exv10w6



 





EXHIBIT 10.6




 





DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY

AGREEMENT AND FINANCING STATEMENT




From




WEST BUSINESS SERVICES, LP




To




LEHMAN COMMERCIAL PAPER INC.




 






Dated: October 24, 2006

Premises: San Antonio, Texas




Bexar County




 






THIS INSTRUMENT IS TO BE INDEXED AS BOTH A DEED OF TRUST AND A

FIXTURE FILING FILED AS A FINANCING STATEMENT




 






 





 









 






     THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FINANCING STATEMENT dated as of October 24, 2006 (this “Mortgage”), by WEST
BUSINESS SERVICES, LP, a Delaware limited partnership, having an office at 11808
Miracle Hills Drive, Omaha, Nebraska (the “Mortgagor”), to WILLIAM CLEVELAND, ESQ.,
c/o Chicago Title Insurance Company, 909 Fannin, Suite 200, Houston, Texas 77010,
as Trustee (the “Trustee”), for the benefit of LEHMAN COMMERCIAL PAPER INC., a
Delaware corporation, having an office at 745 Seventh Avenue, New York, New York
10019 (the “Mortgagee”) 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 even date hereof (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among West
Corporation, a Delaware corporation, as Borrower (the “Borrower”), Mortgagee, 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 Borrowers
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.



     Mortgagor is an indirect wholly owned Subsidiary of Borrower, and will derive substantial
benefit from the making of the Loans by the Lenders and the issuance of the Letters of Credit by
the L/C Issuers. In order to induce the Lenders to make Loans and the L/C Issuers to issue Letters
of Credit, the Mortgagor has agreed to guarantee, among other things, the due and punctual payment
and performance of all of the obligations of the Borrowers under the Credit Agreement pursuant to
the terms of the Guaranty and the Security Agreement.



2









 





     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 Mortgagor of this
Mortgage in the form hereof to secure the Secured Obligations (as defined in the Security
Agreement).



     Pursuant to the requirements of the Credit Agreement, the Mortgagor is granting to Trustee, in
trust, this Mortgage to create a lien on and a security interest in the Mortgaged Property (as
hereinafter defined) to secure the performance and payment by the Mortgagor 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), Mortgagor hereby grants to
Trustee, in trust, WITH MORTGAGE COVENANTS, a mortgage lien on and a security interest in all of
Mortgagor’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 Mortgagor
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
Mortgagor’s books and records relating thereto and



3









 







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, 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
Mortgagor 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 Mortgagor is
landlord or licensor) and subleases (under which Mortgagor 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 Mortgagor, 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



4









 







of the Mortgaged Property into cash or liquidated claims (“Proceeds”), including
Proceeds of insurance maintained by the Mortgagor 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 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 Mortgagor 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 Mortgagor or constructed, assembled or placed by the Mortgagor 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 Mortgagor, all of which shall become
subject to the lien of this Mortgage as fully and completely, and with the same effect, as
though now owned by the Mortgagor and specifically described herein.


provided that notwithstanding anything to the contrary in this Mortgage, this Mortgage shall not
constitute a grant of a security interest in any general intangible, investment property or other
such rights of a Mortgagor 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 Mortgagor of a security interest
pursuant to this Mortgage 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. Mortgagor shall, if requested to do so by the Mortgagee, use commercially reasonably
efforts to obtain any such required consent that is reasonably obtainable with respect to Mortgaged
Property which the Mortgagee reasonably determines to be material.




     TO HAVE AND TO HOLD the Mortgaged Property unto the Trustee, in trust, 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”).



5









 





ARTICLE I




Representations, Warranties and Covenants of Mortgagor




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



     SECTION 1.01. Title, Mortgage Lien. (a) Mortgagor has good and indefeasible fee
simple title to the Mortgaged Property, subject only to Permitted Encumbrances.



     (b) This Mortgage and the Uniform Commercial Code Financing Statements described in Section
1.08 of this Mortgage, 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) Mortgagor will forever warrant and defend its title to the Mortgaged Property, the rights
of Mortgagee therein under this Mortgage and the validity and priority of the lien of this Mortgage
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 Mortgage is given pursuant to the Credit
Agreement. Mortgagor 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 (as
defined in the Security Agreement)in accordance with the terms of the Loan Documents.



     SECTION 1.03. Maintenance of Mortgaged Property. Mortgagor 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, Mortgagor will purchase flood insurance in
an amount satisfactory to Mortgagee, 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. Mortgagor shall give Mortgagee
prompt written notice of any casualty or other damage to the Mortgaged Property or any proceeding
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. Any Net Cash Proceeds received by or on behalf of the Mortgagor
in respect of any such casualty, damage or taking shall be applied in accordance with the Credit
Agreement.



     SECTION 1.06. Assignment of Leases and Rents. (a) Mortgagor 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 Mortgagor of the Secured Obligations. Mortgagor has not



6









 







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 Mortgagee.



     (b) All Leases entered into by Mortgagor after the date hereof shall be subordinate to the
lien of this Mortgage. Mortgagor 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 Mortgage.



     (c) Subject to Section 1.06(d), Mortgagor has assigned and transferred to Mortgagee all of
Mortgagor’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 Mortgagor, it being intended that this assignment
establish, subject to Section 1.06(d), an absolute transfer and assignment of all Rents and all
Leases to Mortgagee and not merely to grant a security interest therein. Subject to Section
1.06(d), Mortgagee may in Mortgagor’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 Mortgagee 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.



     (d) So long as an Event of Default shall not have occurred and be continuing, Mortgagee will
not exercise any of its rights under Section 1.06(c), and Mortgagor shall receive and collect the
Rents accruing under any Lease; but after the happening and during the continuance of any Event of
Default, Mortgagee 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. Mortgagor 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 Mortgagee to any such
tenant or any of such tenant’s successors in interest, and thereafter to pay Rents to Mortgagee
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 Mortgagor, who shall have no right or
claim against any such tenant or successor in interest for any such Rents so paid to Mortgagee.
Each tenant or any of such tenant’s successors in interest from whom Mortgagee or any officer,
agent, attorney or employee of Mortgagee shall have collected any Rents, shall be authorized to pay
Rents to Mortgagor only after such tenant or any of their successors in interest shall have
received written notice from Mortgagee that the Event of Default is no longer continuing, unless
and until a further notice of an Event of Default is given by Mortgagee to such tenant or any of
its successors in interest.



     (e) Mortgagee will not become a mortgagee in possession so long as it does not enter or take
actual possession of the Mortgaged Property. In addition, so long as it does not enter or take
actual possession of the Mortgaged Property, Mortgagee shall not 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



7









 







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.



     (f) Mortgagor shall furnish to Mortgagee, within 30 days after a request by Mortgagee 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 Mortgage 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”). Mortgagor has hereby granted unto Mortgagee a security
interest in and to all the Mortgaged Property described in this Mortgage that is not real property,
and simultaneously with the recording of this Mortgage, Mortgagor 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 Mortgagor to perfect the security
interest granted by this Mortgage in all the Mortgaged Property that is not real property to the
extent perfection can be obtained by the filing of UCC financing statements. Mortgagor hereby
appoints Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor 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. Mortgagee 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 Mortgagee hereunder.
Notwithstanding any other provision in this Mortgage, in the event of any conflict between the
provisions of this Mortgage and the Security Agreement, the provisions of the Security Agreement
shall control.



     SECTION 1.08. Filing and Recording. Mortgagor will cause this Mortgage, the UCC
financing statements referred to in Section 1.07, 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 interest of Mortgagee in, the Mortgaged Property until this Mortgage
is terminated and released in full in accordance with Section 3.04 hereof. Mortgagor 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 Mortgage, UCC continuation statements any mortgage supplemental hereto, any
security instrument with respect to the Personal Property, Permits, Plans and Warranties and
Proceeds or any instrument of further assurance.



     SECTION 1.09. Further Assurances. Upon request by Mortgagee, Mortgagor will, at the
cost of Mortgagor and without expense to Mortgagee, do, execute, acknowledge and



8









 







deliver all such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, transfers and assurances as Mortgagee shall from time to time reasonably require for
the better assuring, conveying, assigning, transferring and confirming unto Mortgagee the property
and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Mortgagor
may be or may hereafter become bound to convey or assign to Mortgagee, or for carrying out the
intention or facilitating the performance of the terms of this Mortgage, or for filing, registering
or recording this Mortgage, and on demand, Mortgagor will also execute and deliver and hereby
appoints Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor 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 Mortgagee 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
Mortgagor 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 Mortgagor or constructed, assembled or placed by Mortgagor 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, conveyance, assignment or other act by Mortgagor,
shall become subject to the lien and security interest of this Mortgage as fully and completely and
with the same effect as though now owned by Mortgagor and specifically described in the grant of
the Mortgaged Property above, but at any and all times Mortgagor will execute and deliver to
Mortgagee any and all such further assurances, mortgages, conveyances or assignments thereof as
Mortgagee may reasonably require for the purpose of expressly and specifically subjecting the same
to the lien and security interest of this Mortgage.



     SECTION 1.11. No Claims Against Mortgagee. Nothing contained in this Mortgage shall
constitute any consent or request by Mortgagee, 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 Mortgagor 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 Mortgagee in respect
thereof.



     SECTION 1.12. Fixture Filing. (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 Mortgage, 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 Mortgagor. The
name, type of organization and jurisdiction of organization of the debtor for



9









 







purposes of this financing statement are the name, type of organization and jurisdiction of
organization of the Mortgagor set forth in the first paragraph of this Mortgage, and the name of
the secured party for purposes of this financing statement is the name of the Mortgagee set forth
in the first paragraph of this Mortgage. The mailing address of the Mortgagor/debtor is the
address of the Mortgagor set forth in the first paragraph of this Mortgage. The mailing address of
the Mortgagee/secured party from which information concerning the security interest hereunder may
be obtained is the address of the Mortgagee set forth in the first paragraph of this Mortgage.
Mortgagor’s organizational identification number is 3607641.



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 Mortgage.



     SECTION 2.02. Demand for Payment. If an Event of Default shall occur and be
continuing, then, upon written demand of Mortgagee, Mortgagor will pay to Mortgagee all amounts due
hereunder, and under the Credit Agreement, the 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, disbursements and expenses incurred by Mortgagee, and Mortgagee 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 Mortgagor and to collect, in any manner provided
by law, all moneys adjudged or decreed to be payable.



     SECTION 2.03. Right To Cure Mortgagor’s Failure to Perform. Should Mortgagor fail in
the payment, performance or observance of any term, covenant or condition required by this Mortgage
or the Credit Agreement (with respect to the Mortgaged Property), Mortgagee may with notice to
Mortgagor pay, perform or observe the same, and all payments made or costs or expenses incurred by
Mortgagee in connection therewith shall be secured hereby and shall be, within 10 days of demand
repaid by Mortgagor to Mortgagee. Mortgagee shall be the judge using reasonable discretion of the
necessity for any such actions and of the amounts to be paid. Mortgagee 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 Mortgagor, to
any person in possession holding under Mortgagor or to any other person.



     SECTION 2.04. Foreclosure. (a) If an Event of Default occurs and is continuing,
Trustee will, at the request of Mortgagee, sell all or any part of the Mortgaged Property, all as
Trustee in Trustee’s discretion elects. The sale will be made in accordance with Texas Property
Code (“Property Code”) Section 51.002 or any successor statute. If the Land is situated in more
than one county, then required notices will be given in both or all of such



10









 







counties, the Mortgaged Property may be sold in either or any such county, and such notices
shall designate the county where the Mortgaged Property will be sold. The affidavit of any person
having knowledge of the facts to the effect that such service was completed shall be prima facie
evidence of the fact of service. Any sale made by Trustee hereunder may be as an entirety or in
such parcels as Mortgagee may request, and any sale may be adjourned by announcement at the time
and place appointed for such sale without further notice except as may be required by law. The
sale by Trustee of less than the whole of the Mortgaged Property shall not exhaust the power of
sale herein granted, and Trustee is specifically empowered to make successive sale or sales under
such power until the whole of the Mortgaged Property shall be sold; and, if the proceeds of such
sale of less than the whole of the Mortgaged Property shall be less than the aggregate of the
Secured Obligations and the expense of executing this trust as provided herein, this Mortgage and
the lien hereof shall remain in full force and effect as to the unsold portion of the Mortgaged
Property just as though no sale had been made; provided, however, that Mortgagor shall never have
any right to require the sale of less than the whole of the Mortgaged Property but Mortgagee shall
have the right, at its sole election, to request Trustee to sell less than the whole of the
Mortgaged Property. After each sale, Trustee shall make to the purchaser or purchasers at such
sale good and sufficient conveyances in the name of Mortgagor, conveying the property so sold to
the purchaser or purchasers in fee simple with general warranty of title, and shall receive the
proceeds of said sale or sales and apply the same as herein provided. Payment of the purchase
price to Trustee shall satisfy the obligation of purchaser at such sale therefor, and such
purchaser shall not be responsible for the application thereof. The power of sale granted herein
shall not be exhausted by any sale held hereunder by Trustee or his substitute or successor, and
such power of sale may be exercised from time to time and as many times as Mortgagee may deem
necessary until all of the Mortgaged Property has been duly sold and all Secured Obligations have
been fully paid. In the event any sale hereunder is not completed or is defective in the opinion
of Mortgagee, such sale shall not exhaust the power of sale hereunder and Mortgagee shall have the
right to cause a subsequent sale or sales to be made hereunder. Any and all statements of fact or
other recitals made in any deed or deeds given by Trustee or any successor or substitute appointed
hereunder as to nonpayment of the Secured Obligations, or as to the occurrence of any Event of
Default, or as to Mortgagee having declared all of such Secured Obligations to be due and payable,
or as to the request to sell, or as to notice of time, place and terms of sale and of the
properties to be sold having been duly given, or as to the refusal, failure or inability to act of
Trustee or any substitute or successor, or as to the appointment of any substitute or successor
Trustee, or as to any other act or thing having been duly done by Mortgagee or by Trustee or any
substitute or successor, shall be taken as prima facie evidence of the truth of the facts so stated
and recited. Trustee, his successor or substitute, may appoint or delegate any one or more persons
as agent to perform any act or acts necessary or incident to any sale held by Trustee, including,
without limitation, the posting of notices and the conducting of sales, but in the name and on
behalf of Trustee, his successor or substitute. Mortgagee may at any time before the sale direct
Trustee to abandon the sale, and may at any time thereafter direct Trustee to again commence
foreclosure. Whether or not foreclosure is commenced by Trustee, Mortgagee may at any time after
an Event of Default occurs and is continuing institute suit for collection of all or any part of
the Secured Obligations or foreclosure of the lien of this Mortgage or both. If Mortgagee
institutes suit for collection of the Secured



11









 







Obligations and foreclosure of the lien of this Mortgage, Mortgagee may at any time before the
entry of final judgment dismiss the same, and require Trustee to sell the Mortgaged Property in
accordance with the provisions of this Mortgage. No single sale or series of sales under this
Mortgage or by judicial foreclosure will extinguish the lien or exhaust the power of sale under
this Mortgage except with respect to the items of property sold. Trustee (including any successor
trustee) will not be liable for any error of judgment or act done by such party in good faith, or
be otherwise responsible or accountable to Mortgagor under any circumstances.



     (b) Right to Require Proof of Financial Ability and/or Cash Bid. At any time during the
bidding during a sale as described in Section 2.04(a), the Trustee may require a bidding party (a)
to disclose its full name, state and city of residence, occupation, and specific business office
location, and the name and address of the principal the bidding party is representing (if
applicable), and (b) to demonstrate reasonable evidence of the bidding party’s financial ability
(or, if applicable, the financial ability of the principal of such bidding party), as a condition
to the bidding party submitting bids at the foreclosure sale. If any such bidding party (the
“Questioned Bidder”) declines to comply with the Trustee’s requirement in this regard, or if such
Questioned Bidder does respond but the Trustee, in Trustee’s sole and absolute discretion, deems
the information or the evidence of the financial ability of the Questioned Bidder (or, if
applicable, the principal of such bidding party) to be inadequate, then the Trustee may continue
the bidding with reservation; and in such event (i) the Trustee shall be authorized to caution the
Questioned Bidder concerning the legal obligations to be incurred in submitting bids, and (ii) if
the Questioned Bidder is not the highest bidder at the sale, or if having been the highest bidder
the Questioned Bidder fails to deliver the cash purchase price payment promptly to the Trustee, all
bids by the Questioned Bidder shall be null and void. The Trustee may, in Trustee’s sole and
absolute discretion, determine that a credit bid may be in the best interest of Mortgagor and
Mortgagee, and elect to sell the Mortgaged Property for credit or for a combination of cash and
credit; provided, however, that the Trustee shall have no obligation to accept any bid except an
all cash bid. In the event the Trustee requires a cash bid and cash is not delivered within a
reasonable time after conclusion of the bidding process, as specified by the Trustee, but in no
event later than 3:45 p.m. local time on the day of sale, then said contingent sale shall be null
and void, the bidding process may be recommenced, and any subsequent bids or sale shall be made as
if no prior bids were made or accepted.



     (c) Mortgagee shall have the right to become the purchaser at any sale held by any Trustee or
substitute or successor or by any receiver or public officer, and if Mortgagor purchases at any
such sale, Mortgagee shall have the right to credit upon the amount of the bid made therefor, to
the extent necessary to satisfy such bid, the Secured Obligations owing to Mortgagee.



     (d) Trustee may be removed at any time with or without cause, at the option of Mortgagee, by
written declaration of removal executed by Mortgagee, without any notice to or demand upon Trustee,
Mortgagor or any other person. If at any time Trustee is removed, dies or refuses, fails or is
unable to act as Trustee, Mortgagor may appoint any person as successor Trustee hereunder, without
any formality other than a written declaration of appointment executed by Mortgagee. Immediately
upon appointment, the successor Trustee



12









 







so appointed automatically will be vested with all the estate and title in the Mortgaged
Property, and with all of the rights, powers, privileges, authority, options and discretions, and
charged with all of the duties and liabilities, vested in or imposed upon Trustee by this
instrument, and any conveyance executed by any successor Trustee will have the same effect and
validity as if executed by the Trustee named in this Mortgage.



     SECTION 2.05. Other Remedies. (a) In case an Event of Default shall occur and be
continuing, Mortgagee may also exercise, to the extent not prohibited by law, any or all of the
remedies available to a secured party under the UCC.



     (b) In connection with a sale of the Mortgaged Property or any Personal Property and the
application of the proceeds of sale as provided in Section 2.06, to the extent permitted by law
Mortgagee shall be entitled to enforce payment of and to receive up to the principal amount of the
Secured Obligations, plus all other charges, payments and costs due under this Mortgage, and to
recover a deficiency judgment for any portion of the aggregate principal amount of the Secured
Obligations remaining unpaid, with interest.



     SECTION 2.06. Application of Sale Proceeds and Rents. After any foreclosure sale of
all or any of the Mortgaged Property, Mortgagee shall receive and apply the proceeds of the sale
together with any Rents that may have been collected and any other sums that then may be held by
Mortgagee under this Mortgage as follows:




     FIRST, to the payment of all costs and expenses incurred by the Mortgagee in
connection with such collection or sale or otherwise in connection with this Mortgage or
any of the Secured Obligations, including all court costs and the fees and expenses of its
agents and legal counsel, a reasonable fee (not to exceed 1% of the bid) to Trustee acting
under the Provisions of Section 2.04(a), the repayment of all advances made by the
Mortgagee hereunder or under any Mortgage on behalf of Mortgagor and any other costs or
expenses incurred in connection with the exercise of any right or remedy hereunder or under
any Mortgage;




     SECOND, to the payment in full of the Secured Obligations (the amounts so applied to
be distributed among the Secured Parties pro rata in accordance with the amounts of the
Secured Obligations owed to them on the date of any such distribution);




     THIRD, to the Mortgagor, their successors or assigns, or as a court of competent
jurisdiction may otherwise direct.


The Mortgagee shall have absolute discretion as to the time of application of any such proceeds,
moneys or balances in accordance with this Mortgage. Upon any sale of Mortgaged Property by the
Trustee (including pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Trustee shall be a sufficient discharge to the purchaser or purchasers of the
Mortgaged Property so sold and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Mortgagee or such officer or be
answerable in any way for the misapplication thereof.




13









 








     SECTION 2.07. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.
Mortgagor 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 Mortgagee, (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 Mortgage.



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



     SECTION 2.09. Suits To Protect the Mortgaged Property. Mortgagee 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 Mortgage, (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 Mortgagee
hereunder.



     SECTION 2.10. Filing Proofs of Claim. In case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting
Mortgagor, Mortgagee 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 Mortgagee
allowed in such proceedings for the Secured Obligations secured by this Mortgage 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 Mortgagee. Notwithstanding the appointment of any
receiver, liquidator or trustee of Mortgagor, any of its property or the Mortgaged Property,
Mortgagee 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 Mortgage to
Mortgagee in accordance with the terms hereof and applicable law.



     SECTION 2.12. Waiver. (a) No delay or failure by Mortgagee to exercise any right,
power or remedy accruing upon any breach or Event of Default shall exhaust or impair any



14









 







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 Mortgage to
Mortgagee may be exercised from time to time and as often as may be deemed expedient by Mortgagee.
No consent or waiver by Mortgagee to or of any breach or Event of Default by Mortgagor 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 Mortgagor hereunder. No failure on the part of Mortgagee 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 Mortgagee of its rights hereunder or impair any rights, powers or
remedies consequent on any future Event of Default by Mortgagor.



     (b) Even if Mortgagee (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 Mortgage, (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
subordinating Mortgagee’s lien on the Mortgaged Property hereunder; no such act or omission shall
preclude Mortgagee 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 Mortgagee, shall
this Mortgage 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, Mortgagee is 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, Mortgagor and Mortgagee each hereby irrevocably and unconditionally waive trial by jury in any
action, claim, suit or proceeding relating to this Mortgage and for any counterclaim brought
therein.



     SECTION 2.14. Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Mortgagee by this Mortgage 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.



15









 





ARTICLE III




Miscellaneous




     SECTION 3.01. Partial Invalidity. In the event any one or more of the provisions
contained in this Mortgage 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 Mortgagee, not
affect any other provision of this Mortgage, and this Mortgage shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein or therein.



     SECTION 3.02. Notices. All communications and notices hereunder shall (except as
otherwise expressly permitted herein) be in writing and given as provided in Section 10.02 of the
Credit Agreement.



     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 Mortgagor and the successors and
assigns of Mortgagee.



     SECTION 3.04. Satisfaction and Cancelation. (a) The conveyance to Mortgagee of the
Mortgaged Property as security created and consummated by this Mortgage shall be null and void when
all the Secured Obligations (as defined in the Security Agreement) 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.



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



     (c) In connection with any termination or release pursuant to paragraph (a), the Mortgage
shall be marked “satisfied” by the Mortgagee, and this Mortgage shall be canceled of record at the
request and at the expense of the Mortgagor. Mortgagee shall execute any documents reasonably
requested by Mortgagor to accomplish the foregoing or to accomplish any release contemplated by
this Section 3.04 and Mortgagor will pay all reasonable costs and expenses, including reasonable
attorneys’ fees, disbursements and other charges, incurred by Mortgagee in connection with the
preparation and execution of such documents.



     SECTION 3.05. Definitions. As used in this Mortgage, 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



16









 







mean “the Mortgaged Property or any part thereof or interest therein”. Any act that Mortgagee
is permitted to perform hereunder may be performed at any time and from time to time by Mortgagee
or any person or entity designated by Mortgagee. Any act that is prohibited to Mortgagor hereunder
is also prohibited to all lessees of any of the Mortgaged Property. Each appointment of Mortgagee
as attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power of substitution and
coupled with an interest. Subject to the applicable provisions hereof, Mortgagee 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. Mortgagor acknowledges that this
Mortgage is one of a number of Other Mortgages and Collateral Documents that secure the Secured
Obligations. Mortgagor agrees that the lien of this Mortgage shall be absolute and unconditional
and shall not in any manner be affected or impaired by any acts or omissions whatsoever of
Mortgagee, and without limiting the generality of the foregoing, the lien hereof shall not be
impaired by any acceptance by the Mortgagee 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 Mortgagee 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 Mortgagee 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 Mortgagee’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 Mortgage and any exercise of the rights or remedies of Mortgagee
hereunder shall not impair the lien of any of the Other Mortgages and other Collateral Documents or
any of Mortgagee’s rights and remedies thereunder. Mortgagor specifically consents and agrees that
Mortgagee 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 Mortgage may not be changed or terminated
orally. Any agreement made by Mortgagor and Mortgagee after the date of this Mortgage relating to
this Mortgage shall be superior to the rights of the holder of any intervening or subordinate
Mortgage, lien or encumbrance.



     SECTION 3.08. Maximum Interest. It is expressly stipulated and agreed to be the
intent of Mortgagor and Mortgagee at all times to comply strictly with the applicable Texas law
governing the maximum rate or amount of interest payable on the Secured Obligations (or applicable
United States federal law to the extent that it permits Mortgagee to contract for, charge, take,
reserve or receive a greater amount of interest than under Texas law). If the



17









 







applicable law is ever judicially interpreted so as to render usurious any amount (a)
contracted for, charged, taken, reserved or received pursuant to the Loan Documents or any other
communication or writing by or between Mortgagor and Mortgagee related to the transaction or
transactions that are the subject matter of the Loan Documents, (b) contracted for, charged or
received by reason of Mortgagee’s exercise of the option to accelerate the maturity of the Secured
Obligations, or (c) Mortgagor will have paid or Mortgagee will have received by reason of any
voluntary prepayment by Mortgagor of the Secured Obligations, then it is Mortgagor’s and
Mortgagee’s express intent that all amounts charged in excess of the Maximum Lawful Rate (as such
term is defined below) shall be automatically canceled, ab initio, and all amounts in excess of the
Maximum Lawful Rate theretofore collected by Mortgagee shall be credited on the principal balance
of the Secured Obligations (or, if the Secured Obligations have been or would thereby be paid in
full, refunded to Mortgagor), and the provisions of the Secured Obligations immediately be deemed
reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the
necessity of the execution of any new document, so as to comply with the applicable law, but so as
to permit the recovery of the fullest amount otherwise called for hereunder and thereunder;
provided, however, if the Secured Obligations have been paid in full before the end of the stated
term of the Secured Obligations, then Mortgagor and Mortgagee agree that Mortgagee shall, with
reasonable promptness after Mortgagee discovers or is advised by Mortgagor that interest was
received in an amount in excess of the Maximum Lawful Rate, either refund such excess interest to
Mortgagor and/or credit such excess interest against Secured Obligations then owing by Mortgagor to
Mortgagee. Mortgagor hereby agrees that as a condition precedent to any claim seeking usury
penalties against Mortgagee, Mortgagor will provide written notice to Mortgagee, advising Mortgagee
in reasonable detail of the nature and amount of the violation, and Mortgagee shall have sixty (60)
days after receipt of such notice in which to correct such usury violation, if any, by either
refunding such excess interest to Mortgagor or crediting such excess interest against the Secured
Obligations then owing by Mortgagor to Mortgagee. All sums contracted for, charged or received by
Mortgagee for the use, forbearance or detention of any debt evidenced by the Secured Obligations
shall, to the extent permitted by applicable law, be amortized or spread, using the actuarial
method, throughout the stated term of the Secured Obligations (including any and all renewal and
extension periods) until payment in full so that the rate or amount of interest on account of the
Secured Obligations does not exceed the Maximum Lawful Rate from time to time in effect and
applicable to the Secured Obligations for so long as debt is outstanding. In no event shall the
provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan
accounts and revolving triparty accounts) apply to the Secured Obligations. Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents, it is not the
intention of Mortgagee to accelerate the maturity of any interest that has not accrued at the time
of such acceleration or to collect unearned interest at the time of such acceleration.



     SECTION 3.09. “Maximum Lawful Rate” means the maximum non-usurious rate of interest
(or, if the context so requires, an amount calculated at such rate) which Mortgagee is allowed to
contract for, charge, take, reserve, or receive under the Loan Documents pursuant to applicable
federal or state (whichever is higher) law from time to time in effect after taking into account,
to the extent required by applicable federal or state (whichever is higher) law



18









 







from time to time in effect, any and all relevant payments or charges under the Loan
Documents.



ARTICLE IV




Particular Provisions




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



     SECTION 4.01. Applicable Law. This Mortgage shall be governed by and construed in
accordance with the internal law of the state where the Mortgaged Property is located, except that
Mortgagor expressly acknowledges that by their terms, the Credit Agreement and other Loan Documents
(aside from those 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. Mortgagor
and Mortgagee agree to submit to jurisdiction and the laying of venue for any suit on this Mortgage
in the state where the Mortgaged Property is located.



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



THE REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK




19









 








     IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered to Mortgagee by
Mortgagor and is effective as of the date first above written.



	 	 	 	 	 	 	 
	 	 	WEST BUSINESS SERVICES, LP
	 
	 	 	 	 	 	 
	 	 	By West Transaction Services, LLC
	 	 	Its general partner
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Paul M. Mendlik	 	 
	 

	 	Name:
	 	 

Paul M. Mendlik
	 	 
	 

	 	Title:
	 	Manager	 	 







20