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EXHIBIT 4.5
CROSS REFERENCES:
LAFAYETTE COUNTY, MS - BOOK 628, PAGE 529
QUITMAN COUNTY, MS - BOOK 196, PAGE 834
TUNICA COUNTY, MS - BOOK 136, PAGE 000
XXXXXX XXXXXX, XXXXXX XXXXXXXX XXXXXXXX, XX -
BOOK 617, PAGE 669
XXXX COUNTY, MS - BOOK 411, PAGE 646
XXXXXXXX COUNTY, MS - BOOK 195, PAGE 622
LOAN NO. T0310
LOAN NO. T0347
FIRST AMENDMENT AND SUPPLEMENT TO DEED OF TRUST,
SECURITY AGREEMENT, AND FIXTURE FILING
FROM
MISSISSIPPI ONE CELLULAR TELEPHONE COMPANY
TO
XXXXX XXXXXXX, TRUSTEE
FOR
COBANK, ACB
(FORMERLY KNOWN AS NATIONAL BANK FOR COOPERATIVES)
This instrument was prepared by, and after recording should be returned
to, Xxxxx X. Xxxxxxx, Esq., Xxxxxxxxxx, Xxxxxx & Xxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, telephone (000) 000-0000.
This instrument, in addition to being a deed of trust on real property,
is a financing statement for goods that are or are to become fixtures related
to the real estate described herein, and should be appropriately indexed.
Mississippi One Cellular Telephone Company is the record lessee of the real
estate.
This instrument secures a line of credit used primarily for business,
commercial or agricultural purposes.
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This cover sheet is a part of this instrument and should be recorded
with it.
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Indexing Instruction: This instrument affects land located as follows:
Lafayette County - NE 1/4 of Section 25, Township 8 South, Range 4
West and SW 1/4 of Section 32, Township 8 South,
Range 3 West
Quitman County - SE 1/4 of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 0
Xxxx
Xxxxxx Xxxxxx - SW 1/4 of Section 5, Township 4 South, Range 11
West
Panola County - SW 1/4 of Section 27, Township 9 South, Range 7
West 2d Judicial District
Xxxx County - NE 1/4 of Section 16, Township 6 South, Range 7
Xxxx
Xxxxxxxx County - SW 1/4 of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0
Xxxx
Xxxxxxx Xxxxxx - NE 1/4 of Section 7, Township 30 North, Range 3
West
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FIRST AMENDMENT AND SUPPLEMENT TO DEED OF TRUST,
SECURITY AGREEMENT, AND FIXTURE FILING
THIS FIRST AMENDMENT AND SUPPLEMENT TO DEED OF TRUST, SECURITY
AGREEMENT, AND FIXTURE FILING (this "First Amendment") is made and entered into
as of May 15, by and between MISSISSIPPI ONE CELLULAR TELEPHONE COMPANY, a
Louisiana corporation (the "Grantor"), and COBANK, ACB, a national banking
association (formerly known as National Bank for Cooperatives; the
"Beneficiary"), having an address at 000 Xxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000;
RECITALS:
WHEREAS, CTC Financial, Inc. (the "Borrower") and the Beneficiary
entered into that certain Loan Agreement, dated as of September 27, 1994 (the
"Original Loan Agreement"); and
WHEREAS, as security for the Borrower's obligations under the Original
Loan Agreement, the Grantor executed and delivered that certain Deed of Trust,
Security Agreement and Fixture Filing, dated September 27, 1994 (the "Deed of
Trust"), pursuant to which the Grantor granted to the Beneficiary a first
priority security interest and lien on the real property described therein; and
WHEREAS, the Borrower and the Beneficiary are entering into (i) that
certain Amended and Restated Loan Agreement, dated as of even date herewith,
amending and restating the Original Loan Agreement and (ii) that certain Loan
Agreement, dated as of even date herewith (collectively, the "Additional Loan
Agreements"); and
WHEREAS, as an inducement to the Beneficiary to enter into the
Additional Loan Agreements and to make the loans provided for therein, the
Grantor has agreed to amend the Deed of Trust as herein provided; and
WHEREAS, by amendment to its charter documents, the Beneficiary has
changed its name from National Bank for Cooperatives to CoBank, ACB;
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein and intending to be legally bound hereby, the Grantor hereby
agrees with the Beneficiary as follows:
1. The name of the Beneficiary in the Deed of Trust is changed to
"CoBank, ACB."
2. The "Background Statement" on pages 1 and 2 of the Deed of
Trust is hereby amended and restated to read in its entirety as follows:
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Loan No. T0310
Loan No. T0347
BACKGROUND STATEMENT
"The Borrower and the Beneficiary previously entered into that
certain Loan Agreement, dated as of September 27, 1994 (the "Original
Loan Agreement"), pursuant to which the Beneficiary agreed to loan to
the Borrower up to $3,800,000. The Borrower's obligation to repay
amounts advanced under the Original Loan Agreement is evidenced by a
Promissory Note dated as of September 27, 1994, made by the Borrower
in favor of the Beneficiary, having a final maturity date of December
20, 2002 (the "Original CoBank Note"). The proceeds of such loan were
reloaned by the Borrower to the Grantor for the purposes set forth in
the Original Loan Agreement. Such reloan is evidenced by that certain
Promissory Note dated as of September 27, 1994, made by the Grantor in
favor of the Borrower in the original principal amount of $3,800,000
and having a final maturity date of December 20, 2002 (the "Original
Note"), which Original Note has been assigned to the Beneficiary. As
a condition to the Beneficiary's obligation to advance funds under the
Original Loan Agreement, the Grantor executed and delivered that
certain Continuing Guaranty, dated as of September 27, 1994, in favor
of the Beneficiary (the "Original Guaranty"), guaranteeing the
"Obligations" (as defined in the Original Guaranty). As a further
condition to the obligation of the Beneficiary to advance funds under
the Original Loan Agreement, the Grantor executed and delivered that
certain Security Agreement, dated as of September 27, 1994, in favor
of the Beneficiary (the "Security Agreement") and this Deed of Trust
to secure the Grantor's performance under the Original Guaranty and
under the Original Note and to secure the Original CoBank Note.
The Borrower and the Beneficiary have now entered into that
certain Amended and Restated Loan Agreement, dated as of even date
herewith (the "Mississippi One Loan Agreement"), pursuant to which the
Original Loan Agreement was amended and restated to increase the
availability of the loan thereunder to $17,400,000. The Borrower's
obligation to repay amounts advanced under the Mississippi One Loan
Agreement is evidenced by an Amended and Restated Promissory Note
dated as of even date herewith, made by the Borrower in favor of the
Beneficiary, having a final maturity date of December 20, 2003 and
amending and restating the Original Note (said promissory note, as the
same may be amended, modified, supplemented, extended or restated from
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Loan No. T0347
time to time is hereinafter referred to as the "Amended CoBank Note").
The proceeds of such loan are to be reloaned by the Borrower to the
Grantor for the purposes set forth in the Mississippi One Loan
Agreement. Such reloan is evidenced by that certain Amended and
Restated Promissory Note dated of even date herewith, made by the
Grantor in favor of the Borrower in the original principal amount of
$17,400,000 and having a final maturity date of December 20, 2003 and
amending and restating the Original Note (said promissory note, as the
same may be amended, modified, supplemented, extended or restated from
time to time is hereinafter referred to as the "Mississippi One
Note"), which Mississippi One Note has been assigned to the
Beneficiary. The Borrower and the Beneficiary have now also entered
into that certain Loan Agreement, dated as of even date herewith (the
"Mercury Loan Agreement"), pursuant to which the Beneficiary agreed to
loan the Borrower up to $5,000,000. The Borrower's obligation to
repay amounts advanced under the Mercury Loan Agreement is evidenced
by a Promissory Note dated of even date herewith, made by the Borrower
in favor of the Beneficiary, having a final maturity date as provided
in the Mercury Loan Agreement (said promissory note, as the same may
be amended, modified, supplemented, extended or restated from time to
time is hereinafter referred to as the "CoBank Note"). The proceeds
of such loan are to be reloaned by the Borrower to Mercury, Inc.
("Mercury") for the purposes set forth in the Mercury Loan Agreement.
Such reloan is evidenced by that certain Promissory Note dated of even
date herewith, made by Mercury in favor of the Borrower in the
original principal amount of $5,000,000 and having a final maturity
date as provided in the Mercury Loan Agreement (said promissory note,
as the same may be amended, modified, supplemented, extended or
restated from time to time is hereinafter referred to as the "Mercury
Note"), which Mercury Note has been assigned to the Beneficiary.
As conditions to the Beneficiary's obligation to advance funds
under the Mississippi One Loan Agreement and the Mercury Loan
Agreement: (a) the Grantor has executed and delivered that certain
Amended and Restated Continuing Guaranty, dated as of even date
herewith, in favor of the Beneficiary and amending and restating the
Original Guaranty (said guaranty, as the same may be amended,
modified, supplemented, extended, or restated from time to time is
hereinafter referred to as the "Mississippi One Guaranty"),
guaranteeing the "Obligations" (as defined in the Mississippi One
Guaranty); and (b) Mercury has executed and delivered that certain
Continuing Guaranty, dated as of even date herewith, in favor of the
Beneficiary (said guaranty, as the same may be amended, modified,
supplemented, extended, or restated from time to time is hereinafter
referred to as the "Mercury Guaranty"), guaranteeing the "Obligations"
(as defined in the Mercury Guaranty). As a further condition to the
Beneficiary's obligations to advance funds under the Mississippi One
Loan Agreement and the Mercury Loan Agreement, the Grantor has
executed and delivered that certain First Amendment and Supplement to
Security Agreement, dated as of even date herewith, in favor of the
Beneficiary (the Security Agreement, as amended, the "Amended Security
Agreement") and this Amendment to secure the Grantor's performance
under the Mississippi One Guaranty and the Mississippi One Note, and
to secure the Mercury Guaranty, the Mercury Note, the Amended CoBank
Note and the CoBank Note.
The Mississippi One Loan Agreement, the Mercury Loan
Agreement, the Amended Security Agreement, the Mississippi One
Guaranty, the Mercury Guaranty, the Mississippi
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Loan No. T0347
One Note, the Amended CoBank Note, the Mercury Note and the CoBank
Note, this Amendment, and all other instruments evidencing, securing
or otherwise relating to the indebtedness and obligations hereinabove
described are hereinafter referred to as the "Loan Documents.""
3. The first full paragraph on page 4 of the Deed of Trust is
hereby amended and restated to read in its entirety as follows:
"This Deed of Trust is given to secure the payment and
performance of the following described obligations (collectively, the
"Secured Obligations"): (a) all of the Grantor's obligations, whether
now existing or hereafter arising, under the Mississippi One Guaranty;
(b) all of the Grantor's obligations, whether now existing or
hereafter arising, under the Mississippi One Note; (c) all of
Mercury's obligations, whether now existing or hereafter arising,
under the Mercury Guaranty and the Mercury Note; (d) all of Borrower's
obligations, whether now existing or hereafter arising, under the
Mississippi One Loan Agreement, the Mercury Loan Agreement, the
Amended CoBank Note and the CoBank Note; (e) all advances,
re-advances, renewals, extensions, replacements, consolidations,
modifications, restatements and amendments of the Loan Documents and
of all such other sums, obligations and amounts (it being agreed no
such renewal, extension, consolidation, modification, restatement or
amendment shall affect the security title or priority hereof); and (f)
all other indebtedness and liabilities of the Borrower, Mercury or the
Grantor to the Beneficiary of every kind and description whatsoever,
whether now existing or hereafter arising, fixed or contingent, as
primary obligor or as guarantor or surety, acquired directly or by
assignment or otherwise, liquidated or unliquidated, regardless of how
they arise or by what agreement or instrument they may be evidenced,
including, without limitation, all loans, advances and other extension
of credit and all covenants, agreements, and provisions contained in
all loan and other agreements between the parties (it being agreed
that no such additional indebtedness shall affect the security title
or priority hereof)."
4. Exhibits A and B to the Deed of Trust are hereby amended by
adding to them the information set forth on Exhibits A-1 and B-1 attached to
this First Amendment, respectively.
5. The Grantor conveys and warrants to the Trustee and her
successors all of the Grantor's rights and interests in and to:
(a) that land leased by the Grantor located in Coahoma
County described in Exhibit A-1 (the "Coahoma Property") pursuant to
the lease of such land described in Exhibit B-1 (the "Leasehold
Lease");
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Loan No. T0347
(b) all Improvements (as defined in the Deed of Trust);
(c) all easements, rights-of-way, strips and gores of
land, streets, ways, alleys, passages, sewer rights, water rights and
powers, water courses, minerals, crops, timber and other emblements
now or hereafter located on the Coahoma Property or under or above the
same or any part or parcel thereof, and all estates, rights, titles,
interests, tenements, hereditaments and appurtenances, reversions and
remainders whatsoever, in any way belonging, relating or appertaining
to the Coahoma Property or any part thereof, or which hereafter shall
in any way belong, relate or be appurtenant thereto, whether now owned
or hereafter acquired by the Grantor;
(d) all easements, rights, rights-of-way, satellite
dishes, towers, equipment and all other personal property comprising
the utility system operated by the Grantor;
(e) all monies and proceeds from the Coahoma Property,
the Improvements and the Leasehold Lease, including, without
limitation, from leases, subleases, tenant contracts, rental
agreements, contracts, licenses, permits, rents, issues or profits,
including, but not limited, to all rents, refunds, rebates, tenant
reimbursements, condemnation awards and proceeds of the sale of,
insurance on or other borrowings secured in whole by any of the
Coahoma Property, the Improvements or the Leasehold Lease, or such
leases, subleases, tenant contracts, rental agreements, contracts,
licenses, permits, rents issues or profits; reserving only the right
to the Grantor (except as otherwise provided herein) to collect the
same so long as there is no Default (as defined in the Deed of Trust)
which shall have occurred and be continuing;
(f) all claims and causes of action arising from or
otherwise related to any of the foregoing, and all rights and
judgments related to any legal actions in connection with such claims
or causes of action, and all cash (or evidences of cash or of rights
to cash) or other property or rights thereto relating to such claims
or causes of action; and
(g) all other real property of every kind, nature and
description, and wheresoever located, now owned or leased or hereafter
acquired or leased by Grantor.
This conveyance of the property described above is in trust to secure prompt
payment of the obligations secured by the Deed of Trust and this First
Amendment and any and all other indebtedness and liabilities of the Borrower or
the Grantor to the Beneficiary of every kind and description whatsoever,
whether now existing or hereafter arising, fixed or contingent, as primary
obligor or as guarantor or surety, acquired directly or by assignment or
otherwise, liquidated or unliquidated, regardless of how they arise or by what
agreement or instrument they may be evidenced, including, without limitation,
all loans, advances and other extension of credit and all
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covenants, agreements, and provisions contained in all loan and other
agreements between the parties (it being agreed that no such additional
indebtedness shall affect the security title or priority hereof).
6. After giving effect to the amendments to and restatement of
the Deed of Trust set forth in this First Amendment, the representations and
warranties of the Grantor set forth in the Deed of Trust are true and correct
as of the date hereof as if made on the date hereof.
7. It is the intention of the parties hereto that this First
Amendment shall not constitute a novation and shall in no way adversely affect
or impair (i) the validity of the Loan Documents or (ii) the validity or
priority of the security interest created by the Deed of Trust, it being the
intention of the parties hereto merely to amend and restate the Deed of Trust
as expressly set forth herein. To the extent not inconsistent herewith, all of
the terms and conditions of the Deed of Trust shall remain in full force and
effect and are hereby ratified and confirmed by the Grantor.
8. This First Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original and shall be binding
upon all parties and their respective permitted successors and assigns, and all
of which taken together shall constitute one and the same agreement.
9. This First Amendment shall be governed by and construed in
accordance with the laws of the State of Mississippi, without reference to
choice of law doctrine.
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IN WITNESS WHEREOF, the Grantor and the Beneficiary, acting by and
through their duly authorized officers, have executed this instrument on the
date below their respective signatures, but effective on May 15, 1996.
MISSISSIPPI ONE CELLULAR
TELEPHONE COMPANY
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXXX
--------------------------------
Title: PRESIDENT
-------------------------------
Date: 7/8/96
--------------------------------
COBANK, ACB
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
--------------------------------
Title: SR. V.P.
-------------------------------
Date: 7/24/96
-------------------------------
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Loan No. X0000
Xxxx Xx. X0000
XXXXX XX XXXXXXXXX
XXXXXX OF CALCASIEU
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for
the jurisdiction aforesaid, the within named XXXXXX X. XXXXXXX, who
acknowledged that s/he is the PRESIDENT of Mississippi One Cellular Telephone
Company, a Louisiana corporation, and that for and on behalf of said
Mississippi One Cellular Telephone Company and as its act and deed, s/he signed
and delivered the above and foregoing instrument of writing on the day and in
the year therein mentioned, after first having been duly authorized to do so.
WITNESS my hand and official seal in the county and state last
aforesaid, this 1st day of July, 1996.
/s/ XXXXXX X. XXXXX
---------------------------------------
Notary Public
My commission expires: LIFETIME COMMISSION
-------------------
[NOTARIAL SEAL]
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Loan No. T0310
Loan No. T0347
STATE OF GEORGIA
COUNTY OF XXXXXXX
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for
the jurisdiction aforesaid, the within named XXXXXX X. XXXXX, who acknowledged
that s/he is the Sr. V.P. of CoBank, ACB (formerly known as National Bank for
Cooperatives), a federally chartered bank, and that for and on behalf of said
bank and as its act and deed, s/he signed and delivered the above and foregoing
instrument of writing on the day and in the year therein mentioned, after first
having been duly authorized to do so.
WITNESS my hand and official seal in the county and state last
aforesaid, this 24th day of July.
/s/ XXXXX X. SOUTH
-------------------------------------
Notary Public
My commission expires:
---------------
[NOTARIAL SEAL]
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Loan No. T0347
EXHIBIT A-1
LEGAL DESCRIPTION LEASEHOLD PROPERTIES
Commencing at the northeast corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 0
Xxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxx; thence
South 0 degrees 48'10" East, 2046.54 feet along the centerline of the
Ferry Landing Road; thence
North 88 degrees 32'00" West, 380.61 feet to the POINT OF BEGINNING
of the land herein described; thence
North 88 degrees 32'00" West, 502.29 feet to a point; thence
North 31 degrees 28'00" East, 502.29 feet to a point; thence
South 28 degrees 32'05" East, 502.29 feet to the POINT OF BEGINNING,
containing 2.51 acres, and all being in the northeast Quarter
of Section 7, Township 30
North, Range 3 West, in Coahoma County, Mississippi
Record Owner is Xxxxxx Xxxx.
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EXHIBIT B-1
LESSOR DATE OF LEASE COUNTY
------ ------------- ------
Xxxxxx Xxxx April 17, 1996 Coahoma
