exv10w15



 



EXHIBIT 10.15


OPEN-END MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT

OF RENTS AND LEASES, AND FIXTURE FILING



by and from



GLOBAL EXCHANGE SERVICES, INC., “Mortgagor”



to



FOOTHILL CAPITAL CORPORATION,

in its capacity as agent, “Mortgagee”



Dated as of March 21, 2003




	 	 	 
	Location:

Municipality:

County:

State:	 	
5347 West 161st St.

Brook Park

Cuyahoga

Ohio



 






 



OPEN-END MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF

RENTS AND LEASES, AND FIXTURE FILING



(MAXIMUM UNPAID INDEBTEDNESS, EXCLUSIVE OF INTEREST

AND PROTECTIVE ADVANCES, NOT TO EXCEED $100,000,000)



          THIS OPEN-END MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES
AND FIXTURE FILING (this “Mortgage”) is dated as of March 21, 2003 by and from
GLOBAL EXCHANGE SERVICES, INC., a Delaware corporation (“Mortgagor”), whose
address is 100 Edison Park Drive, Gaithersburg, Maryland, 20878, and whose
organizational number is 2384604 and FEIN is 52-1865641 to FOOTHILL CAPITAL
CORPORATION, a California corporation, in its capacity as agent (the “Agent”)
pursuant to the Loan Agreement (as defined below), having an address at 2450
Colorado Avenue, Suite 3000 West, Santa Monica, California 90404 (Agent,
together with its successors and assigns, “Mortgagee”).



RECITALS:



          WHEREAS, Mortgagor is the fee owner of the real property and improvements
described in Exhibit A attached hereto.



          WHEREAS, GXS Holdings, Inc., a Delaware corporation (“Parent”), GXS
Corporation, a Delaware corporation (“Borrower”), Agent, the lenders from time
to time party thereto (the “Lenders”; together with Agent, individually,
collectively, jointly and severally, the “Lender Group”), Credit Suisse First
Boston, as lead arranger, and Ableco Finance LLC, a Delaware limited liability
company, as documentation agent, have entered into that certain Loan and
Security Agreement dated as of March 21, 2003 (as amended, supplemented or
otherwise modified heretofore or hereinafter from time to time, the “Loan
Agreement”), which Loan Agreement provides for a revolving loan, a term loan
and other extensions of credit in the principal amount of up to One Hundred
Million Dollars ($100,000,000).



          WHEREAS, the Borrower owns one hundred percent (100%) of the shares in the
Mortgagor.



          WHEREAS, concurrent with the entering into of the Loan Agreement,
Mortgagor and Parent are delivering that certain General Continuing Guaranty
dated as of the date hereof in favor of Agent, as agent (“General Guaranty”).



          WHEREAS, Agent and the Lender Group are unwilling to enter into the Loan
Agreement and make available to Borrower the credit facilities provided therein
unless Mortgagor, among other things, secures the obligations of Borrower under
the Loan Agreement and the Loan Documents (as defined in the Loan Agreement) by
delivering this Mortgage.



 






 





          WHEREAS, Mortgagor is receiving a benefit from the Agent and the Lender
Group entering into the Loan Agreement and making available to Borrower the
credit facilities provided therein, the sufficiency and receipt of which is
hereby acknowledged by Mortgagor.



ARTICLE 1

DEFINITIONS



          Section 1.1    Definitions. All capitalized terms used herein without
definition shall have the respective meanings ascribed to them in the Loan
Agreement. As used herein, the following terms shall have the following
meanings:



               (a)     “Event of Default”: shall have the meaning ascribed to such term in
Article 4 hereof.



               (b)     “Indebtedness”: All obligations of Mortgagor, including, without
limitation, (1) the repayment of all amounts outstanding from time to time
under the Loan Agreement, with the principal thereof not at any one time to
exceed One Hundred Million Dollars ($100,000,000.00) with such indebtedness
maturing on March 21, 2007, including principal, interest (including all
interest that, but for the provisions of the Bankruptcy Code, would have
accrued), and other amounts which may now or hereafter be advanced as Advances,
(2) the full and prompt performance of any and all repayment, fee, and
indemnification obligations with respect to any Letters of Credit, (3) fees,
costs, expenses, charges and indemnification obligations accrued, incurred or
arising in connection with any Loan Document, (4) the full and prompt payment
and performance of all obligations of Mortgagor evidenced by bonds, debentures,
notes or other similar instruments with respect to letters of credit, bankers
acceptances, interest rate swaps or other financial products excepting
therefrom any and all Bank Product Obligations, and (5) any and all future
advances made pursuant to the terms of the Loan Agreement up to an aggregate
principal amount outstanding at any one time not to exceed One Hundred Million
Dollars $100,000,000.00. The Loan Agreement contains a revolving credit
facility that permits Mortgagor to borrow certain principal amounts, repay all
or a portion of such principal amounts, and reborrow the amounts previously
paid to Mortgagee, all upon satisfaction of certain conditions stated in the
Loan Agreement. This Mortgage secures all advances and re-advances under the
revolving credit feature of the Loan Agreement.



               (c)     “Obligations”: All of the agreements, covenants, conditions,
warranties, representations and other obligations of Mortgagor under the Loan
Agreement and the other Loan Documents, including, but not limited to, the
“Obligations,” as defined under the Loan Agreement excepting therefrom any and
all Bank Product Obligations.



               (d)     “Mortgaged Property”: All of Mortgagor’s interest in (1) the fee
interest in the real property described in Exhibit A attached hereto and



2






 


incorporated herein by this reference, together with any greater estate therein
as hereafter may be acquired by Mortgagor (the “Land”), (2) all improvements
now owned or hereafter acquired by Mortgagor, now or at any time situated,
placed or constructed upon the Land (the “Improvements”; the Land and
Improvements are collectively referred to as the “Premises”), (3) all
materials, supplies, equipment, apparatus and other items of personal property
now owned or hereafter acquired by Mortgagor and now or hereafter attached to,
installed in or used in connection with any of the Improvements or the Land,
and water, gas, electrical, telephone, storm and sanitary sewer facilities and
all other utilities whether or not situated in easements (the “Fixtures”), (4)
all reserves, escrows or impounds required under the Loan Agreement and all
deposit accounts maintained by Mortgagor with respect to the Mortgaged Property
(the “Deposit Accounts”), (5) all leases, licenses, concessions, occupancy
agreements or other agreements (written or oral, now or at any time in effect)
which grant to any Person a possessory interest in, or the right to use, all or
any part of the Mortgaged Property, together with all related security and
other deposits (the “Leases”), (6) all of the rents, revenues, royalties,
income, proceeds, profits, security and other types of deposits, and other
benefits paid or payable by parties to the Leases for using, leasing,
licensing, possessing, operating from, residing in, selling or otherwise
enjoying the Mortgaged Property (the “Rents”), (7) all other agreements, such
as construction contracts, architects’ agreements, engineers’ contracts,
utility contracts, maintenance agreements, management agreements, service
contracts, listing agreements, guaranties, warranties, permits, licenses,
certificates and entitlements in any way relating to the construction, use,
occupancy, operation, maintenance, enjoyment or ownership of the Mortgaged
Property (the “Property Agreements”), (8) all rights, privileges, tenements,
hereditaments, rights-of-way, easements, appendages and appurtenances
appertaining to the foregoing, (9) all property tax refunds (the “Tax
Refunds”), (10) all accessions, replacements and substitutions for any of the
foregoing and all proceeds thereof (the “Proceeds”), (11) all insurance
policies, unearned premiums therefor and proceeds from such policies covering
any of the above property now or hereafter acquired by Mortgagor (the
“Insurance”), and (12) all of Mortgagor’s right, title and interest in and to
any awards, damages, remunerations, reimbursements, settlements or compensation
heretofore made or hereafter to be made by any governmental authority
pertaining to the Land, Improvements or Fixtures (the “Condemnation Awards”).
As used in this Mortgage, the term “Mortgaged Property” shall mean all or,
where the context permits or requires, any portion of the above or any interest
therein.


               (e)     “UCC”: The Uniform Commercial Code of the state of Ohio.



ARTICLE 2

GRANT



          Section 2.1   Grant. To secure the full and timely payment of the
Indebtedness and the full and timely performance of the Obligations, Mortgagor



3






 


MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS, TRANSFERS, REMISES, ALIENS and
CONVEYS, to Mortgagee the Mortgaged Property, subject, however, to the
Permitted Liens (as defined in the Loan Agreement), TO HAVE AND TO HOLD the
Mortgaged Property to Mortgagee, and Mortgagor does hereby bind itself, its
successors and assigns to WARRANT AND FOREVER DEFEND the title to the Mortgaged
Property unto Mortgagee.



          Mortgagor hereby agrees and acknowledges that the Indebtedness secured by
this Mortgage includes a revolving loan and is intended to secure future
advances; accordingly, this Mortgage shall not be canceled by the full and
complete repayment of the Indebtedness, so long as the Loan Agreement remains
in force and effect.



          Section 2.2   Satisfaction and Release. The conditions of this Mortgage are
such that if (a) Mortgagor shall duly pay all of the Indebtedness and duly
perform and observe all of the obligations, and (b) Agent shall have no further
right or obligation to advance any further sums which would be a part of the
Indebtedness secured hereby, then this Mortgage shall be void; otherwise, this
Mortgage shall continue in full force and effect.



ARTICLE 3

WARRANTIES, REPRESENTATIONS AND COVENANTS



          Mortgagor warrants, represents and covenants to Mortgagee as follows:



          Section 3.1    Title to Mortgaged Property and Lien of this Instrument.
Mortgagor (i) has good and indefeasible title to the Mortgaged Property, free
and clear of any liens, claims or interests other than the Permitted Liens, and
(ii) has full power and lawful authority to encumber the Mortgaged Property in
the manner and form set forth in this Mortgage. This Mortgage creates valid,
enforceable first priority liens and security interests against the Mortgaged
Property. Mortgagor’s possession of the Mortgaged Property has been peaceable
and undisturbed and the Mortgagor does not know of any facts by reason of which
any adverse claim to any part of the Mortgaged Property or to any undivided
interest therein might be set up or made.



          Section 3.2    First Lien Status. Mortgagor shall preserve and protect the
first lien and security interest status of this Mortgage and the other Loan
Documents. If any lien or security interest other than the Permitted Liens is
asserted against the Mortgaged Property, Mortgagor shall promptly, and at its
expense, (a) give Mortgagee a detailed written notice of such lien or security
interest (including origin, amount and other terms), and (b) pay the underlying
claim in full or take such other action so as to
cause it to be released or contest the same in compliance with the
requirements of the Loan Agreement (including the requirement of providing a
bond or other security satisfactory to Mortgagee).



4






 


          Section 3.3    Payment and Performance. Mortgagor shall pay the Indebtedness
when due under the Loan Documents and shall perform or cause the other
Mortgagor to perform the Obligations in full when they are required to be
performed.



          Section 3.4   Loan Advances. Certain of the Indebtedness may permit
borrowing, repayment and reborrowing. Notwithstanding the amount of the
Indebtedness at any particular time, this Instrument secures the total amount
of indebtedness of Borrower under the Note and other Loan Documents, whether
due or to become due, liquidated or unliquidated, absolute, inchoate or
contingent. All advances and reimbursement obligations under the Loan
Documents are secured by this Mortgage and shall have the same priority as the
funds initially advanced under any documents, instruments or other mortgages
evidencing the Loan. The maximum amount of unpaid loan indebtedness which may
be outstanding at any time is One Hundred Million Dollars ($100,000,000);
provided that this Mortgage will also secure unpaid balances of advances made
for the payment of taxes, assessments, insurance or other costs incurred for
the protection of the Mortgaged Property as provided in §301.233 of the Ohio
Revised Code (“Protective Advances”). Mortgagor further covenants and agrees
to repay all such loan advances with interest pursuant to the terms of the Loan
Agreement, and the covenants contained in this Mortgage will apply to such loan
advances as well.



          Section 3.5    Replacement of Fixtures and Personalty. Mortgagor shall not,
without the prior written consent of Mortgagee, permit any of the Fixtures or
Personalty to be removed at any time from the Land or Improvements, unless the
removed item is removed temporarily for maintenance and repair or, if removed
permanently, is obsolete and is replaced by an article of equal or better
suitability and value, owned by Mortgagor subject to the liens and security
interests of this Mortgage and the other Loan Documents, and free and clear of
any other lien or security interest except such as may be permitted under the
Loan Agreement or first approved in writing by Mortgagee.



          Section 3.6    Inspection. Mortgagor shall permit Mortgagee and its agents,
representatives and employees to inspect the Mortgaged Property and all books
and records of Mortgagor located thereon, and to conduct such environmental and
engineering studies as Mortgagee may require in accordance with Section 4.6 of
the Loan Agreement.



          Section 3.7    Other Covenants. All of the covenants in the Loan Agreement
are incorporated herein by reference and, together with covenants in this
Article 3, shall be covenants running with the land.



          Section 3.8    Condemnation Awards and Insurance Proceeds.



               (a)     Condemnation Awards. Mortgagor, immediately upon obtaining knowledge
of the institution of any proceedings for the condemnation of the Premises or
any portion thereof, will notify Mortgagee of the pendency of such



5






 





proceedings.
Mortgagee may participate in any such proceedings and Mortgagor from time to
time will deliver to Mortgagee all instruments requested by it to permit such
participation. Mortgagor assigns all awards and compensation to which it is
entitled for any condemnation or other taking, or any purchase in lieu thereof,
to Mortgagee and authorizes Mortgagee to collect and receive such awards and
compensation and to give proper receipts and acquittances therefor, subject to
the terms of the Loan Agreement. Mortgagor hereby waives all rights to such
awards and compensation described in the foregoing sentence. Mortgagor, upon
request by Mortgagee, shall make, execute and deliver any and all instruments
requested for the purpose of confirming the assignment of the aforesaid awards
and compensation to Mortgagee free and clear of any liens, charges or
encumbrances of any kind or nature whatsoever.



              
 (b)     Insurance Proceeds. Mortgagor assigns to Mortgagee all proceeds of
any insurance policies insuring against loss or damage to the Mortgaged
Property. Mortgagor authorizes Mortgagee to collect and receive such proceeds
and authorizes and directs the issuer of each of such insurance policies to
make payment for all such losses directly to Mortgagee, instead of to Mortgagor
and Mortgagee jointly.



          Section 3.9   Costs of Defending and Upholding the Lien. If any action or
proceeding is commenced to which action or proceeding Mortgagee is made a party
or in which it becomes necessary for Mortgagee to defend or uphold the lien of
this Mortgage, Mortgagor shall, on demand, reimburse Mortgagee for all expenses
(including, without limitation, reasonable attorneys’ fees and reasonable
appellate attorneys’ fees) incurred by Mortgagee in any such action or
proceeding and all such expenses shall be secured by this Mortgage



          Section 3.10   TRANSFER OF THE SECURED PROPERTY. MORTGAGOR SHALL NOT SELL,
TRANSFER, PLEDGE, ENCUMBER, CREATE A SECURITY INTEREST IN, OR OTHERWISE
HYPOTHECATE, ALL OR ANY PORTION OF THE MORTGAGED PROPERTY WITHOUT THE PRIOR
WRITTEN CONSENT OF MORTGAGEE. THE CONSENT BY MORTGAGEE TO ANY SALE, TRANSFER,
PLEDGE, ENCUMBRANCE, CREATION OF A SECURITY INTEREST IN, OR OTHER HYPOTHECATION
OF, ANY PORTION OF THE MORTGAGED PROPERTY SHALL NOT BE DEEMED TO CONSTITUTE A
NOVATION OR A CONSENT TO ANY FURTHER SALE, TRANSFER, PLEDGE, ENCUMBRANCE,
CREATION OF A SECURITY INTEREST IN OR OTHER HYPOTHECATION, OR TO WAIVE THE
RIGHT OF MORTGAGEE, AT ITS OPTION, TO DECLARE THE INDEBTEDNESS SECURED HEREBY
IMMEDIATELY DUE AND PAYABLE, WITHOUT NOTICE TO MORTGAGOR OR ANY OTHER PERSON OR
ENTITY, UPON ANY SUCH SALE, TRANSFER, PLEDGE, ENCUMBRANCE, CREATION
OF A SECURITY INTEREST OR OTHER HYPOTHECATION TO WHICH MORTGAGOR SHALL NOT
HAVE CONSENTED.



6






 


          Section 3.11    Separate Tax Lot. The Land is taxed separately without
regard to any other property and has been subdivided from all other property in
compliance with applicable laws. No subdivision or other approval is necessary
with respect to the Premises in order for Mortgagor to mortgage, convey, or
otherwise deal with the Premises as a separate lot or parcel.



ARTICLE 4

DEFAULT



          Section 4.1    Events of Default. The occurrence of any of the following
events shall constitute an event of default under this Mortgage (each an “Event
of Default”):



               (a)     an “Event of Default” (as such term is defined in the Loan Agreement)
shall have occurred; or



               (b)     a default under the General Guaranty; or



               (c)     Mortgagor’s breach of any of the covenants set forth in Article 3
hereof; or



               (d)     if any misstatement or misrepresentation exists now or hereafter in
any warranty or representation set forth in Article 3 hereof.



ARTICLE 5

DEFAULT AND FORECLOSURE



          Section 5.1    Remedies. If an Event of Default exists, Mortgagee may, at
Mortgagee’s election, exercise any or all of the following rights, remedies and
recourses:



               (a)     Acceleration. Declare the Indebtedness to be immediately due and
payable, without further notice, presentment, protest, notice of intent to
accelerate, notice of acceleration, demand or action of any nature whatsoever
(each of which hereby is expressly waived by Mortgagor), whereupon the same
shall become immediately due and payable.



               (b)     Assignment of Rents. Notify all tenants of the Premises and all
others obligated on leases of any party of the Premises that all rents and
other sums owing on leases have been assigned to Mortgagee and are to be paid
directly to Mortgagee, and to enforce payment of all obligations owing on
leases, by suit, ejectment, cancellation, releasing, reletting or otherwise,
whether or not Mortgagee has taken
possession of the Premises, and to exercise whatever rights and remedies
Mortgagee may have under any assignment of rents and leases.



7






 


               (c)     Entry on Mortgaged Property. As and to the extent permitted by law,
enter the Mortgaged Property, either personally or by its agents, nominees or
attorneys, and take exclusive possession thereof and thereupon, Mortgagee may
(i) use, operate, manage, control, insure, maintain, repair, restore and
otherwise deal with all and every part of the Premises and conduct business
thereat; (ii) complete any construction on the Premises in such manner and form
as Mortgagee deems advisable in the reasonable exercise of its judgment; (iii)
exercise all rights and power of Mortgagor with respect to the Premises,
whether in the name of Mortgagor, or otherwise, including, without limitation,
the right to make, cancel, enforce or modify leases, obtain and evict tenants,
and demand, sue for, collect and receive all earnings, revenues, rents, issues,
profits and other income of the Premises and every part thereof, which rights
shall not be in limitation of Mortgagee’s rights under any assignment of rents
and leases securing the Indebtedness; and (iv) apply the receipts from the
Premises to the payment of the Indebtedness, after deducting therefrom all
expenses (including attorneys’ fees) incurred in connection with the aforesaid
operations and all amounts necessary to pay the taxes, assessments, insurance
and other charges in connection with the Mortgaged Property, as well as just
and reasonable compensation for the services of Mortgagee, its counsel, agents
and employees.



               (d)     Operation of Mortgaged Property. Hold, lease, develop, manage,
operate or otherwise use the Mortgaged Property upon such terms and conditions
as Mortgagee may deem reasonable under the circumstances (making such repairs,
alterations, additions and improvements and taking other actions, from time to
time, as Mortgagee deems necessary or desirable), and apply all Rents and other
amounts collected by Mortgagee in connection therewith in accordance with the
provisions of Section 5.7.



               (e)     Foreclosure and Sale. Institute proceedings for the complete
foreclosure of this Mortgage, either by judicial action or by power of sale, in
which case the Mortgaged Property may be sold for cash or credit in one or more
parcels as Mortgagee may determine. With respect to any notices required or
permitted under the UCC, Mortgagor agrees that ten (10) days’ prior written
notice shall be deemed commercially reasonable. At any such sale by virtue of
any judicial proceedings, power of sale, or any other legal right, remedy or
recourse, the title to and right of possession of any such property shall pass
to the purchaser thereof, and to the fullest extent permitted by law, Mortgagor
shall be completely and irrevocably divested of all of its right, title,
interest, claim, equity, equity of redemption, and demand whatsoever, either at
law or in equity, in and to the property sold and such sale shall be a
perpetual bar both at law and in equity against Mortgagor, and against all
other Persons claiming or to claim the property sold or any part thereof, by,
through or under Mortgagor. Mortgagee may be a purchaser at such sale. If
Mortgagee is the highest bidder, Mortgagee may credit the
portion of the purchase price that would be distributed to Mortgagee
against the Indebtedness in lieu of paying cash. In the event this Mortgage is
foreclosed by judicial action, appraisement of the Mortgaged Property is
waived. In the event of any sale made



8






 





under or by virtue of this Article 5
(whether made by virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale) the entire Indebtedness, if not previously due and
payable, immediately thereupon shall, anything in the Loan Agreement, this
Mortgage, or any other Loan Document to the contrary notwithstanding, become
due and payable. The failure to make any such tenants of the Premises party to
any such foreclosure proceedings and to foreclose their rights will not be,
nor be asserted to be by Mortgagor, a defense to any proceedings instituted by
Mortgagee to collect the sums secured hereby.



               (f)     Partial Foreclosure. With or without entry, to the extent permitted
and pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Mortgage for the portion of the
Indebtedness then due and payable (if Mortgagee shall have elected not to
declare the entire Indebtedness to be immediately due and owing), subject to
the continuing lien of this Mortgage for the balance of the Indebtedness not
then due; or (1) as and to the extent permitted by law, sell for cash or upon
credit the Mortgaged Property or any part thereof and all estate, claim,
demand, right, title and interest of Mortgagor therein, pursuant to power of
sale or otherwise, at one or more sales, as an entity or in parcels, at such
time and place, upon such terms and after such notice thereof as may be
required or permitted by law, and in the event of a sale, by foreclosure or
otherwise, of less than all of the Mortgaged Property, this Mortgage shall
continue as a lien on the remaining portion of the Mortgaged Property; or (2)
institute an action, suit or proceeding in equity for the specific performance
of any covenant, condition or agreement contained herein or in any Loan
Document; or (3) to the extent permitted by applicable law, recover judgment on
the Loan Agreement either before, during or after any proceedings for the
enforcement of this Mortgage.



               (g)     Receiver. Make application to a court of competent jurisdiction for,
and obtain from such court as a matter of strict right and without notice to
Mortgagor or regard to the adequacy of the Mortgaged Property for the repayment
of the Indebtedness, the appointment of a receiver of the Mortgaged Property,
and Mortgagor irrevocably consents to such appointment. Any such receiver
shall have all the usual powers and duties of receivers in similar cases,
including the full power to rent, maintain and otherwise operate the Mortgaged
Property upon such terms as may be approved by the court, and shall apply such
Rents in accordance with the provisions of Section 5.7.



               (h)     Other. Exercise all other rights, remedies and recourses granted
under the Loan Documents or otherwise available at law or in equity.



          Section 5.2    Separate Sales. The Mortgaged Property may be sold in one or
more parcels and in such manner and order as Mortgagee in its sole discretion
may elect; the right of sale arising out of any Event of Default shall not be
exhausted by any one or more sales.



9






 


          Section 5.3   Remedies Cumulative, Concurrent and Nonexclusive. Mortgagee
shall have all rights, remedies and recourses granted in the Loan Documents and
available at law or equity (including the UCC), which rights (a) shall be
cumulated and concurrent, (b) may be pursued separately, successively or
concurrently against Mortgagor or others obligated under the Loan Documents, or
against the Mortgaged Property, or against any one or more of them, at the sole
discretion of Mortgagee, as the case may be, (c) may be exercised as often as
occasion therefor shall arise, and the exercise or failure to exercise any of
them shall not be construed as a waiver or release thereof or of any other
right, remedy or recourse, and (d) are intended to be, and shall be,
nonexclusive. No action by Mortgagee in the enforcement of any rights,
remedies or recourses under the Loan Documents or otherwise at law or equity
shall be deemed to cure any Event of Default.



          Section 5.4    Release of and Resort to Collateral. Mortgagee 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 Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the lien or security interest
created in or evidenced by the Loan Documents or their status as a first and
prior lien and security interest in and to the Mortgaged Property. For payment
of the Indebtedness, Mortgagee may resort to any other security in such order
and manner as Mortgagee may elect.



          Section 5.5   Waiver of Redemption, Notice and Marshalling of Assets. To
the fullest extent permitted by law, Mortgagor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to
Mortgagor by virtue of any present or future statute of limitations or law or
judicial decision exempting the Mortgaged Property from attachment, levy or
sale on execution or providing for any stay of execution, exemption from civil
process, redemption or extension of time for payment, (b) all notices of any
Event of Default or of any election by Mortgagee to exercise or the actual
exercise of any right, remedy or recourse provided for under the Loan
Documents, and (c) any right to a marshalling of assets or a sale in inverse
order of alienation.



          Section 5.6   Discontinuance of Proceedings. If Mortgagee shall have
proceeded to invoke any right, remedy or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon it for any
reason, Mortgagee shall have the unqualified right to do so and, in such an
event, Mortgagor and Mortgagee shall be restored to their former positions with
respect to the Indebtedness, the Obligations, the Loan Documents, the Mortgaged
Property and otherwise, and the rights, remedies,
recourses and powers of Mortgagee, shall continue as if the right, remedy
or recourse had never been invoked, but no such discontinuance or abandonment
shall waive any Event of Default which may then exist or the right of
Mortgagee, thereafter to exercise any right, remedy or recourse under the Loan
Documents for such Event of Default.



10






 


          Section 5.7   Application of Proceeds. The purchase money proceeds or the
proceeds of any sale made under or by virtue of this Article 5, together with
any Rents and other amounts generated by the holding, leasing, management,
operation or other use of the Mortgaged Property, shall be applied by Mortgagee
(or the receiver, if one is appointed) in accordance with Section 2.4 of the
Loan Agreement.



          Section 5.8   Occupancy After Foreclosure. Any sale of the Mortgaged
Property or any part thereof in accordance with Section 5.1(e) or Section
5.1(f) will divest all right, title and interest of Mortgagor in and to the
property sold. Subject to applicable law, any purchaser at a foreclosure sale
will receive immediate possession of the property purchased. If Mortgagor
retains possession of such property or any part thereof subsequent to such
sale, Mortgagor will be considered a tenant at sufferance of the purchaser, and
will, if Mortgagor remains in possession after demand to remove, be subject to
eviction and removal, forcible or otherwise, with or without process of law.



          Section 5.9    Additional Advances and Disbursements; Costs of Enforcement.



               (a)     If any Event of Default exists, Mortgagee 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 Mortgagee
under this Section 5.9, or otherwise under this Mortgage or any of the other
Loan Documents 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 rate or rates at which interest is then computed
on the Indebtedness, and all such sums, together with interest thereon, shall
be secured by this Mortgage.



               (b)     Mortgagor shall pay all expenses (including reasonable attorneys’ fees
and expenses) of or incidental to the perfection and enforcement of this
Mortgage and the other Loan Documents, or the enforcement, compromise or
settlement of the Indebtedness or any claim under this Mortgage and the other
Loan Documents, and for the curing thereof, or for defending or asserting the
rights and claims of Mortgagee in respect thereof, by litigation or otherwise.



          Section 5.10    No Mortgagee in Possession. Neither the enforcement of any
of the remedies under this Article 5, the assignment of the Rents and Leases
under Article 6, the security interests under Article 7, nor any other remedies
afforded to Mortgagee under the Loan Documents, at law or in equity shall cause
Mortgagee to be deemed or construed to be a mortgagee in possession of the
Mortgaged Property, to
obligate Mortgagee to lease the Mortgaged Property or attempt to do so, or
to take any action, incur any expense, or perform or discharge any obligation,
duty or liability whatsoever under any of the Leases or otherwise.



11






 


          Section 5.11    WAIVER OF MORTGAGOR’S RIGHTS. BY EXECUTION OF THIS MORTGAGE,
MORTGAGOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF MORTGAGEE TO ACCELERATE THE
INDEBTEDNESS EVIDENCED BY THE LOAN AGREEMENT; (B) TO THE EXTENT ALLOWED BY
APPLICABLE LAW, WAIVES ANY AND ALL RIGHTS WHICH MORTGAGOR MAY HAVE UNDER THE
CONSTITUTION OF THE UNITED STATES, THE VARIOUS PROVISIONS OF THE CONSTITUTIONS
FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, TO NOTICE AND
TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY MORTGAGEE OF ANY RIGHT OR REMEDY
HEREIN PROVIDED TO MORTGAGEE; (C) ACKNOWLEDGES THAT MORTGAGOR HAS READ THIS
MORTGAGE AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO MORTGAGOR AND
MORTGAGOR HAS CONSULTED WITH LEGAL COUNSEL OF MORTGAGOR ‘S CHOICE PRIOR TO
EXECUTING THIS MORTGAGE; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE
AFORESAID RIGHTS OF MORTGAGOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND
WILLINGLY BY MORTGAGOR AS PART OF A BARGAINED FOR LOAN TRANSACTION.



ARTICLE 6

ASSIGNMENT OF RENTS AND LEASES



          Section 6.1    Assignment. In furtherance of and in addition to the
assignment made by Mortgagor in Section 2.1 of this Mortgage, Mortgagor hereby
absolutely and unconditionally assigns, sells, transfers and conveys to
Mortgagee all of its right, title and interest in and to all Leases, whether
now existing or hereafter entered into, and all of its right, title and
interest in and to all Rents. This assignment is an absolute assignment and
not an assignment for additional security only. So long as no Event of Default
shall have occurred and be continuing, Mortgagor shall have a revocable license
from Mortgagee to exercise all rights extended to the landlord under the
Leases, including the right to receive and collect all Rents and to hold the
Rents in trust for use in the payment and performance of the Obligations and to
otherwise use the same. The foregoing license is granted subject to the
conditional limitation that no Event of Default shall have occurred and be
continuing. Upon the occurrence and during the continuance of an Event of
Default, whether or not legal proceedings have commenced, and without regard to
waste, adequacy of security for the Obligations or solvency of Mortgagor, the
license herein granted shall automatically expire and terminate, without notice
by Mortgagee (any such notice being hereby expressly waived by Mortgagor).



          Section 6.2    Perfection Upon Recordation. Mortgagor acknowledges that
Mortgagee has taken all actions necessary to obtain, and that upon recordation
of this Mortgage, Mortgagee shall have, to the extent permitted under
applicable law, a valid and fully perfected, first priority, present assignment
of the Rents arising out of the Leases and all security for such Leases.
Mortgagor acknowledges and agrees that upon



12






 


recordation of this Mortgage,
Mortgagee’s interest in the Rents shall be deemed to be fully perfected,
“choate” and enforced as to Mortgagor and all third parties, including, without
limitation, any subsequently appointed trustee in any case under Title 11 of
the United States Code (the “Bankruptcy Code”), without the necessity of
commencing a foreclosure action with respect to this Mortgage, making formal
demand for the Rents, obtaining the appointment of a receiver or taking any
other affirmative action.



          Section 6.3   Bankruptcy Provisions. Without limitation of the absolute
nature of the assignment of the Rents hereunder, Mortgagor and Mortgagee agree
that (a) this Mortgage shall constitute a “security agreement” for purposes of
Section 552(b) of the Bankruptcy Code, (b) the security interest created by
this Mortgage extends to property of Mortgagor acquired before the commencement
of a case in bankruptcy and to all amounts paid as Rents and (c) such security
interest shall extend to all Rents acquired by the estate after the
commencement of any case in bankruptcy.



          Section 6.4   No Merger of Estates. So long as part of the Indebtedness and
the Obligations secured hereby remain unpaid and undischarged, the fee and
leasehold estates to the Mortgaged Property shall not merge, but shall remain
separate and distinct, notwithstanding the union of such estates either in
Mortgagor, Mortgagee, any tenant or any third party by purchase or otherwise.



ARTICLE 7

SECURITY AGREEMENT



          Section 7.1    Security Interest. This Mortgage constitutes a “security
agreement” on personal property within the meaning of the UCC and other
applicable law and with respect to the Fixtures, Leases, Rents, Deposit
Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance and
Condemnation Awards. To this end, Mortgagor grants to Mortgagee a first and
prior security interest in the Fixtures, Leases, Rents, Deposit Accounts,
Property Agreements, Tax Refunds, Proceeds, Insurance and Condemnation Awards
and all other Mortgaged Property which is personal property to secure the
payment of the Indebtedness and performance of the Obligations, and agrees that
Mortgagee shall have all the rights and remedies of a secured party under the
UCC with respect to such property. Any notice of sale, disposition or other
intended action by Mortgagee with respect to the Personalty, Fixtures, Leases,
Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance
and Condemnation Awards sent to Mortgagor at least ten (10) days prior to any
action under the UCC shall constitute reasonable notice to Mortgagor.



          Section 7.2    Financing Statements. Mortgagor shall execute and deliver to
Mortgagee, in form and substance satisfactory to Mortgagee, such financing
statements and such further assurances as Mortgagee may, from time to time,
reasonably consider necessary to create, perfect and preserve Mortgagee’s
security interest hereunder and Mortgagee may cause such statements and
assurances to be recorded and filed, at such times and places as may be
required or permitted by law to so create, perfect and



13






 


preserve such security
interest. Mortgagor’s chief executive office is in the State of North Carolina
at the address set forth in the first paragraph of this Mortgage.



          Section 7.3    Fixture Filing. This Mortgage shall also constitute a
“fixture filing” for the purposes of the UCC against all of the Mortgaged
Property which is or is to become fixtures. Information concerning the
security interest herein granted may be obtained at the address of Debtor
(Mortgagor) and Secured Party (Mortgagee) as set forth in the first paragraph
of this Mortgage.



ARTICLE 8

MISCELLANEOUS



          Section 8.1   Notices. Any notice required or permitted to be given under
this Mortgage shall be given in accordance with Section 12 of the Loan
Agreement.



          Section 8.2    Covenants Running with the Land. All Obligations contained in
this Mortgage are intended by Mortgagor and Mortgagee to be, and shall be
construed as, covenants running with the Mortgaged Property. As used herein,
“Mortgagor” shall refer to the party named in the first paragraph of this
Mortgage and to any subsequent owner of all or any portion of the Mortgaged
Property. All Persons who may have or acquire an interest in the Mortgaged
Property shall be deemed to have notice of, and be bound by, the terms of the
Loan Agreement and the other Loan Documents; however, no such party shall be
entitled to any rights thereunder without the prior written consent of
Mortgagee.



          Section 8.3    Attorney-in-Fact. Mortgagor hereby irrevocably appoints
Mortgagee and its successors and assigns, as its attorney-in-fact, which agency
is coupled with an interest and with full power of substitution, (a) to execute
and/or record any notices of completion, cessation of labor or any other
notices that Mortgagee deems appropriate to protect Mortgagee’s interest, if
Mortgagor shall fail to do so within ten (10) days after written request by
Mortgagee, (b) upon the issuance of a deed pursuant to the foreclosure of this
Mortgage or the delivery of a deed in lieu of foreclosure, to execute all
instruments of assignment, conveyance or further assurance with respect to the
Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds,
Insurance and Condemnation Awards in favor of the grantee of any such deed and
as may be necessary or desirable for such purpose, (c) to prepare, execute and
file or record financing statements, continuation statements, applications for
registration and like papers necessary to create, perfect or preserve
Mortgagee’s security interests and rights in
or to any of the Mortgaged Property, and (d) while any Event of Default
exists, to perform any obligation of Mortgagor hereunder, however: (1)
Mortgagee shall not under any circumstances be obligated to perform any
obligation of Mortgagor; (2) any sums advanced by Mortgagee in such performance
shall be added to and included in the Indebtedness and shall bear interest at
the rate or rates at which interest is then computed on the Indebtedness; (3)
Mortgagee as such attorney-in-fact shall only be accountable for



14






 


such funds as
are actually received by Mortgagee; and (4) Mortgagee shall not be liable to
Mortgagor or any other person or entity for any failure to take any action
which it is empowered to take under this Section 8.3.



          Section 8.4    Successors and Assigns. This Mortgage shall be binding upon
and inure to the benefit of Mortgagee and Mortgagor and their respective
successors and assigns. Mortgagor shall not, without the prior written consent
of Mortgagee, assign any rights, duties or obligations hereunder.



          Section 8.5    No Waiver. Any failure by Mortgagee to insist upon strict
performance of any of the terms, provisions or conditions of the Loan Documents
shall not be deemed to be a waiver of same, and Mortgagee shall have the right
at any time to insist upon strict performance of all such terms, provisions and
conditions.



          Section 8.6    Loan Agreement. If any conflict or inconsistency exists
between this Mortgage and the Loan Agreement, the Loan Agreement shall govern.



          Section 8.7    Release or Reconveyance. Upon payment in full of the
Indebtedness, including the cash collateralization, expiration, or cancellation
of all Indebtedness, if any, consisting of letters of credit, the full and
final termination of any commitment to extend any financial accommodations
under the Loan Agreement, and performance in full of the Obligations,
Mortgagee, at Mortgagor’s expense, shall release the liens and security
interests created by this Mortgage or reconvey the Mortgaged Property to
Mortgagor.



          Section 8.8    Waiver of Stay, Moratorium and Similar Rights. Mortgagor
agrees, to the full extent that it may lawfully do so, that it will not at any
time insist upon or plead or in any way take advantage of any stay, marshalling
of assets, extension, redemption or moratorium law now or hereafter in force
and effect so as to prevent or hinder the enforcement of the provisions of this
Mortgage or the Indebtedness secured hereby, or any agreement between Mortgagor
and Mortgagee or any rights or remedies of Mortgagee.



          Section 8.9    Applicable Law. The provisions of this Mortgage regarding the
creation, perfection and enforcement of the liens and security interests herein
granted shall be governed by and construed under the laws of the state in which
the Mortgaged Property is located. All other provisions of this Mortgage shall
be governed by the laws of the state of New York, without regard to conflicts
of law principles.



          Section 8.10   Choice of Law. (1) THIS MORTGAGE WAS NEGOTIATED IN THE
STATE OF NEW YORK, AND MADE BY MORTGAGOR AND ACCEPTED BY THE LENDER GROUP IN
THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL
RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED



15






 





HEREBY,
AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS MORTGAGE AND
THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND
ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES
THE PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND
SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN
DOCUMENTS WITH RESPECT TO THE PROPERTY SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAW OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING
UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND
ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING
HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, MORTGAGOR
HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW
OF ANY OTHER JURISDICTION GOVERNS THIS MORTGAGE OR THE OTHER LOAN DOCUMENTS,
AND THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.



          Section 8.11    Headings. The Article, Section and Subsection titles hereof
are inserted for convenience of reference only and shall in no way alter,
modify or define, or be used in construing, the text of such Articles, Sections
or Subsections.



          Section 8.12    Entire Agreement. This Mortgage and the other Loan Documents
embody the entire agreement and understanding between Mortgagor and Mortgagee
and supersede all prior agreements and understandings between such parties
relating to the subject matter hereof and thereof. Accordingly, the Loan
Documents may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.



          Section 8.13   Mortgagee as Agent; Successor Agents.



               (a)     Agent has been appointed to act as Agent hereunder by the Lender
Group. Agent shall have the right hereunder to make demands, to give notices,
to exercise or refrain from exercising any rights, and to take or refrain from
taking any action (including, without limitation, the release or substitution
of the Mortgaged Property) in accordance with the terms of the Loan Agreement,
any related agency



16






 





agreement among Agent and the Lender Group (collectively, as
amended, supplemented or otherwise modified or replaced from time to time, the
“Agency Documents”) and this Mortgage. Mortgagor and all other persons shall
be entitled to rely on releases, waivers, consents, approvals, notifications
and other acts of Agent, without inquiry into the existence of required
consents or approvals of the Lender Group therefor.


               (b)     Mortgagee shall at all times be the same Person that is Agent under
the Agency Documents. Written notice of resignation by Agent pursuant to the
Agency Documents shall also constitute notice of resignation as Agent under
this Mortgage. Removal of Agent pursuant to any provision of the Agency
Documents shall also constitute removal as Agent under this Mortgage.
Appointment of a successor Agent pursuant to the Agency Documents shall also
constitute appointment of a successor Agent under this Mortgage. Upon the
acceptance of any appointment as Agent by a successor Agent under the Agency
Documents, that successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Agent as the Mortgagee under this Mortgage, and the retiring or removed Agent
shall promptly (i) assign and transfer to such successor Agent all of its
right, title and interest in and to this Mortgage and the Mortgaged Property,
and (ii) execute and deliver to such successor Agent such assignments and
amendments and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Agent of the liens and
security interests created hereunder, whereupon such retiring or removed Agent
shall be discharged from its duties and obligations under this Mortgage. After
any retiring or removed Agent’s resignation or removal hereunder as Agent, the
provisions of this Mortgage and the Agency Documents shall inure to its benefit
as to any actions taken or omitted to be taken by it under this Mortgage while
it was the Agent hereunder.



               (c)     Each reference herein to any right granted to, benefit conferred upon
or power exercisable, exercised or action taken by the “Mortgagee” shall be
deemed to be a reference to or be deemed to have been so taken, as the case may
be, by Mortgagee in its capacity as Agent pursuant to the Loan Agreement for
the benefit of the Lender Group.



ARTICLE 9

LOCAL LAW PROVISIONS



          Section 9.1    Priority of Mortgage Lien. Mortgagee is authorized to do all
things permitted or sanctioned by Ohio Revised Code Section 1311.14, as now
existing or as hereafter amended.



[The remainder of this page has been intentionally left blank]




17









 



     IN
WITNESS WHEREOF, Mortgagor has on the date set forth in the
acknowledgement hereto, effective as of the date first above written, caused
this instrument to be duly EXECUTED AND DELIVERED by authority duly given.



	 	 	 	 	 	 	 
	 	 	
 
	 	MORTGAGOR:
	 	 	 	 	 	 	 
	 	 	 	 	GLOBAL EXCHANGE SERVICES,
	 	 	 	 	INC., a Delaware corporation
	 	 	 	 	 	 	 
	 	 	 	 	By:
	 
	 	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Its: 
	 	 	 	 	 	 	 
	 	 	 	 	LENDER:
	 	 	 	 	 	 	 
	 	 	 	 	FOOTHILL CAPITAL CORPORATION,
	 	 	 	 	a California corporation
	 	 	 	 	 	 	 
	 	 	 	 	By:
	/s/ Todd Nakamoto
	 	 	 	 	 	

	 	 	 	 	Name:  Todd Nakamoto
	 	 	 	 	Its: Vice President




[Signature Page to Mortgage]


 






 



     IN WITNESS WHEREOF, Mortgagor has on the date set forth in the
acknowledgement hereto, effective as of the date first above written, caused
this instrument to be duly EXECUTED AND DELIVERED by authority duly given.



	 	 	 	 	 	 	 
	 	 	
 
	 	MORTGAGOR:
	 	 	 	 	 	 	 
	 	 	 	 	GLOBAL EXCHANGE SERVICES,
	 	 	 	 	INC., a Delaware corporation
	 	 	 	 	 	 	 
	 	 	 	 	By:
	/s/ Bruce E. Hunter
	 	 	 	 	 	

	 	 	 	 	Name: Bruce E. Hunter
	 	 	 	 	Its: Senior Vice President




18