonable expenses of retaking, holding, preparing for sale, selling and the like incurred by Agent shall include, but not be limited to, attorneys' fees and legal expenses. At Agent's request, Mortgagor shall assemble the personal property (if applicable) and snake it available to Agent at a reasonable location, as designated by Agent. (b) Mortgagor and Agent agree, to the extent permitted by law, that: (i) all of the goods described within the def nition of the word "Equipment" are or are to become fixtures on the Real Estate; (ii) this Deed of Trust upon recording or registration in the real estate records of the proper office shall constitute a financing statement filed as a "fixture filing" in accordance with the Uniform Commercial Code; (iii). Mortgagor is the record owner of the Land (as hereinafter def ned); and (iv) the addresses of Mortgagor and Agent are as set forth on the first page of this Deed of Trust. 19. Future Advances It is the intention of Mortgagor and Agent that this Deed of Trust (as renewed and extended from time to time) shall secure future advances and readavances, and the lien and security interest created by this Deed of Trust shall attach upon execution and have priority from the time of recording as to all advances, whether obligatory or discretionary, until this Deed of Trust is released of record. 20. Assignment of Rents. (a) Mortgagor hereby assigns to Agent the Rents as further security for the .payment of and performance of the Lender Obligations, and Mortgagor grants to Agent the right 13 LII3D/19U73U4.1 i ~~ ofd 9 `~oo°~5sos to enter the Mortgaged Property for the purpose of collecting the same and to let the Mortgaged Property or any part thereof, and to apply the Rents on account of the Lender Obligations. "The foregoing assignment and grant is present, irrevocable and absolute and shall continue in effect until the Lender Obligations are fully paid and performed, but Agent hereby waives the right to enter the Mortgaged Property for the purpose of collecting the Rents and Mortgagor shall be entitled to collect, receive, use and retain the Rents until the occurrence of an Event of Default under this Deed of Trust; such right of Mortgagor to collect, receive, use and retain the Rents may be immediately and automatically revoked by Agent without the necessity of any action of Agent upon the occurrence (and during the continuance of) of any Event of Default under this Deed of Trust by written notice of such revocation to Mortgagor; in the event such notice is given, Mortgagor shall pay over to Agent, or to any receiver appointed to collect the Rents, any lease security deposits, and, if the Mortgaged Property is not under Tower Lease by athird-party, Mortgagor shall pay monthly in advance to Agent, or to any such receiver, the fair and reasonable rental value as determined by Agent for the use and occupancy of such part of the Mortgaged Property as may be in the possession'of Mortgagor or any affiliate of Mortgagor, and upon default in any such payment Mortgagor and any such affiliate will vacate and surrender the possession of the Mortgaged Property to Agent or to such receiver, and in default thereof maybe evicted by summary proceedings or otherwise. Mortgagor shall not accept prepayments of installments of Rent to become due for a period of more than one month in advance (except the ordinary course of business and for security deposits obtained in the ordinary course' of business). (b) Mortgagor has not aff rmatively done any act that would prevent Agent from, or limit Agent in, acting under any of the provisions of the foregoing assignment. (c) Except for any matter disclosed in the Credit Agreements, no action has been brought or, so far as is known to Mortgagor, is threatened, which would interfere in any . way with the right of Mortgagor to execute the foregoing assignment and perform all of Mortgagor's Lender Obligations contained in this Section 20 or in the Tower Leases. 21. Additional Rights. The holder of any subordinate lien or subordinate mortgage or deed of trust on the Mortgaged Properly shall have no right to terminate any Tower Lease, whether or not such T ower Lease is subordinate to this Deed of Trust, nor shall Mortgagor consent to any holder of any subordinate lien or subordinate mortgage or deed of trust joining any tenant under any Tower Lease in any action to foreclose the lien or modify, interfere with, disturb or terminate the rights of any tenant under any Tower Lease. By recordation of this Deed of Trust, al] subordinate lienholders and the Lenders and beneficiaries under subordinate mortgages are subject to and notif ed of this provision, and any action taken by any such lienholder or beneficiary contrary to this provision shall be null and void. Upon the occurrence and during the continuance of any Event of Default, Agent may, in its sole discretion and without regard to the adequacy of its security under this Deed of Trust, apply all or any part of any amounts on deposit with Agent under this Deed of Trust against all or any part of the Lender Obligations. Any such application shall not be construed to cure or waive any Default or Event of Default or invalidate any act taken by Agent on account of such Default or Event of Default. 22. Mortgagor's Indemnities Mortgagor agrees to protect, indemnify and hold harmless Agent and each Lender and all of their respective officers, directors, employees, 14 LInD/I J07304. I i /8 ef~9 2oo~r~sos attorneys, consultants and agents (collectively called the "Indemnitees") from and against any and all losses which Agent or any of such Indemnitees may incur under or by reason of the assignment of Tower Leases and Rents, or for any action taken by Agent or any Lender or the Indemnitees hereunder, or by reason or in defense of any and all claims and demands whatsoever which may be asserted against Agent or any of the Indemnitees arising out of the Tower Leases, including, without limitation, any claim by any third Person for credit on account of Rents paid to and received by Mortgagor, but not delivered to Agent or its authorized agents or representatives or employees, for any period under any Tower:I;ease more than one (1) month in advance of the due date thereof. In the event that Agent or any Lender or any of the Indemnitees incurs any losses covered by the indemnity set forth in this Section 22 or any article or section of the Credit Agreements, the amount thereof, including reasonable attorneys' fees, with interest thereon at the interest rate as set forth in the Credit Agreements, shall be payable by Mortgagor to Agent within ten (10) days after demand therefor, and shall be secured hereby and by all other security for the payment and performance of the Lender Obligations, including, without limitation, the lien and security interest of this Deed of Trust. The liabilities of Deed of Trust as set forth in this Section 22 shall survive the termination of this Deed of Trust and the repayment of the Lender Obligations. 23. No Liabilitygent. Neither the acceptance nor the exercise of the rights and remedies hereunder nor any other action on the part of Agent or any Person authorized by Agent to exercise Agent's rights hereunder shall be construed to (a) be an assumption by Agent or any such Person or to otherwise make Agent or such Person liable or responsible for the performance of any of the Lender Obligations of Mortgagor under or with respect to the Leases or the Mortgaged Property, or for any Rent, security deposit or other amount delivered to Mortgagor, provided that Agent or any such Person exercising the rights of Agent shall be accountable for any Rents, security deposits or other amounts actually received by Agent or such Person, as the case may be; or (b) obligate Agent or any such Person to take any action under or with respect to the Leases or with respect to the Mortgaged Property, to incur any expense or perform or discharge any duty or obligation under or with respect to the Tower Leases or with respect to the Mortgaged Property, to appear in or defend any action or proceeding relating to the Tower Leases or the Mortgaged Property, to constitute Agent as aLender-in-possession (wiles Agent actually enters and takes possession of the Mortgaged Property), or to be liable in any way for any injury or damage to Persons or property sustained by any Person in or about the Mortgaged Property, other than to the extent caused by the willful misconduct or gross negligence of Agent or any Person authorized by Agent to exercise the rights of Agent hereunder. 24. Notices. All notices, requests, demands and other communications hereunder shall be given in accordance with the provisions of Section 14.1 of each Credit Agreement to Mortgagor and to Agent as specified therein. 25. No Oral Modification. This Deed of Trust may not be amended, supplemented or otherwise modified except in accordance with the provisions of Article 11 of each Credit Agreement. Any agreement made by Mortgagor and' Agent after the date of this Deed of Trust relating to this Deed of Trust shall be superior to the rights of the holder of any intervening or subordinate lien or encwnbrance. LIBD/1907304.1 15 ~9 of~z9 ~0o~56os 26. Partial Invalidity; Usury Savings Clause. In the event any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, but each shall be construed as if such invalid, illegal or unenforceable provision had never been included herein. Notwithstanding to the contrary anything contained in. this Deed of Trust or in any provisions of any Lender Agreement, the Lender Obligations of Mortgagor and of any other obligor under the Credit Agreements or any other Lender Agreement shall be subject to the limitation that Agent shall not charge, take or receive, nor shall Mortgagor or any other obligor be obligated to pay to Agent, any amounts constituting interest in excess of the maximum rate permitted by applicable law to be charged by Agent. % 27. Mortgagor's Waiver of Rim. (a) Mortgagor hereby voluntarily and knowingly releases and waives any and all rights to retain possession of the Mortgaged Property after the occurrence of an 1/vent of Default hereunder and any and all rights of redemption from sale under any order or decree of foreclosure (whether full or partial), pursuant to rights, if any, therein granted, as allowed under any applicable law, on its own behalf, on behalf of all Persons claiming or having an interest (direct or indirectly) by, through or under each constituent of Mortgagor and on behalf of each and every Person acquiring any interest in the Mortgaged Property subsequent to the date hereof, it being the intent hereof that any and all such rights or redemption.of each constituent of Mortgagor and all such other Persons are and shall be deemed to be hereby waived to the fullest extent now or hereafter permitted by applicable law. Each constituent of Mortgagor shall not invoke or utilize any such law or laws or otherwise hinder, delay, or impede the execution of any right, power, or remedy herein or otherwise granted or delegated to the Agent, but shall permit the execution of every such right, power, and remedy as though no such law or laws exists or had been made or enacted. ` (b) To the fullest extent permitted by law, Mortgagor waives the benefit of all laws now existing or that may subsequently be enacted providing for (i) any appraisement before sale of any portion of the Mortgaged Property, (ii) any extension of the time for the enforcement of the collection of the Lender Obligations or the creation or extension of a period of redemption fi-orn any sale made in collecting the Lender Obligations, and (iii) exemption of the Mortgaged I'roperiy from attachment, levy or sale under execution or exemption from civil process. To the full extent Mortgagor may do so under applicable law, Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, exemption, extension or redemption, or requiring foreclosure of this Deed of Trust before exercising any other remedy granted hereunder and Mortgagor, for Mortgagor and its successors and assigns, and for any and all Persons ever claiming any interest in the Mortgaged Property, to the extent permitted by law, hereby waives and releases all rights of redemption, valuation, appraisement, stay of execution, notice of election to mature (except as expressly provided in the Credit Agreement) or declare due the whole of the secured indebtedness and marshaling in the event of exercise by Agent of the foreclosure rights, power of sale, or other rights hereby created. 28. Remedies Noe Exclusive. Agent shall be entitled to enforce payment and performance of the Lender Obligations and to exercise.all rights and powers under this Deed of 16 LI l3 U/ 1907304. I ~o ot~9 t i ;t~. . ~; ? ~ - l, i 8•. t M ~• l ~} ~~ t, t([ i X0075606 Trust or under any of the other Lender Agreements to which Mortgagor is a party or other agreement or any laws now or hereafter in force, notwithstanding some or all of the Lender Obligations may now or hereafter be otherwise secured, whether by deed of trust, mortgage, security agreement, pledge, lien, assignment or otherwise. Neither the acceptance of this Deed of Trust nor its enforcement shall prejudice or in any manner affect Agent's rights to realize upon or enforce any other security now or hereafter held by Agent, it being agreed that Agent shall be entitled to enforce this Deed of Trust and any other security now or hereafter held by Agent in such order and manner as Agent may determine in its absolute discretion. No remedy herein conferred upon or reserved to Agent is intended to be exclusive of any othei remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. )Jvery power or remedy given by any Lender`Agreement to Agent or to which either may otherwise be entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Agent, as the case may be. In no event shall Agent, in the exercise of the remedies provided in this Deed of Trust (including, without limitation; in com~ection, with the assignment of Rents to Agent, or the appointment of a receiver and the entry of such receiver on to all or any part of the Mortgaged Property), be deemed a "Lender-in- possession" (unless Agent actually enters and takes possession of the Mortgaged Property), and Agent shall not in any way be made liable for any act, either of commission or omission, in connection with the exercise of such remedies other than to the extent caused by the willful misconduct or gross negligence of the Agent or any Person authorized by Agent to exercise the rights ol'Agent hereunder. 29. Multiple Security. If (a) t13e Premises shall consist of one or more parcels, whether or not contiguous and whether or not located in the same county, or (b) in addition to this Deed of Trust, Agent shall now or hereafter hold or be the beneficiary of one or more additional mortgages, liens, deeds of trust or other security (directly or indirectly) for the Lender Obligations upon other property in the State or Commonwealth in which the Premises are located (whether or not such property is owned by Mortgagor or by others) or (c) both the circumstances described in clauses a and (b) of this Section 29 shall be true, then to the fullest extent permitted by law, Agent may, at its election, commence or consolidate in a single foreclosure action all foreclosure proceedings against all such collateral securing the Lender Obligations (including the Mortgaged Property), which action may be brought or consolidated in the courts of, or sale conducted iri, any county in which any of such collateral is located. Mortgagor acknowledges that the right to maintain a consolidated foreclosure action is a specific inducement to Agent to extend the indebtedness borrowed pursuant to or guaranteed by any Lender Agreement, and Mortgagor expressly and irrevocably waives any objections to the commencement or consolidation of the foreclosure proceedings in a single action and any objections to the laying of venue or based on the grounds of forum non convenient which it may now or hereafter have. Mortgagor further agrees that if Agent shall be prosecuting one or more foreclosure or other proceedings against a portion of the Mortgaged Property or against any collateral other than the.Mortgaged Property, which collateral directly or indirectly secures the Lender Obligations, or if Agent shall have obtained ajudgment of foreclosure and sale or similar judgment against such collateral, then, whether or not such proceedings are being maintained or judgments were obtained in or outside the State or Commonwealth in which the Premises are located, Agent may commence or continue any foreclosure proceedings and exercise its other remedies granted in this Deed of Trust against all or any part of the Mortgaged Property and 17 L113 D/ 1907304. I a~ of~y 2OO'756U6 Mortgagor waives any objections to the commencement or continuation of a foreclosure of this Deed of Trust or exercise of any other remedies hereunder based on such other.proceedings or judgments, and waives any right to seek to dismiss, stay, remove, transfer or consolidate either any action under this Deed of Trust or such other proceedings on such basis. Neither the commencement nor continuation of proceedings to foreclose this Deed of Trust, nor the exercise of any other rights hereunder or the recovery of any judgment by Agent in any such proceedings or the occurrence of any sale in any such proceedings shall prejudice, limit or preclude Agent's right to commence or continue one or more foreclosure or other proceedings or obtain a judgment against any other collateral (either in or outside the State or Commonwealth in which the Premises are located) which directly or indirectly secures the Lender Obligations, and Mortgagor expressly waives any objections to the commencement of,. continuation of, or entry of a judgment in such other sales or proceedings or exercise of any remedies in such sales or proceedings based upon any action or judgment connected to this Deed of Trust, and Mortgagor also waives any right to seek to dismiss, stay, remove; transfer or consolidate either such other sales or proceedings or any sale or action under this Deed of Trust on such basis. It is expressly understood and agreed that to the fullest extent permitted by law, Agent may, at its election, cause the sale of all collateral which is the subject of a single foreclosure action at either a single sale or at multiple sales conducted simultaneously and take such other measures as are appropriate in order to effect the agreement of the parties to dispose of and administer all collateral securing the Lender Obligations (directly or indirectly) in the most economical and least time-consuming manner. 30. Successors and Assi ns. All covenants of Mortgagor contained in this Deed of Trust are imposed solely and exclusively for the benefit of Agent, as agent for the Lenders, and the Lenders, and no other Person or entity shall have standing to require compliance with such covenants or be deemed, under any circumstances, to be a beneficiary of such covenants, any or all of which may be freely waived in whole or in part by Agent at any time if in the sole discretion of either of them such a waiver is deemed advisable. All such covenants of Mortgagor shall run with the land and bind Mortgagor, the successors and assigns of Mortgagor (and each of them) and all subsequent owners, encumbrances and tenants of the Mortgaged Property, and shall inure to the benefit of Agent and its successors and assigns. The word "Mortgagor" shall be construed as if it read "Mortgagors" whenever the sense of this Deed of Trust so requires and if there shall be more than one Mortgagor, the Lender Obligations of the Mortgagors shall be joint and several. 31. No Waivers, etc. Any failure by Agent to insist upon the strict performance by Mortgagor of any of the terms and provisions of this Deed of Trust shall not be deemed to be a waiver of anyof the terms and provisions hereof, and Agent, notwithstanding any such failure, shall have the right thereafter to insist upon the strict performance by Mortgagor of any and all of the terms and provisions of this Deed of Trust to be performed by Mortgagor. Agent may release, regardless of consideration and without the necessity for any notice to or consent by the holder of any subordinate lien on the Mortgaged Property, any part of the security held for the Lender Obligations secured by this Deed of "Crust without, as to the remainder of the security, in any way impairing or affecting t13e lien of this Deed of Trust or the priority of such lien over any subordinate lien, mortgage or deed of trust. Agent may, iu Agent's sole and reasonable discretion, (i) in the case of a Default, determine whether such Default has been cured, and (ii) in the case of an >vent of Default, by Mortgagor, accept or reject any proposed cure of an );vent of i. 18 LIL3D/1907304.1 ~ aF dz Noo75sos Default. Unless and until Agent accepts any proposed cure of an Event of Default, such Event of Default shall be deemed to be continuing for purposes of this Deed of Trust, the Credit Agreerents and each other Lender Agreement. 32. Governing Law, etc. THIS MORTGAGE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEBRASKA; PROVIDED, HOWEVER, THAT THE CREDIT AGREEMENT IS, BY ITS TERMS, GOVERNED >i3Y THE INTERNAL LAWS OF THE STATE OF MASSACI~USETTS AS PROVIDED THEREIN, AND, IN THE EVENT THAT IT BECOMES NECESSARY, IN CONNECTION WITH TIIE ENFORCEMENT OF THIS llEED OF TRUST OR OTHERWISE, TO CONSTRUE OR ENFORCE TAE AGENT OBLIGATIONS (WHICH AGENT OBLIGATIONS ARE SECURED BY THIS MORTGAGE), THE CREDIT AGREEMENTS SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACIIUSETTS. 33. Certain Definitions. Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, words used in this Deed of Trust shall be used interchangeably in singular or plural form and the word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or owners of the Mortgaged Property or any part thereof or interest therein", the word "Agent" shall mean "Agent or any successor agent for the Lenders", and the words "Mortgaged Property" shall include all or any portion of the Mortgaged Property or interest therein. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa. The captions in this Deed of Trust are for convenience or reference only and in no way limit or amplify the provisions hereof. 34. Certain Matters Relating to Mortgaged Property. Notwithstanding anything contained herein to the contrary: (a) Principles of Construction. In the event of any inconsistencies between the terms and conditions of this Section 34 and the terms and conditions of this Deed of Trust, the terms and conditions of this Section 34 shall control and be binding. (b) Interest After Default. 1f any payment due hereunder or pursuant to the Credit Agreements or any other Lender Agreement by Mortgagor is not paid when due, either at stated or accelerated maturity or pursuant to any of the terms hereof, then, and in such event, Mortgagor shall pay interest thereon from and after the date on which such payment first becomes due at the interest rate provided for in the Credit Agreements and such interest shall be due and payable, on demand, at such rate until the entire amount due is paid to Agent, whether or not any action shall have been taken or proceeding commenced to recover the same or to foreclose this Deed of Trust. Nothing in this Section 34 or in any other provision of this Deed of Trust shall constitute an extension of the time of payment of the Loans. After entry of a judgment on either Credit Agreement, or any other Lender Agreement or'a judgment in mortgage foreclosure hereunder, interest shall continue to accrue under this Deed of Trust at the rates set forth in the Credit Agreements. This Deed of Trust shall not, solely for purposes of determining interest L 113D/ 1907304. I 19 a~ of oL_9 Flr,; ~. ;: ~oo~5sos payable under the Credit Agreements, merge with any judgment on either Credit Agreement or any other Lender Agreement or a judgment in mortgage foreclosure under this Deed of Trust. (c) Additional Advances and Disbursements; Costs of Enforcement. If any Event of Default exists, Agent shall have the right, but not the obligation, to cure such Event of Default in the name and on behalf of Mortgagor. All sums advanced and expenses incurred at any time by Agent under this Section 34(c), or otherwise under this Deed of Trust, the Credit Agreements or any other Lender Agreement or applicable law, shall bear interest from the date that such sum is advanced or expense incurred, to and including the date of reimbursement, computed at the interest rate as set forth in the Credit Agreements, and all such sums, together with interest thereon; shall be secured by this Deed of Trust. (d) Acceleration Remedv. Subject to the notice and cure requirements of this Deed of Trust and the Credit Agreements, upon Mortgagor's breach of any covenant or agreement contained herein, including, but not limited to, the covenants to pay when due any sums secured by this Deed of Trust, Agent, in its sole judgment and discretion, may declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may foreclose this Deed of Trust by judicial proceedings and may invoke any other remedies permitted by applicable law or provided herein. Agent shall be entitled to collect all costs and expenses incurred in pursuing such remedies. 35. Satisfaction of Prior Encumbrance. To the extent the Loans made to Mortgagor and IEC pursuant to the Credit Agreements are used to pay indebtedness secured by any outstanding lien, security interest, charge or prior encumbrance against all or any portion of the Mortgaged Property, such proceeds shall be deemed to have been advanced by Agent at Mortgagor's request, and Agent shall be subrogated to any and all rights, security interests and liens owned by any owner or holder of such outstanding liens, security interests, charges or encumbrances, irrespective of whether said liens, security interests, charges or encumbrances are released, and it is expressly understood that, in consideration of the payment of such other indebtedness by Agent, Mortgagor hereby waives and releases all demands and causes of action for offsets and payments to, upon and in cormection with the said indebtedness. 36. Inconsistency with Credit Agreements. To the fullest extent possible, the terms and provisions of the Credit Agreements shall be read together with the terms and provisions of this Deed of Trust such that the terms and provisions of this Deed of Trust shall supplement, rather than conflict with, the terms and provisions of the Credit Agreements; provided, however, that, notwithstanding the foregoing, in the event any of the terms or provisions of this Deed of Trust conflict with any of the terms or provisions of the Credit Agreements, such that it is impractical for such terms or provisions to coexist, the terms or provisions of the Credit Agreements shall govern and control for all purposes; and, provided further, that the inclusion in this Deed of Trust of terms and provisions, supplemental rights or remedies in favor of a secured party, but which are not addressed in the Credit Agreements, shall not be deemed to be a conflict with the Credit Agreements, and all such additional terms, provisions, supplemental rights or remedies contained herein shall be given full force and effect. 20 W I3D/1907304. I ~~ ofaq i 20~'~5606 37. Loan and Credit Agreements. Mortgagor is a party to and/or is fully familiar with the terms and provisions of the Credit Agreements and each Lender Agreement. Al] representations and warranties made by Mortgagor in the Credit Agreements and/or in any other Lender Agreement are incorporated herein by reference and are hereby made by Mortgagor as to itself and the Mortgaged Property as though such representations and warranties were set forth at length herein as the representations and warranties of Mortgagor. In addition, Mortgagor hereby makes the following property-specific representations: (a) Zonine, Building and Land Use Requirements. To the bestknowledge of Mortgagor, the Premises complies with all material requirements of all applicable laws and ordinances with respect to zoning, subdivision, construction, building and land use, including, without limitation, requirements with respect to parking, access and certificates of occupancy (and similar certificates or permits). Mortgagor has not received any notice of, or other communication with respect to, an alleged violation with respect to any of the foregoing. To the best knowledge of Mortgagor, (i) all of the Improvements lie wholly within the boundaries and building restriction lines of the Land, and (ii) no improvements on adjoining properties encroach upon the Land, and no easements or other encumbrances upon the Land encroach~upon or under any of the Improvements or any portion of the Mortgaged Property. (b) Taxes-and Other Payments. Mortgagor has filed all federal, state, commonwealth, county, municipal and city income and other tax returns required to have been filed by it as of the date hereof and has paid all taxes and other such impositions which have become due pursuant to such returns'or pursuant to any assessments or charges received by it as of the date hereof, and Mortgagor does not know of any basis for any additional assessment or charge in respect of any such taxes or other Impositions. Mortgagor has paid in full all sums owing or.claimed for labor, material, supplies, personal properly (whether or not forming a fixture hereunder) and services of every kind and character used, furnished or installed in or on the Mortgaged Property that are now due and owing and no claim for same exists or will be permitted to be created, except such claims as may arise in the ordinary course of business and that are not yet past due. The terms and provisions of this clause (c) are expressly subject to the limited qualifications and exceptions set forth in Section 4.8 of each Credit Agreement. (c) Power to Create Lien and Security. Mortgagor has full power and lawful authority to grant, bargain, sell, assign, transfer, mortgage and convey afirst-priority lien and security interest in all of the Mortgaged Property in the manner and form herein provided and without obtaining the authorization, approval, consent or waiver of any Person. 38. No Partnership. Nothing contained in this Deed of Trust is intended to, or shall be construed to, create to any extent and in any manner whatsoever any partnership, joint venture, or association between Mortgagor and Agent, or in any way make Agent a co-principal with Mortgagor with reference to i:he Mortgaged Property, and any inferences to the contrary are hereby expressly negated. 21 ~iavn vo~3oa. i a~" ~~ ~ 9 i <<,. >: ~oo~5sos 39. Headines. The Section headings herein are inserted for convenience of reference only and shall in no way alter, modify,or def ne, or be used in construing, the text of such Sections. 40. Defense of Claims. Mortgagor shall promptly notify Agent in writing of the commencement of any legal proceedings affecting Mortgagor's title to the Mortgaged Property or Agent's lien on or security interest in the Mortgaged Property, or any part thereof, and shall take all such action, employing attorneys satisfactory to Agent, as may be necessary to preserve Mortgagor's and Agent's rights affected thereby. If Mortgagor fails or refuses to adequately or vigorously, in the sole judgment of Agent, defend Mortgagor's or Agent's rights"to the Mortgaged Property, Agent may take such action on behalf of and in the name of Mortgagor and at Mortgagor's expense. All costs, expenses dnd attorneys' fees incurred by Agent (or its agents) pursuant to this Section 40 or in connection with the defense by Agent of any claims, demands or litigation relating to Mortgagor, the Mortgaged Property or the transactions contemplated in this Deed of Trust shall be paid by Mortgagor upon written demand, plus interest thereon from the date of the advance by Agent until reimbursement of Agent at the interest rate as set forth in the Credit Agreement. 41. Exculpation Provisions. MORTGAGOR SPECIFICALLY AGREES TI-IAT IT HAS A DUTY TO READ THIS DEED OF TRUST; AND AGREES THAT IT IS CHARGED WITFI NOTICE AND KNOWLEDGE OF THE TERMS OF THIS DEED OF TRUST; THAT IT I-fAS IN FACT READ THIS DEED OF TRUST AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF TIIE TERMS, CONDITIONS AND EFFECTS OF THIS DEED OF TRUST; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGIIOUT TIdE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS DEED OF TRUST AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS DEED Or TRUST; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS DEED OF TRUST RESULT IN THE ASSUMPTION BY MORTGAGOR OF TI-IE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION. MORTGAGOR AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OP "PHIS DEED OF TRUST ON THE BASIS THAT IT HAD NO NOTICE OR KNOWLEDGE OF SUCI-I PROVISION OR THAT TIIE PROVISION IS NOT "CONSPICUOUS." 42. Counterparts; Selected Legal Descriptions. This Deed of Trust may be executed in any number of counterparts, each of which shall be deemed to bean original, and all of which, taken together, shall be deemed to constitute one single instrument. 43. Termination. Upon the payment and performance in full of the Lender Obligations, this Deed of Trust and the estate hereby granted shall cease and become void. Notwithstanding the foregoing, Agent agrees that it shall, at the request and sole expense of such Mortgagor, execute and deliver to Mortgagor a recordable release and satisfaction of this Deed oi' Trust. [NO FURTHER TEXT ON THIS PAGE; SIGNATURE PAGE FOLLOWS] 22 LInD/1907304.1 ~d n~dq ,~ i r ;~ ; .,7„ I ~; 200'5606 IN WITNESS WHEREOF, this Deed of Trust has been duly executed by Mortgagor on November 1, 2007 and is intended to be effective as the date first above written. MORTGAGOR: N.E. COLORADO CELLULAR, INC. A Colorado corporation ; By: ~~~~i~ Michael J. Umano, Vice resident LIBD/1907304.1 23 a 7 ota 9 200'75606 ACKNOWLEDGEMENT COMMONWEALTH OF MASSACHUSETTS ) SS: COUNTY OF PLYMOUTH ) The Foregoing instrument was acknowledged before me this 1st day of November, 2007, by Michael J. Umano the Vice President of N.E. COLORADO CELLULAR, INC., a Colorado corporation, on behalf of said corporation. He has produced a State of Massachusetts driver's license as identification. Sign Name• .L otary ublic ~ ~ j Print Name: Kristin Lee Correa-Harrington [NOTARIAL SEAL] My Commission Expires: ~~ KRISTIN LEE CORREA-HARRINGTON otary Publlc COMMCNWIAITN OP MABBACHU8FTT8 MY CommUdon Fxplrotluna~_fo;.900e *,., LIBD/1907380.1 d~' of~ 9 2oo~r56os Schedule A Description of the Land A tract of land. being part of the South 112 of the South 1/2 of the southeast 114 0- Saelion 32, fiownship 6 Norih, Range 12 West of the 6th.p.m., Adams County, Nebraska more panGcularly described as follows; Beginning at a point 7'2x,00 feet Wesf antl 336,0 foot North of the Southeast carver of said &ection 22 and assumed the East Ilea ai Ne1en Avenue {if extended Northerly) an Avenue 1ta NaCstein, Adams County, Nebraskd, as bearing North 00 degrees 20 minutes t9 seconds West and all bearings contained herein are relative thereto; tttenca North 00 degrnn.s 20 minutes 19 seconds West andan the East line ofHelan Avenue (If extended Northerly) a dlgtance of 917.04 feet to fire North line ofthe South'f/2 cf the Saufh 112 41 the Southeast tl4; thence North it9 degrees 99 minutes ti5 seconds West and pn said North line a distance of 702,98 (eat to the East Ilea of Claub Avenue {If extended Northerly),. an Avenue in Natsteln, Adams County, Nebraska; thence South Op degrees 38 minutes 4d seconds. East end an said East line of C'laub Avenue {if extended Northerly) a distance of 925.19 last to the North Ilea of Nuckfaldt's North Slde Addition, to Nolstain, Adams County, Nebraskp; thenoe N 89 degrees 4D minutes,t2 seconds East and on the North Ilne of said Huckfoldt's North Side Addition a distance of 700,69 feet totho place of beginning: Schc~ule A Description of tl~e Laud 'THE SUUT.Ii 503 FEL'1" OF THE WEST 503 FEET SV~~l!4SW1/4 OF SECTION 17, TUW1vSHIP 8 NCPRTH, It~+4NGE 9 WEST" OF THF, Cr" P.M., ADAMS COUNI`Y, _'v'IrI3ItAvICA, ~IOVJ ISNO'17i'N .AS LOT I, VIAERO SUBDIVISION, A SUI3DIVISIC3N ]~EIM~; PART OF Z'HE'. StiW.1/4 OF THE SWl/G OF SECTION 17, TOWNSHIP 8 MOP..TH, RANriE 9 WEST OF THE 6r" P,M., ADAMS CO[INTY, NEBRASl{A, ~96~~9