exv10w5



 





EXHIBIT 10.5




Recording requested by, and

when recorded, mail to:

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, New York 10153

Attention: Jeffrey D. Lowe, Esq.




DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT




From




WEST CORPORATION, as Trustor




To




CHICAGO TITLE INSURANCE COMPANY, as Trustee




And




LEHMAN COMMERCIAL PAPER INC., as Beneficiary




 






Dated: October 24, 2006

Premises:




Omaha, Nebraska

Douglas County




 









 






THIS INSTRUMENT IS TO BE INDEXED AS BOTH A DEED OF TRUST AND A FIXTURE
FILING FILED AS A FINANCING STATEMENT dated as of October 24, 2006 (this
“Deed Trust”), by WEST CORPORATION, a Delaware corporation, having an
office at 11808 Miracle Hills Drive, Omaha, Nebraska 68154 (“Trustor”), to
CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation, as trustee
(“Trustee”), whose address is 106 W. 11th Street, Kansas City,
Missouri 64105, for the use and benefit of LEHMAN COMMERCIAL PAPER INC.,
having an office at 745 Seventh Avenue, New York, New York 10019
(“Beneficiary”) as Administrative Agent for the Secured Parties (as such
terms are defined below) .



WITNESSETH THAT:




     Reference is made to (i) the Credit Agreement dated as of October 24, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among Trustor, as
Borrower (the “Borrower”), Beneficiary, as Administrative Agent (the “Administrative Agent”),
Deutsche Bank Securities Inc. and Bank of America, N.A. as syndication agents, Wachovia Capital
Markets, LLC and General Electric Capital Corporation as Co-Documentation Agents and the several
financial institutions and other entities from time to time parties thereto (collectively, the
"Lenders”), (ii) the Guaranty (as defined in the Credit Agreement),and (iii) the Security
Agreement (as defined in the Credit Agreement). Capitalized terms used but not defined herein have
the meanings given to them in the Credit Agreement.



     In the Credit Agreement, (i) the Lenders have agreed to make term loans (the “Term Loans”) and
revolving credit loans (the “Revolving Loans”) to the Borrower, (ii) the Swingline Lender has
agreed to make swingline loans to the Borrower (the “Swing Line Loans”, together with Term Loans
and Revolving Loans, the “Loans”) and (iii) the L/C Issuers have issued or agreed to issue from
time to time Letters of Credit for the account of the Borrower, in each case pursuant to, upon the
terms, and subject to the conditions specified in, the Credit Agreement. Amounts paid in respect
of Term Loans may not be reborrowed. Subject to the terms of the Credit Agreement, the Borrower
may borrow, prepay and reborrow Revolving Loans. The Credit Agreement provides that the sum of the
principal amount of the Loans and the Letters of Credit from time to time outstanding and secured
hereby shall not exceed $2,350,000,000.00.



     The obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit
are conditioned upon, among other things, the execution and delivery by the Trustor of this Deed of
Trust in the form hereof to secure the Secured Obligations (as defined in the Security Agreement).



     Pursuant to the requirements of the Credit Agreement, the Trustor is granting this Deed of
Trust to create a lien on and a security interest in the Mortgaged Property (as hereinafter
defined) to secure the performance and payment by the Trustor of the Secured



 









 




Obligations (as defined in the Security Agreement). The Credit Agreement also requires the
granting by other Loan Parties of mortgages, deeds of trust and/or deeds to secure debt (the “Other
Mortgages”) that create liens on and security interests in certain real and personal property other
than the Mortgaged Property to secure the performance of the Secured Obligations (as defined in the
Security Agreement).




Granting Clauses




     NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure the due and punctual
payment and performance of the Secured Obligations (as defined in the Security Agreement) for the
benefit of the Secured Parties (as defined in the Security Agreement), Trustor hereby grants,
conveys, mortgages, assigns and pledges to the Trustee, in trust with POWER OF SALE, for the use
and benefit of the Beneficiary, its successors and assigns, a mortgage lien on and a security
interest in all of Trustor’s right, title, and interest in and to, all the following described
property (the “Mortgaged Property”) whether now owned or held or hereafter acquired:




     (1) the land more particularly described on Exhibit A hereto (the “Land”), together
with all rights appurtenant thereto, including the easements over certain other adjoining
land granted by any easement agreements, covenant or restrictive agreements and all air
rights, mineral rights, water rights, oil and gas rights and development rights, if any,
relating thereto, and also together with all of the other easements, rights, privileges,
interests, hereditaments and appurtenances thereunto belonging or in any way appertaining
and all of the estate, right, title, interest, claim or demand whatsoever of Trustor
therein and in the streets and ways adjacent thereto, either in law or in equity, in
possession or expectancy, now or hereafter acquired (the “Premises”);




     (2) all buildings, improvements, structures, paving, parking areas, walkways and
landscaping now or hereafter erected or located upon the Land, and all fixtures of every
kind and type affixed to the Premises or attached to or forming part of any structures,
buildings or improvements and replacements thereof now or hereafter erected or located upon
the Land (the “Improvements”);




     (3) subject to the terms of the Security Agreement, all apparatus, movable appliances,
building materials, equipment, fittings, furnishings, furniture, machinery and other
articles of tangible personal property of every kind and nature, and replacements thereof,
now or at any time hereafter placed upon or used in any way in connection with the use,
enjoyment, occupancy or operation of the Improvements or the Premises, including all of
Trustor’s books and records relating thereto and including all pumps, tanks, goods,
machinery, tools, equipment, lifts (including fire sprinklers and alarm systems, fire
prevention or control systems, cleaning rigs, air conditioning, heating, boilers,
refrigerating, electronic monitoring, water, loading, unloading, lighting, power,
sanitation, waste removal, entertainment, communications, computers, recreational, window
or structural, maintenance, truck or car repair and all other equipment of every kind),
restaurant, bar and all other indoor or outdoor furniture (including tables,



3









 






chairs, booths, serving stands, planters, desks, sofas, racks, shelves, lockers and
cabinets), bar equipment, glasses, cutlery, uniforms, linens, memorabilia and other
decorative items, furnishings, appliances, supplies, inventory, rugs, carpets and other
floor coverings, draperies, drapery rods and brackets, awnings, venetian blinds,
partitions, chandeliers and other lighting fixtures, freezers, refrigerators, walk-in
coolers, signs (indoor and outdoor), computer systems, cash registers and inventory control
systems, and all other apparatus, equipment, furniture, furnishings, and articles used in
connection with the use or operation of the Improvements or the Premises, it being
understood that the enumeration of any specific articles of property shall in no way result
in or be held to exclude any items of property not specifically mentioned (the property
referred to in this subparagraph (3), the “Personal Property”);




     (4) subject to the terms of the Security Agreement, all general intangibles owned by
Trustor and relating to design, development, operation, management and use of the Premises
or the Improvements, all certificates of occupancy, zoning variances, building, use or
other permits, approvals, authorizations and consents obtained from and all materials
prepared for filing or filed with any governmental agency in connection with the
development, use, operation or management of the Premises and Improvements, all
construction, service, engineering, consulting, leasing, architectural and other similar
contracts concerning the design, construction, management, operation, occupancy and/or use
of the Premises and Improvements, all architectural drawings, plans, specifications, soil
tests, feasibility studies, appraisals, environmental studies, engineering reports and
similar materials relating to any portion of or all of the Premises and Improvements, and
all payment and performance bonds or warranties or guarantees relating to the Premises or
the Improvements, all to the extent assignable (the “Permits, Plans and Warranties”);




     (5) all now or hereafter existing leases or licenses (under which Trustor is landlord
or licensor) and subleases (under which Trustor is sublandlord), concession, management,
mineral or other agreements of a similar kind that permit the use or occupancy of the
Premises or the Improvements for any purpose in return for any payment, or the extraction
or taking of any gas, oil, water or other minerals from the Premises in return for payment
of any fee, rent or royalty (collectively, “Leases”), and all agreements or contracts for
the sale or other disposition of all or any part of the Premises or the Improvements, now
or hereafter entered into by Trustor, together with all charges, fees, income, issues,
profits, receipts, rents, revenues or royalties payable thereunder (“Rents”);




     (6) except as may be provided to the contrary in the Credit Agreement, all real estate
tax refunds and all proceeds of the conversion, voluntary or involuntary, of any of the
Mortgaged Property into cash or liquidated claims (“Proceeds”), including Proceeds of
insurance maintained by the Trustor and condemnation awards, any awards that may become due
by reason of the taking by eminent domain or any transfer in lieu thereof of the whole or
any part of the Premises or Improvements or any rights appurtenant thereto, and any awards
for



4









 






change of grade of streets, together with any and all moneys now or hereafter on
deposit for the payment of real estate taxes, assessments or common area charges levied
against the Mortgaged Property, unearned premiums on policies of fire and other insurance
maintained by the Trustor covering any interest in the Mortgaged Property or required by
the Credit Agreement; and




     (7) all extensions, improvements, betterments, renewals, substitutes and replacements
of and all additions and appurtenances to, the Land, the Premises, the Improvements, the
Personal Property, the Permits, Plans and Warranties and the Leases, hereinafter acquired
by or released to the Trustor or constructed, assembled or placed by the Trustor on the
Land, the Premises or the Improvements, and all conversions of the security constituted
thereby, immediately upon such acquisition, release, construction, assembling, placement or
conversion, as the case may be, and in each such case, without any further mortgage, deed
of trust, conveyance, assignment or other act by the Trustor, all of which shall become
subject to the lien of this Deed of Trust as fully and completely, and with the same
effect, as though now owned by the Trustor and specifically described herein.


provided that notwithstanding anything to the contrary in this Deed of Trust, this Deed of Trust
shall not constitute a grant of a security interest in any general intangible, investment property
or other such rights of a Trustor arising under any contract, lease, instrument, license or other
document if (but only to the extent that) the grant of a security interest therein would (x)
constitute a violation of a valid and enforceable restriction in respect of such general
intangible, investment property or other such rights in favor of a third party or under any law,
regulation, permit, order or decree of any governmental authority, unless and until all required
consents shall have been obtained (for the avoidance of doubt, the restrictions described herein
are not negative pledges or similar undertakings in favor of a lender or other financial
counterparty) or (y) expressly give any other party in respect of any such contract, lease,
instrument, license or other document, the right to terminate its obligations thereunder, provided
however, that the limitation set forth above shall not affect, limit, restrict or impair the grant
by Trustor of a security interest pursuant to this Deed of Trust in any such Mortgaged Property to
the extent that an otherwise applicable prohibition or restriction on such grant is rendered
ineffective by any applicable law, including the UCC. Trustor shall, if requested to do so by the
Beneficiary, use commercially reasonably efforts to obtain any such required consent that is
reasonably obtainable with respect to Mortgaged Property which the Beneficiary reasonably
determines to be material.




     TO HAVE AND TO HOLD the Mortgaged Property unto the Trustee, as trustee for the Beneficiary,
its successors and assigns, for the ratable benefit of the Secured Parties, forever, subject only
to permitted encumbrances pursuant to Section 7.01 of the Credit Agreement (“Permitted
Encumbrances”) and to satisfaction and release as provided in Section 3.04.



5









 





ARTICLE I




Representations, Warranties and Covenants of Trustor




     Trustor agrees, covenants, represents and/or warrants as follows:



     SECTION 1.01. Title, Mortgage Lien.



          (a) Trustor has good and marketable fee simple title to the Mortgaged Property, subject only
to Permitted Encumbrances.




          (b) This Deed of Trust and the Uniform Commercial Code Financing Statements described in
Section 1.09 of this Deed of Trust, when duly recorded in the public records identified in the
Perfection Certificate (as defined in the Security Agreement), will create a valid, perfected and
enforceable lien upon and security interest in all of the Mortgaged Property to the extent
perfection can be obtained by filing uniform commercial code financing statements.




          (c) Trustor will forever warrant and defend its title to the Mortgaged Property, the rights of
Trustee and Beneficiary therein under this Deed of Trust and the validity and priority of the lien
of this Deed of Trust thereon against the claims of all persons and parties except those having
rights under Permitted Encumbrances to the extent of those rights.




     SECTION 1.02. Credit Agreement. This Deed of Trust is given pursuant to the Credit
Agreement. Trustor expressly covenants and agrees to pay when due, and to timely perform, and to
cause the other Loan Parties to pay when due, and to timely perform, the Secured Obligations in
accordance with the terms of the Loan Documents.



     SECTION 1.03. Maintenance of Mortgaged Property. Trustor will maintain the
Improvements and the Personal Property in the manner required by the Credit Agreement.



     SECTION 1.04. Insurance. If any portion of Improvements constituting part of the
Mortgaged Property is located in an area identified as a special flood hazard area by Federal
Emergency Management Agency or other applicable agency, Trustor will purchase flood insurance in an
amount satisfactory to Beneficiary, but in no event less than the maximum limit of coverage
available under the National Flood Insurance Act of 1968, as amended.



     SECTION 1.05. Casualty Condemnation/Eminent Domain. Trustor shall give Beneficiary
prompt written notice of any material casualty or other material damage to the Mortgaged Property
or any proceeding that Trustor receives notice of for the taking of the Mortgaged Property or any
portion thereof or interest therein under power of eminent domain or by condemnation or any similar
proceeding in accordance with, and to the extent required by the Credit Agreement. Net Cash
Proceeds received by or on behalf of the Trustor in respect of any such casualty, damage or taking
shall be applied in accordance with the Credit Agreement.



6









 





     SECTION 1.06. Assignment of Leases and Rents. i) Trustor hereby irrevocably and
absolutely grants, transfers and assigns all of its right title and interest in all Leases,
together with any and all extensions and renewals thereof for purposes of securing and discharging
the performance by Trustor of the Secured Obligations. Trustor has not assigned or executed any
assignment of, and will not assign or execute any assignment of, any Leases or the Rents payable
thereunder to anyone other than Trustee for the benefit of Beneficiary.



          (a) All Leases entered into by Trustor after the date hereof shall be subordinate to the lien
of this Deed of Trust. Trustor will not enter into, modify or amend any Lease if such Lease, as
entered into, modified or amended, will not be subordinate to the lien of this Deed of Trust.




          (b) Subject to Section 1.07(d), Trustor has assigned and transferred to Trustee all of
Trustor’s right, title and interest in and to the Rents now or hereafter arising from each Lease
heretofore or hereafter made or agreed to by Trustor, it being intended that this assignment
establish, subject to Section 1.07(d), an absolute transfer and assignment of all Rents and all
Leases to Trustee and not merely to grant a security interest therein. Subject to Section 1.07(d),
Trustee or Beneficiary may in Trustor’s name and stead (with or without first taking possession of
any of the Mortgaged Property personally or by receiver as provided herein) operate the Mortgaged
Property and rent, lease or let all or any portion of any of the Mortgaged Property to any party or
parties at such rental and upon such terms as Beneficiary shall, in its sole discretion, determine,
and may collect and have the benefit of all of said Rents arising from or accruing at any time
thereafter or that may thereafter become due under any Lease.




          (c) So long as an Event of Default shall not have occurred and be continuing, Beneficiary will
not exercise any of its rights under Section 1.07(c), and Trustor shall receive and collect the
Rents accruing under any Lease; but after the happening and during the continuance of any Event of
Default, Beneficiary may, at its option, receive and collect all Rents and enter upon the Premises
and Improvements through its officers, agents, employees or attorneys for such purpose and for the
operation and maintenance thereof. Trustor hereby irrevocably authorizes and directs each tenant,
if any, and each successor, if any, to the interest of any tenant under any Lease, respectively, to
rely upon any notice of a claimed Event of Default sent by Beneficiary to any such tenant or any of
such tenant’s successors in interest, and thereafter to pay Rents to Beneficiary without any
obligation or right to inquire as to whether an Event of Default actually exists and even if some
notice to the contrary is received from the Trustor, who shall have no right or claim against any
such tenant or successor in interest for any such Rents so paid to Beneficiary. Each tenant or any
of such tenant’s successors in interest from whom Beneficiary or any officer, agent, attorney or
employee of Beneficiary shall have collected any Rents, shall be authorized to pay Rents to Trustor
only after such tenant or any of their successors in interest shall have received written notice
from Beneficiary that the Event of Default is no longer continuing, unless and until a further
notice of an Event of Default is given by Beneficiary to such tenant or any of its successors in
interest.




7









 





          (d) Neither Trustee nor Beneficiary will become a mortgagee in possession so long as it does
not enter or take actual possession of the Mortgaged Property. In addition, neither Trustee nor
Beneficiary shall be responsible or liable for performing any of the obligations of the landlord
under any Lease, for any waste by any tenant, or others, for any dangerous or defective conditions
of any of the Mortgaged Property, for negligence in the management, upkeep, repair or control of
any of the Mortgaged Property or any other act or omission by any other person.




          (e) Trustor shall furnish to Beneficiary, within 30 days after a request by Beneficiary to do
so, a written statement containing the names of all tenants, subtenants and concessionaires of the
Premises or Improvements, the terms of any Lease, the space occupied and the rentals and/or other
amounts payable thereunder.




     SECTION 1.07. Security Agreement. This Deed of Trust is both a mortgage of real
property and a grant of a security interest in personal property, and shall constitute and serve as
a “Security Agreement” within the meaning of the uniform commercial code as adopted in the state
wherein the Premises are located (“UCC”). Trustor has hereby granted unto Beneficiary a security
interest in and to all the Mortgaged Property described in this Deed of Trust that is not real
property, and simultaneously with the recording of this Deed of Trust, Trustor has filed or will
file UCC financing statements, and will file continuation statements prior to the lapse thereof, at
the appropriate offices in the jurisdiction of formation of the Trustor to perfect the security
interest granted by this Deed of Trust in all the Mortgaged Property that is not real property to
the extent perfection can be obtained by the filing of UCC financing statements. Trustor hereby
appoints Beneficiary as its true and lawful attorney-in-fact and agent, for Trustor and in its
name, place and stead, in any and all capacities, to execute any document and to file the same in
the appropriate offices (to the extent it may lawfully do so), and to perform each and every act
and thing reasonably requisite and necessary to be done to perfect the security interest
contemplated by the preceding sentence. Beneficiary shall have all rights with respect to the part
of the Mortgaged Property that is the subject of a security interest afforded by the UCC in
addition to, but not in limitation of, the other rights afforded Trustee or Beneficiary hereunder
and under the Subsidiary Guaranty.



     SECTION 1.08. Filing and Recording. Trustor will cause this Deed of Trust, the UCC
financing statements referred to in Section 1.09, any other security instrument creating a security
interest in or evidencing the lien hereof upon the Mortgaged Property and each UCC continuation
statement and instrument of further assurance to be filed, registered or recorded and, if
necessary, refiled, rerecorded and reregistered, in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to perfect the lien
hereof upon, and the security interests of Trustee and Beneficiary in, the Mortgaged Property until
this Deed of Trust is terminated and released in full in accordance with Section 3.04 hereof.
Trustor will pay all filing, registration and recording fees, all Federal, state, county and
municipal recording, documentary or intangible taxes and other taxes, duties, imposts, assessments
and charges, and all reasonable expenses incidental to or arising out of or in connection with the
execution, delivery and recording of this Deed of Trust, UCC continuation statements any deed of
trust supplemental hereto, any security instrument with respect to



8









 




the Personal Property, Permits, Plans and Warranties and Proceeds or any instrument of further
assurance.




     SECTION 1.09. Further Assurances. Upon demand by Beneficiary, Trustor will, at the
cost of Trustor and without expense to Trustee or Beneficiary, do, execute, acknowledge and deliver
all such further acts, deeds, conveyances, mortgages, deeds of trust, assignments, notices of
assignment, transfers and assurances as Trustee or Beneficiary shall from time to time reasonably
require for the better assuring, conveying, assigning, transferring and confirming unto Trustee the
property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which
Trustor may be or may hereafter become bound to convey or assign to Trustee, or for carrying out
the intention or facilitating the performance of the terms of this Deed of Trust, or for filing,
registering or recording this Deed of Trust, and on demand, Trustor will also execute and deliver
and hereby appoints Trustee as its true and lawful attorney-in-fact and agent, for Trustor and in
its name, place and stead, in any and all capacities, to execute and file to the extent it may
lawfully do so, one or more financing statements, chattel mortgages or comparable security
instruments reasonably requested by Trustee or Beneficiary to evidence more effectively the lien
hereof upon the Personal Property and to perform each and every act and thing reasonably requested
to be done to accomplish the same.



     SECTION 1.10. Additions to Mortgaged Property. All right, title and interest of
Trustor in and to all extensions, improvements, betterments, renewals, substitutes and replacements
of, and all additions and appurtenances to, the Mortgaged Property hereafter acquired by or
released to Trustor or constructed, assembled or placed by Trustor upon the Premises or the
Improvements, and all conversions of the security constituted thereby, immediately upon such
acquisition, release, construction, assembling, placement or conversion, as the case may be, and in
each such case without any further mortgage, deed of trust, conveyance, assignment or other act by
Trustor, shall become subject to the lien and security interest of this Deed of Trust as fully and
completely and with the same effect as though now owned by Trustor and specifically described in
the grant of the Mortgaged Property above, but at any and all times Trustor will execute and
deliver to Trustee any and all such further assurances, mortgages, conveyances or assignments
thereof as Trustee or Beneficiary may reasonably require for the purpose of expressly and
specifically subjecting the same to the lien and security interest of this Deed of Trust.



     SECTION 1.11. No Claims Against Trustee, Beneficiary. Nothing contained in this Deed
of Trust shall constitute any consent or request by Trustee or Beneficiary, express or implied, for
the performance of any labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof, nor as giving Trustor or Beneficiary any
right, power or authority to contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in such fashion as would permit the making of any
claim against Trustee or Beneficiary in respect thereof.



     SECTION 1.12. Fixture Filing.



9









 





          (a) Certain portions of the Mortgaged Property are or will become “fixtures” (as that term is
defined in the UCC) on the Land, and this Deed of Trust, upon being filed for record in the real
estate records of the county wherein such fixtures are situated, shall operate also as a financing
statement filed as a fixture filing in accordance with the applicable provisions of said UCC upon
such portions of the Mortgaged Property that are or become fixtures.




          (b) The real property to which the fixtures relate is described in Exhibit A attached hereto.
The record owner of the real property described in Exhibit A attached hereto is Trustor. The name,
type of organization and jurisdiction of organization of the debtor for purposes of this financing
statement are the name, type of organization and jurisdiction of organization of the Trustor set
forth in the first paragraph of this Deed of Trust, and the name of the secured party for purposes
of this financing statement is the name of the Beneficiary set forth in the first paragraph of this
Deed of Trust. The mailing address of the Trustor/debtor is the address of the Trustor set forth
in the first paragraph of this Deed of Trust. The mailing address of the Beneficiary/secured party
from which information concerning the security interest hereunder may be obtained is the address of
the Beneficiary set forth in the first paragraph of this Deed of Trust. Trustor’s organizational
identification number is 2372664.




ARTICLE II




Defaults and Remedies




     SECTION 2.01. Events of Default. Any Event of Default under the Credit Agreement (as
such term is defined therein) shall constitute an Event of Default under this Deed of Trust.



     SECTION 2.02. Demand for Payment. If an Event of Default shall occur and be
continuing, then, upon written demand of Trustee or Beneficiary, Trustor will pay to Beneficiary
all amounts due hereunder and under the Credit Agreement, the Subsidiary Guaranty and the Security
Agreement and such further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable attorneys’ fees (to the extent permitted by the laws of the state
in which the Mortgaged Property is located), disbursements and expenses incurred by Trustee or
Beneficiary, and Trustee and Beneficiary shall be entitled and empowered to institute an action or
proceedings at law or in equity for the collection of the sums so due and unpaid, to prosecute any
such action or proceedings to judgment or final decree, to enforce any such judgment or final
decree against Trustor and to collect, in any manner provided by law, all moneys adjudged or
decreed to be payable.



     SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues. If an Event of
Default shall occur and be continuing, Trustor shall, upon demand of Beneficiary, forthwith
surrender to Beneficiary actual possession of the Mortgaged Property and, if and to the extent not
prohibited by applicable law, Beneficiary itself, or by such officers or agents as it may appoint,
may then enter and take possession of all the Mortgaged Property without the appointment of a
receiver or an application therefor,



10









 





exclude Trustor and its agents and employees wholly therefrom, and have access to the books,
papers and accounts of Trustor.




          (a) If Trustor shall for any reason fail to surrender or deliver the Mortgaged Property or any
part thereof after such demand by Beneficiary, Beneficiary may to the extent not prohibited by
applicable law, obtain a judgment or decree conferring upon Beneficiary the right to immediate
possession or requiring Trustor to deliver immediate possession of the Mortgaged Property to
Beneficiary, to the entry of which judgment or decree Trustor hereby specifically consents.
Trustor will pay to Beneficiary, as the case may be, upon demand, all reasonable expenses of
obtaining such judgment or decree, including reasonable compensation to Beneficiary’s attorneys and
agents, to the extent permitted by the laws of the state in which the Mortgaged Property is located
and all such expenses and compensation shall, until paid, be secured by this Deed of Trust.




          (b) Upon every such entry or taking of possession, Beneficiary may, to the extent not
prohibited by applicable law, hold, store, use, operate, manage and control the Mortgaged Property,
conduct the business thereof and, from time to time, (i) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements thereto and thereon, (ii)
purchase or otherwise acquire additional fixtures, personalty and other property, (iii) insure or
keep the Mortgaged Property insured, (iv) manage and operate the Mortgaged Property and exercise
all the rights and powers of Trustor to the same extent as Trustor could in its own name or
otherwise with respect to the same, or (v) enter into any and all agreements with respect to the
exercise by others of any of the powers herein granted Beneficiary, all as may from time to time be
directed or determined by Beneficiary to be in its best interest and Trustor hereby appoints
Beneficiary as its true and lawful attorney-in-fact and agent, for Trustor and in its name, place
and stead, in any and all capacities, to perform any of the foregoing acts. Beneficiary may
collect and receive all the Rents, issues, profits and revenues from the Mortgaged Property,
including those past due as well as those accruing thereafter, and, after deducting (i) all
expenses of taking, holding, managing and operating the Mortgaged Property (including compensation
for the services of all persons employed for such purposes), (ii) the costs of all such
maintenance, repairs, renewals, replacements, additions, betterments, improvements, purchases and
acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and other similar charges
as Beneficiary may at its option pay, (v) other proper charges upon the Mortgaged Property or any
part thereof and (vi) the compensation, expenses and disbursements of the attorneys and agents of
Beneficiary Beneficiary, Beneficiary shall apply the remainder of the moneys and proceeds so
received first to the payment of the Beneficiary for the satisfaction of the Secured Obligations,
and second, if there is any surplus, to Trustor, subject to the entitlement of others thereto under
applicable law.




          (c) Whenever, before any sale of the Mortgaged Property under Section 2.06, all Secured
Obligations that are then due shall have been paid and all Events of Default fully cured,
Beneficiary will surrender possession of the Mortgaged Property back to Trustor, its successors or
assigns. The same right of taking possession
 


11









 







shall, however, arise again if any subsequent Event of Default shall occur and be continuing.




     SECTION 2.04. Right To Cure Trustor’s Failure to Perform. Should Trustor fail in the
payment, performance or observance of any term, covenant or condition required by this Deed of
Trust or the Credit Agreement (with respect to the Mortgaged Property), Beneficiary may pay,
perform or observe the same, and all payments made or costs or expenses incurred by Beneficiary in
connection therewith shall be secured hereby and shall be, within 10 days of demand repaid by
Trustor to Beneficiary. Beneficiary shall be the judge using reasonable discretion of the
necessity for any such actions and of the amounts to be paid. Beneficiary is hereby empowered to
enter and to authorize others to enter upon the Premises or the Improvements or any part thereof
for the purpose of performing or observing any such defaulted term, covenant or condition without
having any obligation to so perform or observe and without thereby becoming liable to Trustor, to
any person in possession holding under Trustor or to any other person.



     SECTION 2.05. Right to a Receiver. If an Event of Default shall occur and be
continuing, Beneficiary, upon application to a court of competent jurisdiction, shall be entitled
as a matter of right to the appointment of a receiver to take possession of and to operate the
Mortgaged Property and to collect and apply the Rents. The receiver shall have all of the rights
and powers permitted under the laws of the state wherein the Mortgaged Property is located.
Trustor shall pay to Beneficiary within 10 days of demand, all reasonable expenses, including
receiver’s fees, reasonable attorney’s fees (to the extent permitted by the laws of the state in
which the Mortgaged Property is located) and disbursements, costs and agent’s compensation incurred
pursuant to the provisions of this Section 2.05; and all such expenses shall be secured by this
Deed of Trust and shall be within 10 days of demand, repaid by Trustor to Beneficiary.



     SECTION 2.06 Foreclosure and Sale. (a) Upon the occurrence and during the
continuance of one or more Events of Default, Beneficiary may declare all indebtedness secured
hereby immediately due and payable and, at the option of Beneficiary, this Deed of Trust may be
foreclosed in the manner provided by law for the foreclosure of mortgages on real property or may
be sold in the manner provided in the Nebraska Trust Deeds Act, Neb. Rev. Stat. § 76-1001, et seq.
under the power of sale conferred upon the Trustee hereunder.



     (b) If the Mortgaged Property is sold pursuant to the power of sale conferred upon Trustee
hereunder, Trustee shall cause to be filed of record a written notice of default and election to
sell the Mortgaged Property. After the lapse of such time as then may be required by law following
recordation of such notice of default, and notice of sale having been given as then required by
law, Trustee, without demand on Trustor, shall sell the Mortgaged Property, either as a whole or in
separate parcels, and in such order as it or Beneficiary may determine, at public auction to the
highest bidder. Trustee may postpone the sale of all or any portion of the Mortgaged Property by
public announcement at the time and place of sale, and from time to time thereafter may postpone
the sale by public announcement at the time and place fixed by the preceding



12









 




postponement. Trustee shall deliver to such purchaser its deed conveying any Mortgaged
Property so sold, but without any covenant or warranty, express or implied. The recital in such
deed of any matters of fact or otherwise shall be conclusive proof of the truthfulness thereof.
Any person, including Trustor, Trustee or Beneficiary, may purchase at such sale. Trustee shall
apply the proceeds of the Trustee’s sale, first, to the costs and expenses of exercising the power
of sale and of the sale, including the payment of Trustee’s fees actually incurred, second, to the
payment of any Secured Obligations, third, to the payment of junior trust deeds, mortgages or other
liens, and the balance, if any, to the person or persons legally entitled thereto.




     (c) Trustor agrees, for itself and any and all persons or concerns claiming by, through or
under Trustor, that if one or more of Trustor or any such persons or concerns shall hold possession
of the Mortgaged Property, or any part thereof, subsequent to the Trustee’s or judicial sale
hereunder, it, or the parties so holding possession, shall become, and be considered as, tenants at
will of the purchaser or purchasers at either such sale; and any such tenant failing or refusing to
surrender possession upon demand shall be guilty of forcible detainer and shall be liable to such
purchaser or purchasers for reasonable rental of the Mortgaged Property, and shall be subject to
eviction and removal, forcible or otherwise, with or without process of law, and all damages which
may be sustained by any such tenant as a result thereof are hereby expressly waived.



     SECTION 2.07 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.
Trustor waives, to the extent not prohibited by law, (i) the benefit of all laws now existing or
that hereafter may be enacted (x) providing for any appraisement or valuation of any portion of the
Mortgaged Property and/or (y) in any way extending the time for the enforcement or the collection
of amounts due under any of the Secured Obligations or creating or extending a period of redemption
from any sale made in collecting said debt or any other amounts due Trustee or Beneficiary, (ii)
any right to at any time insist upon, plead, claim or take the benefit or advantage of any law now
or hereafter in force providing for any homestead exemption, stay, statute of limitations,
extension or redemption, or sale of the Mortgaged Property as separate tracts, units or estates or
as a single parcel in the event of foreclosure or notice of deficiency, and (iii) all rights of
redemption, valuation, appraisement, stay of execution, notice of election to mature or declare due
the whole of or each of the Secured Obligations and marshaling in the event of foreclosure of this
Deed of Trust.



     SECTION 2.08 Discontinuance of Proceedings. In case Trustee shall proceed to enforce
any right, power or remedy under this Deed of Trust by power of sale, foreclosure, entry or
otherwise, and such proceedings shall be discontinued or abandoned for any reason, or shall be
determined adversely to Trustee, then and in every such case Trustor and Trustee shall be restored
to their former positions and rights hereunder, and all rights, powers and remedies of Trustee and
Beneficiary shall continue as if no such proceeding had been taken.



     SECTION 2.09 Suits To Protect the Mortgaged Property. Trustee shall have power (a) to
institute and maintain suits and proceedings to prevent any impairment of the Mortgaged Property by
any acts that may be unlawful or in violation of this Deed



13









 




of Trust, (b) to preserve or protect its interest in the Mortgaged Property and in the Rents
arising therefrom and (c) to restrain the enforcement of or compliance with any legislation or
other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair the security or be
prejudicial to the interest of Trustee or Beneficiary hereunder.




     SECTION 2.10 Filing Proofs of Claim. In case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting
Trustor, Trustee or Beneficiary shall, to the extent permitted by law, be entitled to file such
proofs of claim and other documents as may be necessary or advisable in order to have the claims of
Trustee and Beneficiary allowed in such proceedings for the Secured Obligations secured by this
Deed of Trust at the date of the institution of such proceedings and for any interest accrued, late
charges and additional interest or other amounts due or that may become due and payable hereunder
after such date.



     SECTION 2.11 Possession by Trustee, Beneficiary. Notwithstanding the appointment of
any receiver, liquidator or trustee of Trustor, any of its property or the Mortgaged Property,
Trustee or Beneficiary shall be entitled, to the extent not prohibited by law, to remain in
possession and control of all parts of the Mortgaged Property now or hereafter granted under this
Deed of Trust to Trustee in accordance with the terms hereof and applicable law.



     SECTION 2.12 Waiver. (a) No delay or failure by Trustee or Beneficiary to exercise
any right, power or remedy accruing upon any breach or Event of Default shall exhaust or impair any
such right, power or remedy or be construed to be a waiver of any such breach or Event of Default
or acquiescence therein; and every right, power and remedy given by this Deed of Trust to Trustee
or Beneficiary may be exercised from time to time and as often as may be deemed expedient by
Trustee or Beneficiary, as the case may be. No consent or waiver by Trustee or Beneficiary to or
of any breach or Event of Default by Trustor in the performance of the Secured Obligations shall be
deemed or construed to be a consent or waiver to or of any other breach or Event of Default in the
performance of the same or of any other Secured Obligations by Trustor hereunder. No failure on
the part of Trustee or Beneficiary to complain of any act or failure to act or to declare an Event
of Default, irrespective of how long such failure continues, shall constitute a waiver by Trustee
or Beneficiary of its rights hereunder or impair any rights, powers or remedies consequent on any
future Event of Default by Trustor.



     (b) Even if Trustee or Beneficiary (i) grants some forbearance or an extension of time for
the payment of any sums secured hereby, (ii) takes other or additional security for the payment of
any sums secured hereby, (iii) waives or does not exercise some right granted herein or under the
Loan Documents, (iv) releases a part of the Mortgaged Property from this Deed of Trust, (v) agrees
to change some of the terms, covenants, conditions or agreements of any of the Loan Documents, (vi)
consents to the filing of a map, plat or replat affecting the Premises, (vii) consents to the
granting of an easement or other right affecting the Premises or (viii) makes or consents to an
agreement



14









 




subordinating Trustee’s lien on the Mortgaged Property hereunder; no such act or omission
shall preclude Trustee or Beneficiary from exercising any other right, power or privilege herein
granted or intended to be granted in the event of any breach or Event of Default then made or of
any subsequent default; nor, except as otherwise expressly provided in an instrument executed by
Trustee, shall this Deed of Trust be altered thereby. In the event of the sale or transfer by
operation of law or otherwise of all or part of the Mortgaged Property, Trustee and Beneficiary are
hereby authorized and empowered to deal with any vendee or transferee with reference to the
Mortgaged Property secured hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the original parties
hereto and without in any way releasing or discharging any liabilities, obligations or
undertakings.




     SECTION 2.13 Waiver of Trial by Jury. To the fullest extent permitted by applicable
law, Trustor, Trustee and Beneficiary each hereby irrevocably and unconditionally waive trial by
jury in any action, claim, suit or proceeding relating to this Deed of Trust and for any
counterclaim brought therein.



     SECTION 2.14 Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Trustee or Beneficiary by this Deed of Trust is intended to be exclusive of any other
right, power or remedy, and each and every such right, power and remedy shall be cumulative and
concurrent and in addition to any other right, power and remedy given hereunder or now or hereafter
existing at law or in equity or by statute.



ARTICLE III




Miscellaneous




     SECTION 3.01. Partial Invalidity. In the event any one or more of the provisions
contained in this Deed of Trust shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such validity, illegality or unenforceability shall, at the option of
Trustee or Beneficiary, not affect any other provision of this Deed of Trust, and this Deed of
Trust shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein or therein.



     SECTION 3.02. Notices. All notices and communications hereunder shall be in writing
and given to Trustor in accordance with the terms of the Credit Agreement at the address set forth
on the first page of this Deed of Trust and to the Trustee and Beneficiary as provided in the
Credit Agreement. Each party to this Deed of Trust hereby requests that a copy of any notice of
default and copy of any notice of sale hereunder be mailed to such party at the address set forth
herein at the same time and in the same manner required as if a separate request had been filed by
such party.



     SECTION 3.03. Successors and Assigns. All of the grants, covenants, terms, provisions
and conditions herein shall run with the Premises and the Improvements and shall apply to, bind and
inure to, the benefit of the permitted successors and assigns of Trustor and the successors and
assigns of Trustee.



15









 





     SECTION 3.04. Satisfaction and Cancellation. The conveyance to Trustee of the
Mortgaged Property as security created and consummated by this Deed of Trust shall be null and void
when all the Secured Obligations have been indefeasibly paid in full in accordance with the terms
of the Loan Documents and the Lenders have no further commitment to make Loans under the Credit
Agreement, the L/C Obligations have been reduced to zero and the L/C Issuers have no further
obligations to issue Letters of Credit under the Credit Agreement.



          (a) Upon a sale or financing by Trustor of all or any portion of the Mortgaged Property that
is permitted by the Credit Agreement, the lien of this Deed of Trust shall be automatically
released from the applicable portion of the Mortgaged Property. Trustor shall give the Trustee
reasonable written notice of any sale or financing of the Mortgaged Property prior to the closing
of such sale or financing.




          (b) In connection with any termination or release pursuant to paragraph (a), Beneficiary
shall, upon written request by Trustor or Trustor’s successor in interest or designated
representative or by the holder of a junior deed of trust or junior mortgagee, deliver to such
requesting party within the period specified by the Nebraska Trust Deeds Act, a reconveyance in
recordable form duly executed by Trustee. The Beneficiary shall, upon written request, deliver
this Deed of Trust, all at the expense of the Trustor. Trustee shall execute any documents
reasonably requested by Trustor to accomplish the foregoing or to accomplish any release
contemplated by this Section 3.04 and Trustor will pay all reasonable costs and expenses, including
reasonable attorneys’ fees (to the extent permitted by the laws of the state where the Mortgaged
Property is located), disbursements and other charges, incurred by Trustee and Beneficiary in
connection with the preparation and execution of such documents.




     SECTION 3.05. Definitions. As used in this Deed of Trust, the singular shall include
the plural as the context requires and the following words and phrases shall have the following
meanings: (a) “including” shall mean “including but not limited to”; (b) “provisions” shall mean
“provisions, terms, covenants and/or conditions”; (c) “lien” shall mean “lien, charge, encumbrance,
security interest, mortgage or deed of trust”; (d) “obligation” shall mean “obligation, duty,
covenant and/or condition”; and (e) “any of the Mortgaged Property” shall mean “the Mortgaged
Property or any part thereof or interest therein”. Any act that Trustee or Beneficiary is
permitted to perform hereunder may be performed at any time and from time to time by Trustee or
Beneficiary, or by any person or entity designated by Trustee or Beneficiary. Any act that is
prohibited to Trustor hereunder is also prohibited to all lessees of any of the Mortgaged Property.
Each appointment of Trustee as attorney-in-fact for Trustor under the Deed of Trust is
irrevocable, with power of substitution and coupled with an interest. Subject to the applicable
provisions hereof, each of Trustee and Beneficiary has the right to refuse to grant its consent,
approval or acceptance or to indicate its satisfaction, in its sole discretion, whenever such
consent, approval, acceptance or satisfaction is required hereunder.



     SECTION 3.06. Multisite Real Estate Transaction. Trustor acknowledges that this Deed
of Trust is one of a number of Other Mortgages and Collateral Documents



16









 




that secure the Secured Obligations. Trustor agrees that the lien of this Deed of Trust shall
be absolute and unconditional and shall not in any manner be affected or impaired by any acts or
omissions whatsoever of Trustee or Beneficiary, and without limiting the generality of the
foregoing, the lien hereof shall not be impaired by any acceptance by the Beneficiary of any
security for or guarantees of any of the Secured Obligations hereby secured, or by any failure,
neglect or omission on the part of Trustee or Beneficiary to realize upon or protect any Secured
Obligation or indebtedness hereby secured or any collateral security therefor including the Other
Mortgages and other Collateral Documents. The lien hereof shall not in any manner be impaired or
affected by any release (except as to the property released), sale, pledge, surrender, compromise,
settlement, renewal, extension, indulgence, alteration, changing, modification or disposition of
any of the Secured Obligations secured or of any of the collateral security therefor, including the
Other Mortgages and other Collateral Documents or of any guarantee thereof, and Beneficiary may at
its discretion foreclose, exercise any power of sale, or exercise any other remedy available to it
under any or all of the Other Mortgages and other Collateral Documents without first exercising or
enforcing any of its rights and remedies hereunder. Such exercise of Beneficiary’s rights and
remedies under any or all of the Other Mortgages and other Collateral Documents shall not in any
manner impair the indebtedness hereby secured or the lien of this Deed of Trust and any exercise of
the rights or remedies of Trustee or Beneficiary hereunder shall not impair the lien of any of the
Other Mortgages and other Collateral Documents or any of Beneficiary’s rights and remedies
thereunder. Trustor specifically consents and agrees that Beneficiary may exercise its rights and
remedies hereunder and under the Other Mortgages and other Collateral Documents separately or
concurrently and in any order that it may deem appropriate and waives any rights of subrogation.




     SECTION 3.07. No Oral Modification. This Deed of Trust may not be changed or
terminated orally. Any agreement made by Trustor and Trustee or Beneficiary after the date of this
Deed of Trust relating to this Deed of Trust shall be superior to the rights of the holder of any
intervening or subordinate Deed of Trust, lien or encumbrance.



ARTICLE IV




Particular Provisions




     This Deed of Trust is subject to the following provisions relating to the particular laws of
the state wherein the Premises are located:



     SECTION 4.01. Applicable Law; Certain Particular Provisions. This Deed of Trust shall
be governed by and construed in accordance with the internal law of the state where the Mortgaged
Property is located, except that Trustor expressly acknowledges that by their terms, the Credit
Agreement and other Loan Documents (aside from Other Mortgages to be recorded outside New York)
shall be governed by the internal law of the State of New York, without regard to principles of
conflict of law. Trustor and Trustee agree to submit to jurisdiction and the laying of venue for
any suit on this Deed of Trust in the state where the Mortgaged Property is located. The terms and



17









 




provisions set forth in Appendix A attached hereto are hereby incorporated by reference as
though fully set forth herein. In the event of any conflict between the terms and provisions
contained in the body of this Deed of Trust and the terms and provisions set forth in Appendix A,
the terms and provisions set forth in Appendix A shall govern and control.




     SECTION 4.02. General Authority of the Beneficiary. By acceptance of the benefits of
this Deed of Trust, each Secured Party (whether or not a signatory hereto) shall be deemed
irrevocably (a) to consent to the appointment of the Beneficiary as its agent hereunder, (b) to
confirm that the Beneficiary shall have the authority to act as the exclusive agent of such Secured
Party for the enforcement of any provisions of this Deed of Trust against Trustor, the exercise of
remedies hereunder or thereunder and the giving or withholding of any consent or approval hereunder
or thereunder relating to any Mortgaged Property or Trustor’s obligations with respect thereto, (c)
to agree that it shall not take any action to enforce any provisions of this Deed of Trust against
any Trustor, to exercise any remedy hereunder or thereunder or to give any consents or approvals
hereunder or thereunder except as expressly provided in this Deed of Trust and (d) to agree to be
bound by the terms of this Deed of Trust.



THE REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK




18









 








     IN WITNESS WHEREOF, this Deed of Trust has been duly executed and delivered to Trustee by
Trustor on the date of the acknowledgment attached hereto.



	 	 	 	 	 
	 

	 	WEST CORPORATION

	 
	 	 	 	 
	 

	 	By:
	 	/s/ Paul M. Mendlik
	 

	 	 	 	 
	 

	 	Name:
	 	Paul M. Mendlik
	 

	 	Title:
	 	Chief Financial Officer and Treasurer







19