Exhibit 10.58
================================================================================
SUPPLEMENT TO THE
RESTATED MORTGAGE
AND
SECURITY AGREEMENT
Made By and Between
CAP ROCK ELECTRIC COOPERATIVE, INC.
Mortgagor
and
NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE CORPORATION
Mortgagee
Dated as of
MAY 17, 1990
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY AND SECURES FUTURE
ADVANCES MADE BY THE MORTGAGEE TO THE MORTGAGOR AND FUTURE OBLIGATIONS OF THE
MORTGAGOR TO THE MORTGAGEE.
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS.
================================================================================
CFC Electric Mortgage for Non-REA Borrowers
CFC Form C49
5/90
SUPPLEMENT, dated as of MAY 17 ,1990, to the RESTATED MORTGAGE AND
SECURITY AGREEMENT made by and between CAP ROCK ELECTRIC COOPERATIVE, Inc.
(hereinafter called the "Mortgagor"), a corporation existing under the laws
of the State of TEXAS, and NATIONAL RURAL UTILITIES COOPERATIVE FINANCE
CORPORATION (hereinafter called "CFC" or "Mortgagee"), a corporation existing
under the laws of the District of Columbia.
WHEREAS, the Mortgagor, for value received, has heretofore duly
authorized and executed, and has delivered to Mortgagee, or has assumed the
payment of, a certain mortgage note, or certain mortgage notes, all payable
to the order of Mortgagee, in installments of which the certain mortgage note
or notes (hereinafter collectively called the "Outstanding Note(s)")
identified in the Instruments Recital are now outstanding and owned by
Mortgagee; and
WHEREAS, the Outstanding Notes are secured by the security
instrument(s) including this Supplement to the Restated Mortgage and Security
Agreement (hereinafter collectively called the "Mortgage") made by the
Mortgagor to the Mortgagee and identified in the Instrument Recital; and
WHEREAS, the Mortgagor has determined to borrow additional funds
from Mortgagee and has accordingly duly authorized, executed and delivered to
Mortgagee its mortgage note or notes (identified in the Instruments Recital
and hereinafter collectively called the "Notes") to be secured by the
Mortgage, as amended and supplement hereby, of the property hereinafter
described; and
WHEREAS, the instruments referred to in the preceding recitals and
the Maximum Debt Limit referred to in Appendix A of the Restated Mortgage and
Security Agreement, as amended hereby are identified as follows:
INSTRUMENTS RECITAL
"Current CFC Note" (Of even date herewith):
Interest Rate
PRINCIPAL AMOUNT (PER ANNUM) FINAL PAYMENT DATE
$1,612,903 At the rate or rates set March 22, 2025
forth in the loan agree-
ment dated as of even date
herewith between Mortgagee
and Mortgagor
"Outstanding Note(s)"
FIFTEEN (15) certain mortgage Note(s) in an aggregate principal amount of
$46,158,594, all of which will finally mature on or before March 22, 2025
"Mortgage":
Instrument Date
---------- ----
1. Supplemental Mortgage and Security Agreement May 15, 1973
2. Supplement to the Supplemental Mortgage and March 18, 1982
Security Agreement
3. Restated Mortgage and Security Agreement Sept. 21, 1988
"Maximum Debt Limit", as amended hereby, shall be one hundred million dollars
($100,000,000).
WHEREAS, Mortgagee is the owner of the Outstanding Note(s) and the
Mortgage; and
WHEREAS, it was the intention of the Mortgagor at the time of the
execution of the Mortgage (or, if the Mortgage consists of more than one
instrument, at the time of the execution of the earliest instrument thereof)
that the property of the Mortgagor of the classes described therein, as being
mortgaged or pledged thereby, or intended so to be, whether then owned or
thereafter acquired, would secure certain notes of the Mortgagor executed and
delivered prior to the execution and delivery of the Mortgage (or, if the
Mortgage consists of more than one instrument, prior to the execution and
delivery of the earliest instrument thereof), and certain notes of the
Mortgagor when and as executed and delivered under and pursuant to the
Mortgage, as from time to time amended or supplemented, and it is intended by
the Mortgagor to confirm hereby the Mortgage and the property therein
described as being mortgaged or pledged, or intended so to be, as security
for the Outstanding Notes, and other notes of the Mortgagor when and as
executed and delivered under and pursuant to the Mortgage, as amended and
supplemented hereby; and
WHEREAS, the Mortgage provides that the Mortgagor shall, upon the
written demand of the Mortgagee duly authorize, execute, and deliver and
record and file all such supplemental mortgages and conveyances as may
reasonably be requested by the Mortgagee to effectuate the intention of the
Mortgage and to provide for the conveying, mortgaging and pledging of the
property of the Mortgagor intended to be conveyed, mortgaged or pledged by
the Mortgage to secure the payment of the principal of and interest on notes
executed and delivered thereunder and pursuant thereto, or otherwise secured
thereby, and the Mortgagee has in writing requested the execution and
delivery of this Supplement (hereinafter called "this Supplemental Mortgage")
to the Mortgage pursuant to such provision; and
WHEREAS, it is further intended by the Mortgagor, at the request and
with the consent of the Mortgagee, to amend the Mortgage in the respects
hereinafter set forth; and
WHEREAS, all acts, things, and conditions prescribed by law and by
the articles of incorporation and bylaws of the Mortgagor have been duly
performed and complied with to authorize the execution and delivery hereof
and to make the Mortgage, as amended and supplement hereby, a valid and
binding mortgage to secure the Outstanding Notes and other notes of the
Mortgagor when and as executed and delivered under and pursuant to the
Mortgage, as amended and supplemented hereby; and
WHEREAS, the Mortgagee is authorized to enter into this Supplemental
Mortgage; and
WHEREAS, to the extent that any of the property described or
referred to herein or in the Mortgage is governed by the provisions of the
Uniform Commercial Code of any state (hereinafter called the "Uniform
Commercial Code"), the parties hereto desire that this Supplemental Mortgage
and the Mortgage collectively be regarded as a "security agreement" under the
Uniform Commercial Code and that this Supplemental Mortgage be regarded as a
"financing statement" under the Uniform Commercial Code for said security
agreement.
NOW, THEREFORE, in consideration of the premises and the sum of $5
in hand paid by the Mortgagee to the Mortgagor, the receipt whereof by the
Mortgagor prior to the execution and delivery of this Supplement to the
Restated Mortgage and Security Agreement is hereby acknowledged this
Supplement to the Restated Mortgage and Security Agreement witnesseth as
follows:
1. The Mortgagor has executed and delivered this Supplemental
Mortgage and has granted, bargained, sold, conveyed, warranted, assigned,
transferred, mortgaged, pledged and set over, and by these presents does
hereby grant, bargain, sell, convey, warrant assign, transfer, mortgage,
pledge and set over, unto the Mortgagee and its respective assigns, all and
singular the real and personal property described in the Mortgage as being
mortgaged thereby and all and singular the real and personal property of the
Mortgagor falling within the classes of property embraced in the description
of the "Mortgaged Property" set forth in the Mortgage, including, without
limitation, all and singular the real and personal property of said
description heretofore or hereafter acquired by or constructed by or on
behalf of the Mortgagor, and wheresoever situate, including, without
limitation, the "Existing Electric Facilities" identified and the real estate
specifically described (by reference to deeds or otherwise) in the Mortgage
and mortgaged thereby (except such portions, if any, thereof as have been
released prior to the execution and delivery of this Supplemental Mortgage),
and including, without limitation, the property described, in Appendix A
attached hereto:
TOGETHER WITH all plants, works, structures, erections, reservoirs, dams,
buildings, fixtures and improvements now or hereafter located on any of the
properties conveyed by any and all of the aforesaid deeds mentioned above,
and all tenements, hereditament and appurtenances now or hereafter thereunto
belonging or in any wise appertaining.
The description of each of the properties conveyed by and through the
provisions of the aforesaid deeds is by reference made a part hereof as
though fully set forth at length herein.
AND ALSO including, without limitation:
I
All right, title and interest of the Mortgagor in and to all extensions and
improvements of the "Existing Electric Facilities", as provided above, and
additions thereto, including all substations, service and connecting lines (both
overhead and underground), poles, towers, posts, cross arms, wires, cables,
conduits, mains, pipes, tubes, transformers, insulators, meters, electrical
connections, lamps, fuses, junction boxes, fixtures, appliances, generators,
dynamos, water turbines, water wheels, boilers, steam turbines, motors,
switchboards, switch racks, pipelines, machinery, tools, supplies, switching and
other equipment, and any and all other property of every nature and description,
used or acquired for use by the Mortgagor in connection therewith;
II
All right, title and interest of the Mortgagor in, to and under any and all
grants, privileges, rights of way and easements now owned, held, leased, enjoyed
or exercised, or which may hereafter be owned, held, leased, acquired, enjoyed
or exercised, by the Mortgagor for the purposes of, or in connection with, the
construction or operation by or on behalf of the Mortgagor of electric
transmission or distribution lines, or systems, whether underground or overhead
or otherwise, or of any electric generating plant, wherever located;
III
All right, title and interest of the Mortgagor in, to and under any and all
licenses, franchises, ordinances, privileges and permits heretofore granted,
issued or executed, or which may hereafter be granted, issued or executed, to it
or to its assignors by the United States of America, or by any state, or by any
county, township, municipality, village or other political subdivision thereof,
or by any agency, board, commission or department of any of the foregoing,
authorizing the construction, acquisition, or operation of electric transmission
or distribution lines, or systems, or any electric generating plant or plants,
insofar as the same may by law be assigned, granted, bargained, sold, conveyed,
transferred, mortgaged, or pledged;
IV
All right, title and interest of the Mortgagor in, to and under any and all
contracts heretofore or hereafter executed by and between the Mortgagor and any
person, firm, or corporation providing for the purchase, sale or exchange of
electric power or energy by the Mortgagor together with any and all other
accounts, contract rights and general intangibles (as such terms are defined in
the applicable Uniform Commercial Code) heretofore or hereafter acquired by the
Mortgagor;
V
Also, all right, title and interest of the Mortgagor in and to all other
property, real or personal, tangible or intangible, of every kind, nature and
description, and wheresoever situated, now owned or hereafter acquired by the
Mortgagor, it being the intention hereof that all such property now owned but
not specifically described herein or acquired or held by the Mortgagor after
the date hereof shall be as fully embraced within and subjected to the lien
hereof as if the same were now owned by the Mortgagor and were specifically
described herein to the extent only, however, that the subjection of such
property to the lien hereof shall not be contrary to law;
Together with all rents, income, revenues, profits and benefits at any time
derived, received or had from any and all of the above-described property of
the Mortgagor.
TO HAVE AND TO HOLD the same forever, for the uses and purposes and upon the
terms, conditions, provisos and agreements expressed and declared in the
Mortgage, as amended and supplemented hereby.
2. The Outstanding Notes are hereby confirmed as notes of the
Mortgagor entitled to the security of the Mortgage, as amended and
supplemented by this Supplement to the Restated Mortgage and Security
Agreement, and of the property by the mortgage and this Supplement to the
Restated Mortgage and Security Agreement mortgaged and pledged, or intended
so to be, equally and ratably with one another and with other notes of the
Mortgagor when and as executed and delivered under and pursuant to the
Mortgage, as amended and supplemented hereby, without preference, priority or
distinction as to interest or principal (except as otherwise specifically
provided in the Mortgage, as amended and supplemented hereby) or as to lien
or otherwise, of any one of the Outstanding Notes or such other notes over
any other thereof and irrespective of the date of the execution, delivery or
maturity thereof, or of the assignment or negotiation thereof or otherwise.
3. Additional notes executed and delivered pursuant to Section 3.01
of Article III of the Mortgage, as amended hereby, are hereby included within
the terms "Additional Notes" and "Notes", as defined in Mortgage, as amended
hereby. The current CFC Note and refunding, renewal and substituted notes
executed and delivered pursuant to said Section 3.01 of Article III are
hereby included within the term "notes", as defined in the Mortgage, as
amended hereby.
4. The Mortgage is hereby amended by including therein, for purposes
of Appendix A of the Restated Mortgage and Security Agreement, the Maximum
Debt Limit provision contained in the Instruments Recital of this
Supplemental Mortgage.
5. All demands, notices, reports, approvals, designations, or
directions required or permitted to be given under the Mortgage, as amended
hereby, shall be in writing and shall be deemed to be property given if
mailed by registered mail addressed to the proper party or parties at the
following addresses:
As to the Mortgagor: Cap Rock Electric Cooperative, Inc.
Xxxx Xxxxxxx 00
Post Xxxxxx Xxx 000
Xxxxxxx, Xxxxx 00000-0000
As to the Mortgagee: National Rural Utilities Cooperative
Finance Corporation (CFC)
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
and as to any other person, firm, corporation or governmental body or agency
having an interest herein by reason of being the holder of any note or
otherwise, at the last address designated by such person, firm, corporation,
governmental body or agency to the Mortgagor and the Mortgagee. The Mortgagor or
the Mortgagee may from time to time designate to each other a new address to
which demands, notices, reports, approvals, designations or directions may be
addressed and from and after any such designation the address designated shall
be deemed to be the address of such party in lieu of the address hereinabove
given.
6. To the extent that any of the property described or referred to
herein and in the Mortgage is governed by the provisions of the Uniform
Commercial Code, the Mortgage and this Supplement to the Restated Mortgage
and Security Agreement, collectively, are hereby deemed a "Security
Agreement" under the Uniform Commercial Code, and this Supplement to the
Restated Mortgage and Security Agreement is also-hereby declared to be a
"Financing Statement", under the Uniform Commercial Code for said security
agreement. The mailing address of the Mortgagor as debtor, and of the
Mortgagee as secured party, are as set forth in the Mortgage and in section 6
of the Supplemental Mortgage.
7. All of the terms, provisions and covenants of the Mortgage,
except as expressly modified hereby, shall be and remain in full force and
effect.
8. The invalidity of any one or more phrases, clauses, sentences,
paragraphs or provisions of this Supplement to the Restated Mortgage and
Security Agreement shall not affect the validity of the remaining portions
hereof.
9. This Supplement to the Restated Mortgage and Security Agreement
may be simultaneously executed in any number of counterparts, and all of said
counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument.
IN WITNESS WHEREOF, CAP ROCK ELECTRIC COOPERATIVE. INC., as
Mortgagor, has caused this Supplement to the Restated Mortgage and Security
Agreement to be signed in its name and its corporate seal to be hereunto
affixed and attested by its officers thereunto duly authorized, NATIONAL
RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, as Mortgagee, has caused this
Supplement to the Restated Mortgage and Security Agreement to be signed in
its name and its corporate seal to be hereunto affixed and attested by its
officers thereunto duly authorized, all as of the day and year first above
written.
CAP ROCK ELECTRIC COOPERATIVE, INC.
by /s/ Xxxxxxx X. Xxxxx
---------------------------------
President
(Seal)
Attest /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Secretary
Signed, sealed and delivered this 17TH day of MAY , 1990 in the State of TEXAS
and County of XXXXXX on behalf of CAP ROCK ELECTRIC COOPERATIVE, INC. , a
corporation, by its President and Secretary, in the presence of:
/s/ ILLEGIBLE
-----------------------------
Witness
/s/ Xxxxx Xxxxxxx
-----------------------------
Witness
/s/ ILLEGIBLE
----------------------------
Notary Public
(Notarial Seal)
My commission expires:
THE STATE OF TEXAS X
COUNTY OF XXXXXX X
THIS instrument was acknowledged before me on the 17Th day of MAY,
1990, by XXXXXXX X. XXXXX, President of CAP ROCK ELECTRIC COOPERATIVE, INC.,
a Texas corporation, on behalf of said corporation.
/s/ ILLEGIBLE
-----------------------------
Notary Public, State of Texas
My Commission Expires 8/22/92
9. One tract of land described in a deed dated May 7, 1975, by
Xxxxxxxx X. Xxxxxxxxxx, and his wife, ArIa Xxx Xxxxxxxxxx, as
grantors, to Cap Rock Electric Cooperative, Inc. as grantee,
and recorded in the office of the County Clerk of Xxxxxx
County, Texas, in Volume 59 on page 143.
10. One tract of land described in a deed dated April 17, 1978, by
Xxxx X. Xxxxxxxxx and wife, Xxxx Xxx Xxxxxxxxx, as grantors to
Cap Rock Electric Cooperative, Inc. as grantee, and recorded
in the office of the County Clerk of Xxxxxxxxx County, Texas,
in Volume 166, page 582.
11. One tract of land described in a deed dated May 8, 1978, by
Xxxxx Xxxxxxxxx, et. al., as grantors to Cap Rock Electric
Cooperative, Inc., as grantee, and recorded in the office of
the County Clerk of Xxxxxxxxx County, Texas in Volume 167,
page 628.
12. One tract of land described in a deed dated May 9, 1978, by
Xxx X. Xxxxxxx, Xx. and his wife, Xxxxxxxx X. Xxxxxxx, as
grantors, to Cap Rock Electric Cooperative, Inc,. as grantee,
and recorded in the office of the County Clerk of Upton
County, Texas in Volume 452, page 30.
13. One tract of land described in a deed dated June 20, 1978, by
X.X. Xxxxxxxxxx and his wife, Xxxxxx X. Xxxxxxxxxx, as
grantors, to Cap Rock Electric Cooperative, Inc., as grantee,a
nd recorded in the office of the County Clerk of Xxxxxx
County, Texas, Volume 156, page 469.
14. One tract of land described in a deed dated December 19, 1980,
by Xxxxx X. Xxxxx and his wife, Xxxxxx Xxxxx, as grantors, to
Cap Rock Electric Cooperative, Inc., as grantee, and recorded
in the office of the County Clerk of Xxxxxx County, Texas, in
Volume 202, page 694.
15. One tract of land described in a deed dated February 15, 1980,
by Xxxx Xxxxxx Xxxxx, as grantor, to Cap Rock Electric
Cooperative, Inc., as grantee, and recorded in the office of
County Clerk of Xxxxxx County, Texas in Volume 192, page 764.
16. One tract of land described in a deed dated June 4, 1981, by
X.X. Xxxxxxx, as grantor, to Cap Rock Electric Cooperative,
Inc., as grantee, and recorded in the office of the County
Clerk of Xxxxxx County, Texas in Volume 208, page 727.
17. One tract of land described in a deed dated January 8, 1982,
by X.X. Xxxxxx and his wife, Xxxxxxxxx Xxxxxx, as grantors, to
Cap Rock Electric Cooperative, Inc,, as grantee, and recorded
in the office of the County Clerk of Xxxxxx County, Texas, in
Volume 215, page 659.
18. One tract of land described in a deed dated March 7, 1984, by
TriCity Beverages, as grantor, to Cap Rock Electric
Cooperative, Inc., as grantee, and recorded in the office of
the County Clerk of Xxxxxx County, Texas in Volume 238, page
396.
Together with all plants, works, structures, erections, reservoirs, dams,
buildings, fixtures and improvements now or hereafter located on any of the
properties conveyed by any and all aforesaid deeds mentioned above and all
tenements, hereditaments and appurtenances now or hereafter thereunto
belonging or in anywise appertaining.
The description of each of the properties conveyed by and through the
provisions of the aforesaid deeds is by reference made a part hereof as
though fully set forth at length therein.
NATIONAL RURAL UTILITIES COOPERATIVE
FINANCE CORPORATION
by /s/ ILLEGIBLE
-----------------------------
SYSTEMS DEVELOPMENT MANAGER
For Governor
(Seal)
Attest: /s/ ILLEGIBLE
-------------------------
Assistant Secretary
Signed, sealed and delivered 14th day of May, 1990 in the District of
Columbia, on behalf of National Rural Utilities Cooperative Finance
Corporation, a corporation, by its Governor and Assistant Secretary, in the
presence of:
/s/ Xxxxxxxx Xxxxxx
----------------------------------
Witness
/s/ Sciessa X. Xxxxxxxxx
----------------------------------
Witness
/s/ Xxxxxxxx Ruthharsh
----------------------------------
Notary Public
(Notarial Seal)
My commission expires:
7/14/93
APPENDIX A
PROPERTY SCHEDULE
(a) The Existing Electric Facilities are located in the following counties:
Andrews, Dawson, Borden, Ector, Midland, Xxxxxx, Xxxxxx, Upton,
Glasscock, Reagan, Sterling, Xxx Xxxxx and Xxxxx, all in Texas.
(b) The property referred to in the Granting Clause includes the following:
1. Two tracts of land described in a deed, dated April 12, 1972,
by Cap Rock Refrigeration Cooperative, Inc., as grantor, to
Cap Rock Electric Cooperative, Inc., as grantee, and recorded
in the office of the County Clerk of Xxxxxx County, Texas, in
Volume 143 on page 446.
2. One tract of land described in a deed, dated April 22, 1960,
by Cap Rock Refrigeration Cooperative, Inc., as grantor, to
Cap Rock Electric Cooperative, Inc., as grantee, and recorded
in the office of the County Clerk of Xxxxxx County, Texas, in
Volume 82 on page 73.
3. One tract of land described in a deed, dated June 5, 1956, by
City of Xxxxxxx, Texas, as grantor, to Cap Rock Electric
Cooperative, Inc., as grantee, and recorded in the office of
the County Clerk of Xxxxxx County, Texas in Volume 74 on page
169.
4. Two tracts of land described in a deed dated January 27, 1944,
by W.A. Xxxxxxx, as grantor, to Cap Rock Electric Cooperative,
Inc., as grantee, and recorded in the office of the County
Clerk of Xxxxxx County, Texas in Volume 50 on page 94 and 95.
5. One tract of land described in a deed dated October 3, 1953,
by Xxxx X. Xxxx and Ova X. Xxxx, as grantors, to Cap Rock
Electric Cooperative, Inc., as grantee, and recorded in the
office of the County Clerk of Xxxxxx County, Texas, in volume
75 on page 399.
6. One tract of land described in a deed dated August l, 1974, by
City of Xxxxxxx, Texas, as grantor, to Cap Rock Electric
Cooperative, Inc., as grantee, and recorded in the office of
the County Clerk of Xxxxxx County, Texas in Volume 156 on page
453.
7. One tract of land described in a deed dated January 13, 1975,
by X.X. Xxxxxxx, and his wife, Xxxxx Xxxxxxx, as grantors, to
Cap Rock Electric Cooperative, Inc. as grantee, and recorded
in the office of the County Clerk of Xxxxxx County, Texas, in
Volume 159 on page 494.
8. One tract of land described in a deed dated March 24, 1975, by
Xxxxx X. Xxxxxxx, the wife, Xxxxx X. Xxxxxxx, as grantors, to
Cap Rock Electric Cooperative, Inc., as grantee, and recorded
in the office of the County Clerk of Midland County, Texas, in
Volume 591 on page 689.
