exv4w5






Exhibit 4.5




 





OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND

RENTS, SECURITY AGREEMENT AND FIXTURE FILING



FROM



MASON FAMILY RESORTS, LLC, as Mortgagor,



TO



U.S. BANK NATIONAL ASSOCIATION, in its capacity as Collateral Agent,

as Mortgagee



Executed as of April 5, 2010

Dated and Effective as of April 7, 2010



	 	 	 	 	 

	 	 	Relating to Premises at:
	 

	 	Location:
	 	2501 Great Wolf Drive
	 

	 	Municipality:
	 	Mason
	 

	 	County:
	 	Warren
	 

	 	State:
	 	Ohio
	 	 	Permanent Parcel No.: 16-18-300-019-1 & 16-18-300-019-2






 





Prepared outside the state of Ohio

and after recording please return to:



Jeffrey N. Anderson

Latham & Watkins LLP

233 S. Wacker Dr., Suite 5800

Chicago, IL 60606



 




MAXIMUM INDEBTEDNESS NOT TO EXCEED $230,000,000



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	PREAMBLE
	 	1	 
	 
	 	 	 	 
	RECITALS
	 	1	 
	 
	 	 	 	 
	AGREEMENT
	 	2	 
	 
	 	 	 	 
	ARTICLE I.

	 
	 	 	 	 
	DEFINITIONS AND INTERPRETATION

	 
	 	 	 	 
	SECTION 1.1. Definitions
	 	2	 
	SECTION 1.2. Interpretation
	 	8	 
	SECTION 1.3. Resolution of Drafting Ambiguities
	 	9	 
	 
	 	 	 	 
	ARTICLE II.

	 
	 	 	 	 
	GRANTS AND SECURED OBLIGATIONS

	 
	 	 	 	 
	SECTION 2.1. Grant of Mortgaged Property
	 	9	 
	SECTION 2.2. Assignment of Leases and Rents
	 	10	 
	SECTION 2.3. Secured Obligations
	 	10	 
	SECTION 2.4. No Release
	 	12	 
	 
	 	 	 	 
	ARTICLE III.

	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES OF MORTGAGOR

	 
	 	 	 	 
	SECTION 3.1. Due Authorization and Execution
	 	12	 
	SECTION 3.2. Warranty of Title
	 	12	 
	SECTION 3.3. Condition of Mortgaged Property
	 	13	 
	SECTION 3.4. Leases
	 	14	 
	SECTION 3.5. Charges
	 	14	 
	SECTION 3.6. Benefit to the Mortgagor
	 	15	 
	SECTION 3.7. Insurance
	 	15	 
	SECTION 3.8. Environmental
	 	15	 






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	 	 	Page	 
	ARTICLE IV.

	 
	 	 	 	 
	CERTAIN COVENANTS OF MORTGAGOR

	 
	 	 	 	 
	SECTION 4.1. Payment
	 	16	 
	SECTION 4.2. Title
	 	16	 
	SECTION 4.3. Maintenance and Use of Mortgaged Property; Alterations
	 	17	 
	SECTION 4.4. Notices Regarding Certain Defaults
	 	19	 
	SECTION 4.5. Access to Mortgaged Property, Books and Records; Other
Information
	 	19	 
	SECTION 4.6. Limitation on Liens; Transfer Restrictions
	 	19	 
	SECTION 4.7. Environmental
	 	19	 
	 
	 	 	 	 
	ARTICLE V.

	 
	 	 	 	 
	CONCERNING ASSIGNMENT OF LEASES AND RENTS

	 
	 	 	 	 
	SECTION 5.1. Present Assignment; License to the Mortgagor
	 	19	 
	SECTION 5.2. Collection of Rents by the Mortgagee
	 	20	 
	SECTION 5.3. No Release
	 	21	 
	SECTION 5.4. Irrevocable Interest
	 	21	 
	SECTION 5.5. Amendment to Leases
	 	21	 
	 
	 	 	 	 
	ARTICLE VI.
	 
	 	 	 	 
	TAXES AND CERTAIN STATUTORY LIENS

	 
	 	 	 	 
	SECTION 6.1. Payment of Charges
	 	21	 
	SECTION 6.2. Stamp and Other Taxes
	 	21	 
	SECTION 6.3. Certain Tax Law Changes
	 	22	 
	SECTION 6.4. Proceeds of Tax Claim
	 	22	 
	 
	 	 	 	 
	ARTICLE VII.

	 
	 	 	 	 
	CONTESTING OF PAYMENTS

	 
	 	 	 	 
	SECTION 7.1. Contesting of Taxes and Certain Statutory Liens
	 	22	 
	 
	 	 	 	 
	ARTICLE VIII.
	 
	 	 	 	 
	DESTRUCTION, CONDEMNATION AND RESTORATION

	 
	 	 	 	 
	SECTION 8.1. Destruction and Restoration
	 	23	 
	SECTION 8.2. Condemnation
	 	23	 






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	 	 	Page	 
	SECTION 8.3. Availability of Proceeds
	 	23	 
	 
	 	 	 	 
	ARTICLE IX.

	 
	 	 	 	 
	EVENT OF DEFAULT AND REMEDIES

	 
	 	 	 	 
	SECTION 9.1. Events of Default
	 	23	 
	SECTION 9.2. Remedies in Case of an Event of Default
	 	23	 
	SECTION 9.3. Sale of Mortgaged Property if Event of Default Occurs; Proceeds
of Sale
	 	24	 
	SECTION 9.4. Additional Remedies in Case of an Event of Default
	 	26	 
	SECTION 9.5. Legal Proceedings After an Event of Default
	 	27	 
	SECTION 9.6. Remedies Not Exclusive
	 	28	 
	SECTION 9.7. Costs of Enforcement
	 	29	 
	 
	 	 	 	 
	ARTICLE X.

	 
	 	 	 	 
	SECURITY AGREEMENT AND FIXTURE FILING

	 
	 	 	 	 
	SECTION 10.1. Security Agreement
	 	29	 
	SECTION 10.2. Fixture Filing
	 	29	 
	 
	 	 	 	 
	ARTICLE XI.

	 
	 	 	 	 
	FURTHER ASSURANCES

	 
	 	 	 	 
	SECTION 11.1. Recording Documentation To Assure Security
	 	30	 
	SECTION 11.2. Further Acts
	 	30	 
	SECTION 11.3. Additional Security
	 	31	 
	 
	 	 	 	 
	ARTICLE XII.

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	SECTION 12.1. Covenants To Run with the Land
	 	31	 
	SECTION 12.2. Environmental Indemnity
	 	31	 
	SECTION 12.3. No Merger
	 	32	 
	SECTION 12.4. Secured Obligations to Include Judgments; Other Collateral
	 	32	 
	SECTION 12.5. Concerning Mortgagee
	 	33	 
	SECTION 12.6. Mortgagee May Perform; Mortgagee Appointed Attorney-in-Fact
	 	34	 
	SECTION 12.7. Continuing Security Interest; Assignment
	 	34	 
	SECTION 12.8. Termination; Release
	 	35	 
	SECTION 12.9. Modification in Writing
	 	35	 






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	 	 	Page	 
	SECTION 12.10. Notices
	 	35	 
	SECTION 12.11. GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL
	 	36	 
	SECTION 12.12. Severability of Provisions
	 	36	 
	SECTION 12.13. Limitation on Interest Payable
	 	37	 
	SECTION 12.14. Business Days
	 	37	 
	SECTION 12.15. Relationship
	 	37	 
	SECTION 12.16. Waiver of Stay
	 	37	 
	SECTION 12.17. No Credit for Payment of Taxes or Impositions
	 	38	 
	SECTION 12.18. No Claims Against the Mortgagee
	 	38	 
	SECTION 12.19. Obligations Absolute
	 	38	 
	SECTION 12.20. Mortgagee’s Right To Sever Indebtedness
	 	39	 
	SECTION 12.21. Multi-Site Real Estate Transaction
	 	40	 
	 
	 	 	 	 
	ARTICLE XIII.

	 
	 	 	 	 
	STATE OF OHIO PROVISIONS

	 
	 	 	 	 
	SECTION 13.1. Open-End Mortgage
	 	41	 
	SECTION 13.2. Mechanics’ Lien Law
	 	41	 
	 
	 	 	 	 
	SIGNATURE
	 	 	 	 
	 
	 	 	 	 
	ACKNOWLEDGMENT
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE A Legal Description
	 	 	 	 
	SCHEDULE B Leases
	 	 	 	 











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OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY

AGREEMENT AND FIXTURE FILING




     OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this
“Mortgage”), executed as of April 5, 2010 and dated and effective as of April 7, 2010 (the
“Effective Date”), made by MASON FAMILY RESORTS, LLC, a Delaware limited liability company,
having an office at c/o Great Wolf Resorts, Inc., 122 West Washington Avenue, Suite 600, Madison,
Wisconsin 53703, as mortgagor, assignor and debtor (in such capacities and together with any
successors in such capacities, the “Mortgagor”), in favor of U.S. BANK NATIONAL
ASSOCIATION, having an office at 60 Livingston Avenue, EP-MN-WS3C, St. Paul, Minnesota 55107-2292,
in its capacity as Collateral Agent (as hereinafter defined) for the Secured Parties (as
hereinafter defined), as mortgagee, assignee and secured party (in such capacities and together
with any successors in such capacities, the “Mortgagee”).



R
E C I T A L S :




          A. Pursuant to that certain Indenture, dated as of the Effective Date (as it may be amended,
supplemented, amended and restated or otherwise modified from time to time, the
“Indenture”) entered into by and among GWR Operating Partnership, L.L.L.P., a Delaware
limited liability limited partnership, and Great Wolf Finance Corp., a Delaware corporation
(collectively, the “Co-Issuers”), the guarantors party thereto from time to time, including
Mortgagor, and Trustee, the Co-Issuers have issued 10.875% First Mortgage Notes due 2017 in an
aggregate principal amount of $230,000,000 (the “Notes”).




          B. Mortgagor is the legal and/or beneficial owner of the Mortgaged Property (as hereinafter
defined).




          C. In consideration of the issuance of the Notes, Mortgagor has agreed to secure the Secured
Obligations (as hereinafter defined).




          D. Pursuant to the Indenture, Mortgagor has guaranteed the payment and performance of the
Notes and other obligations of the Obligors (as described below) under the Notes Documents (as
hereinafter defined).




          E. Mortgagor has determined that its execution, delivery and performance hereof, of the
Indenture and the other documents executed in connection herewith directly benefit Mortgagor and
are within the authorized purposes and best interests of Mortgagor.




          F. This Mortgage is given by the Mortgagor in favor of the Mortgagee for its benefit and the
benefit of the other Secured Parties to secure the payment and performance of all of the Secured
Obligations and is intended to be a first priority lien on and security interest in the Mortgaged
Property, subject to Permitted Collateral Liens (as hereinafter defined).




 









 





A G R E E M E N T :




          NOW THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagor hereby
covenants and agrees with the Mortgagee as follows:




ARTICLE I.




DEFINITIONS AND INTERPRETATION



          SECTION 1.1. Definitions. (a) Capitalized terms used but not otherwise defined herein that are defined in the Indenture
shall have the meanings given to them in the Indenture, including the following:




          (b) The following terms in this Mortgage shall have the following meanings:




          “Affiliate” shall have the meaning assigned to such term in the Indenture.




          “Allocated Indebtedness” shall have the meaning assigned to such term in Section
12.20(i) hereof.




          “Allocation Notice” shall have the meaning assigned to such term in Section
12.20(i) hereof.




          “Alterations” shall mean any and all alterations, installations, improvements,
additions, modifications or changes, in each case of a structural nature.




          “Bankruptcy Code” shall have the meaning assigned to such term in Section
5.1(ii) hereof.




          “Business Day” shall have the meaning assigned to such term in the Indenture.




          “Charges” shall mean any and all real estate, property and other taxes, assessments
and special assessments, levies, fees, all water and sewer rents and charges and all other
governmental charges imposed upon or assessed against, and all claims for sums that have become due
and payable (including, without limitation, claims for landlords’, carriers’, mechanics’,
workmens’, repairmens’, laborers’, materialmens’, suppliers’ and warehousemens’ Liens and other
claims arising by operation of law) against, all or any portion of the Mortgaged Property, and that
by law have or will become a Lien on the Mortgaged Property.




          “Collateral Agent” shall have the meaning assigned to such term in the Indenture.




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          “Condemnation Awards” shall mean all of Mortgagor’s right, title and interest in and
to any awards, damages, remunerations, reimbursements, settlements or compensation hereafter made
by any governmental authority pertaining to the Land, Improvements, Fixtures or other Mortgaged
Property, including awards resulting from condemnation proceedings for the total or partial taking
of the Land.




          “Default Rate” shall mean a rate of interest equal to the then applicable interest
rate on the Notes (to the extent lawful).




          “Destruction” shall mean any loss of or damage to the Premises as a result of fire or
casualty or destruction of the Premises.




          “Environmental Laws” shall mean all applicable former, current and future federal,
state, local and foreign laws (including common law), treaties, regulations, rules, ordinances,
codes, decrees, judgments, directives, orders (including consent orders), and agreements in each
case, relating to protection of the environment, natural resources, human health and safety or the
presence, Release (as hereinafter defined) of, threatened Release, or exposure to, Hazardous
Materials (as hereinafter defined), or the generation, manufacture, processing, distribution, use,
treatment, storage, transport, recycling or handling of, or the arrangement for such activities
with respect to, Hazardous Materials.




          “Fixtures” shall mean all machinery, apparatus, equipment, fittings, fixtures,
improvements and articles of personal property of every kind, description and nature whatsoever now
or hereafter attached or affixed to the Land or any other Improvement used in connection with the
use and enjoyment of the Land or any other Improvement or the maintenance or preservation thereof,
which by the nature of their location thereon or attachment thereto are fixtures under the UCC or
any other applicable law including, without limitation, all building materials, screens, awnings,
shades, blinds, curtains, draperies, carpets, rugs, furniture and furnishings, utility systems,
fire sprinkler and security systems, drainage facilities, lighting facilities, all water, sanitary
and storm sewer, drainage, electricity, steam, gas, telephone and other utility equipment and
facilities, stoves, ovens, refrigerators, freezers, ranges, vacuum cleaning systems, call systems,
pipes, fittings, HVAC equipment, boilers, electronic data processing, telecommunications or
computer equipment, refrigeration, electronic monitoring, water, heating or lighting systems,
power, sanitation, waste removal, elevators, maintenance or other systems or equipment and other
items of every kind and description now or hereafter attached to or located on the Land which by
the nature of their location thereon or attachment thereto are real property under applicable law.




          “GAAP” shall have the meaning assigned to such term in the Indenture.




          “Governmental Authority” shall mean any nation or government, any state or other
political subdivision thereof or any entity exercising executive, legislative, judicial,






-3-









 







regulatory or administrative functions of or pertaining to government, having jurisdiction
over the Mortgagor or the Mortgaged Property or any portion thereof.




          “Guarantors” shall have the meaning assigned to such term in the Security Agreement.




          “Hazardous Materials” shall mean any petroleum (including crude oil or fraction
thereof) or petroleum products or byproducts, or any pollutant, contaminant, chemical, compound,
constituent, or hazardous, toxic or other substances, materials or wastes defined, or regulated as
such by, or pursuant to, any Environmental Law, or requires removal, remediation or reporting under
any Environmental Law, including asbestos, or asbestos containing material, radon or other
radioactive material, polychlorinated biphenyls urea formaldehyde insulation, and mold.




          “Improvements” shall mean all buildings, structures and other improvements of every
kind or description and any and all Alterations now or hereafter located, attached or erected on
the Land, including, without limitation, (i) all Fixtures, (ii) all attachments, railroad tracks,
foundations, sidewalks, drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer
rights, drainage, parking areas, driveways, fences and walls and (iii) all materials now or
hereafter located on the Land intended for the construction, reconstruction, repair, replacement,
alteration, addition or improvement of or to such buildings, Fixtures, structures and improvements,
all of which materials shall be deemed to be part of the Improvements immediately upon delivery
thereof on the Land and to be part of the Improvements immediately upon their incorporation
therein.




          “Indenture” shall have the meaning assigned to such term in Recital A hereof.




          “Insurance Certificate” shall mean a certificate evidencing the Insurance Requirements
in form and substance reasonably satisfactory to the Mortgagee.




          “Insurance Policies” means the insurance policies and coverages required to be
maintained by the Mortgagor with respect to the Mortgaged Property pursuant to the Insurance
Requirements.




          “Insurance Receipts” shall mean all insurance policies, unearned premiums therefor and
proceeds from such policies covering any of the Mortgaged Property now or hereafter acquired by
Mortgagor.




          “Insurance Requirements” shall mean the insurance requirements set forth in
Section 4.3(iv) hereof.




          “Land” shall mean the land described in Schedule A annexed to this Mortgage,
together with all of the Mortgagor’s rights in and to any and all easements, rights-of-way, strips
and gores of land, waters, water courses, water rights, mineral, gas and oil rights and all rights
of






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access to or for power, air, light, ingress and egress by pedestrians and motor vehicles to
parking facilities on or within the Land and other rights, estates, titles, interests, privileges,
liberties, servitudes, licenses, tenements, hereditaments and appurtenances whatsoever, in any way
(and in each case) belonging, relating or appertaining thereto, or any part thereof, or which
hereafter shall in any way belong, relate or be appurtenant thereto.




          “Landlord” shall mean any landlord, lessor, licensor or grantor, as applicable.




          “Leases” shall mean, collectively, any and all interests of the Mortgagor, as
Landlord, in all leases and subleases of space, tenancies, licenses, occupancy or concession
agreements now existing or hereafter entered into, whether or not of record, relating in any manner
to space at the Premises and any and all amendments, modifications, supplements, replacements,
extensions and renewals of any thereof, whether now in effect or hereafter coming into effect.




          “Liabilities” shall have the meaning assigned to such term in Section 12.2
hereof.




          “Lien” shall have the meaning assigned to such term in the Indenture.




          “Losses” shall mean any and all losses, claims, damages, liabilities and related
expenses, including reasonable attorneys’ fees, charges and disbursements.




          “Material Adverse Effect” shall mean any circumstance, event, occurrence, or effect
that has or would reasonably be expected to have an effect that is materially adverse to the
business, assets, operations and condition of the Principal Properties, taken as a whole.




          “Mortgage” shall have the meaning assigned to such term in the Preamble hereof.




          “Mortgaged Property” shall have the meaning assigned to such term in Section
2.1 hereof.




          “Mortgagee” shall have the meaning assigned to such term in the Preamble hereof.




          “Mortgagor” shall have the meaning assigned to such term in the Preamble hereof.




          “Mortgagor’s Interest” shall have the meaning assigned to such term in Section
2.2 hereof.




          “Notes” shall have the meaning assigned to such term in the Recitals hereto.




          “Notes Documents” shall mean the Indenture, the Notes, this Mortgage, the other
Security Documents and each of the other agreements, documents and instruments executed






-5-









 







pursuant thereto, and any other document or instrument executed or delivered by any Obligor at
any time in connection with any Obligation (as such term is defined in the Indenture) to any
Secured Party, as each may be amended, supplemented, refunded, deferred, restructured, replaced or
refinanced from time to time in whole or in part (whether with the Collateral Agent and holders of
the Notes from time to time or other agents and lenders or otherwise), in each case in accordance
with the provisions of the Security Agreement or this Mortgage, as applicable.




          “Obligors” shall mean the Co-Issuers, Mortgagor and the other Guarantors.




          “Other Collateral” shall have the meaning assigned to such term in Section
12.20(i) hereof.




          “Other Mortgages” shall have the meaning assigned to such term in Section
12.22 hereof.




          “Permit” shall mean any and all permits, certificates, approvals, authorizations,
consents, licenses, variances, franchises or other instruments, however characterized, of any
Governmental Authority (or any person acting on behalf of a Governmental Authority) now or
hereafter acquired or held, together with all amendments, modifications, extensions, renewals and
replacements of any thereof issued or in any way furnished in connection with the Mortgaged
Property including, without limitation, building permits, certificates of occupancy, environmental
certificates, industrial permits or licenses and certificates of operation.




          “Permitted Collateral Liens” shall have the meaning assigned to such term in the
Indenture.




          “Person” shall have the meaning assigned to such term in the Indenture.




          “Premises” shall mean, collectively, the Land and the Improvements.




          “Principal Properties” shall have the meaning assigned to such term in the Indenture.




          “Principal Property Subsidiary” shall have the meaning assigned to such term in the
Indenture.




          “Proceeds” shall mean, collectively, any and all cash proceeds and noncash proceeds of
the Mortgaged Property and shall include all (i) proceeds of the conversion, voluntary or
involuntary, of any of the Mortgaged Property or any portion thereof into cash or liquidated
claims, (ii) proceeds of any insurance, indemnity, warranty, guaranty or claim payable to the
Mortgagee or to the Mortgagor from time to time with respect to any of the Mortgaged Property,
(iii) payments (in any form whatsoever) made or due and payable to the Mortgagor from time to time
in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any
portion of the Mortgaged Property by any Governmental Authority (or






-6-









 







any person acting on behalf of a Governmental Authority), (iv) products of the Mortgaged
Property and (v) other amounts from time to time paid or payable under or in connection with any of
the Mortgaged Property including, without limitation, refunds of real estate taxes and assessments,
including interest thereon, but expressly excluding any Rents.




          “Rents” shall mean, collectively, any and all rents, additional rents, royalties,
cash, guaranties, letters of credit, bonds, sureties or securities deposited under any Lease to
secure performance of the Tenant’s obligations thereunder, revenues, issues, earnings, profits and
income, advance rental payments, payments incident to assignment, sublease or surrender of a Lease,
claims for forfeited deposits and claims for damages, now due or hereafter to become due, with
respect to any Lease, any indemnification against, or reimbursement for, sums paid and costs and
expenses incurred by the Mortgagor under any Lease or otherwise, and any award in the event of the
bankruptcy of any Tenant under or guarantor of a Lease.




          “Release” shall mean any release, spill, seepage, emission, leaking, pumping,
injection, pouring, emptying, deposit, disposal, discharge, dispersal, dumping, escaping, leaching,
or migration into, onto or through the environment or within or upon any building, structure,
facility or fixture.




          “Security Agreement” shall mean that certain Security Agreement dated as of the
Effective Date by and among Mortgagor, Great Wolf Lodge of Grapevine, LLC, a Delaware limited
liability company, Great Wolf Williamsburg SPE, LLC, a Delaware limited liability company, and the
Collateral Agent, as the same may be amended, amended and restated, supplemented or otherwise
modified from time to time.




          “Security Documents” shall mean this Mortgage, the Security Agreement, the guarantees
by the Principal Property Subsidiaries and the other Collateral Documents (as defined in the
Indenture) and any other agreement, document or instrument pursuant to which a Lien is granted
securing any Secured Obligations or under which rights or remedies with respect to such Liens are
governed.




          “Secured Obligations” shall have the meaning assigned to such term in Section
2.3 hereof.




          “Secured Parties” shall mean, collectively, the holders of the Notes from time to
time, the Collateral Agent and the Trustee.




          “Site Assessment” shall mean an environmental engineering report for the Mortgaged
Property prepared by an engineer engaged by the Collateral Agent, at Mortgagor’s expense, and in a
manner reasonably satisfactory to the Collateral Agent, based upon an investigation and appropriate
inquiries, including soil and groundwater sampling, if necessary, concerning the existence of
Hazardous Materials on or about the Mortgaged Property, and the past or present discharge,
disposal, release or escape of any such substances, all consistent with good customary and
commercial practice.







-7-









 








          “Subsidiary” shall have the meaning assigned to such term in the Indenture.




          “Taking” shall mean any taking of the Mortgaged Property or any part thereof, in or by
condemnation or other eminent domain proceedings pursuant to any law, general or special, or by
reason of the temporary requisition of the use or occupancy of the Mortgaged Property or any part
thereof, by any Governmental Authority, civil or military.




          “Tax Refunds” shall mean all property tax refunds payable to Mortgagor.




          “Tenant” shall mean any tenant, lessee, sublessee, licensee or occupant, as
applicable.




          “Trustee” shall have the meaning assigned to such term in the Indenture.




          “UCC” shall mean the Uniform Commercial Code as in effect on the Effective Date in the
jurisdiction in which the Premises are located; provided, however, that if by
reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection
of the security interest in any item or portion of the Mortgaged Property is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the jurisdiction in which the
Premises are located, “UCC” shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.




          SECTION 1.2. Interpretation. In this Mortgage, unless otherwise specified, (i) singular words include the plural and
plural words include the singular, (ii) words importing any gender include the other gender, (iii)
references to any person include such person’s successors and assigns and in the case of an
individual, the word “successors” includes such person’s heirs, devisees, legatees, executors,
administrators and personal representatives, (iv) references to any statute or other law include
all applicable rules, regulations and orders adopted or made thereunder and all statutes or other
laws amending, consolidating or replacing the statute or law referred to, (v) the words “consent,”
“approve” and “agree,” and derivations thereof or words of similar import, mean the prior written
consent, approval or agreement of the person in question, (vi) the words “include” and “including,”
and words of similar import, shall be deemed to be followed by the words “without limitation,”
(vii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import, refer to
this Mortgage in its entirety, (viii) references to Articles, Sections, Schedules, Exhibits,
subsections, paragraphs and clauses are to the Articles, Sections, Schedules, Exhibits,
subsections, paragraphs and clauses hereof, (ix) the Schedules and Exhibits to this Mortgage, in
each case as amended, amended and restated, supplemented or otherwise modified from time to time in
accordance with the provisions hereof, are incorporated herein by reference, (x) the titles and
headings of Articles, Sections, Schedules, Exhibits, subsections, paragraphs and clauses are
inserted as a matter of convenience only and shall not affect the construction of any
provision hereof and (xi) all





-8-









 







obligations of the Mortgagor hereunder shall be satisfied by the
Mortgagor at the Mortgagor’s sole cost and expense.




          SECTION 1.3. Resolution of Drafting Ambiguities. The Mortgagor acknowledges and agrees that it was represented by counsel in connection with the
execution and delivery hereof, that it and its counsel reviewed and participated in the preparation
and negotiation hereof and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party (i.e., Mortgagee) shall not be employed in the interpretation
hereof.




ARTICLE II.




GRANTS AND SECURED OBLIGATIONS



          SECTION 2.1. Grant of Mortgaged Property. The Mortgagor hereby grants, mortgages, bargains, sells, assigns, transfers and conveys to the
Mortgagee, and hereby grants a first priority security interest to Mortgagee in and upon, all of
the Mortgagor’s estate, right, title and interest in, to and under the following property, whether
now owned or held or hereafter acquired from time to time (collectively, the “Mortgaged
Property”):




          (i) Land;




          (ii)
Improvements;




          (iii) Leases;




          (iv) Rents;




          (v) Tax Refunds;




          (vi) Insurance Receipts;




          (vii) Condemnation Awards;




          (viii) Proceeds;





     (ix) any and all extensions, improvements, betterments, renewals, substitutions and
replacements of, and all additions and appurtenances to, the foregoing, hereafter acquired
by, or released to, Mortgagor, or constructed, assembled or placed by Mortgagor or by others
for Mortgagor’s benefit thereon, and all conversions of the security
constituted thereby, which immediately upon such acquisition, release, construction,
assembling, placement or conversion, as the case may be, and in each such case, without



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any
further conveyance, assignment or other act by Mortgagor, shall become subject to the lien
of this Mortgage as fully and completely, to the extent of Mortgagor’s interest therein, and
with the same force and effect, as though now owned by Mortgagor and specifically described
herein; and




     (x) all products and proceeds of any of the foregoing, including all such proceeds
acquired with cash proceeds in whatever form.


TO HAVE AND TO HOLD the Mortgaged Property, together with all estate, right, title and interest of
the Mortgagor and anyone claiming by, through or under the Mortgagor in and to the Mortgaged
Property and all rights and appurtenances relating thereto, unto the Mortgagee, its successors and
assigns, and the other Secured Parties, for the purpose of securing the payment and performance in
full of all the Secured Obligations.




          SECTION 2.2. Assignment of Leases and Rents. Subject to the terms set forth herein, as additional security for the payment and
performance in full of all the Secured Obligations and subject to the provisions of Article
V hereof, the Mortgagor absolutely, presently, unconditionally and irrevocably assigns,
transfers and sets over to the Mortgagee, and grants to the Mortgagee, all of the Mortgagor’s
estate, right, title, interest, claim and demand, as Landlord, under any and all of the Leases
including, without limitation, the following (such assigned rights, the “Mortgagor’s
Interest”):





     (i) the immediate and continuing right to receive and collect Rents payable by the
Tenants pursuant to the Leases;




     (ii) all claims, rights, powers, privileges and remedies of the Mortgagor, whether
provided for in the Leases or arising by statute or at law or in equity or otherwise,
consequent on any failure on the part of any Tenant to perform or comply with any term of
any Lease;




     (iii) all rights to take all actions upon the happening of a default under the Leases
as shall be permitted by the Leases or by law including, without limitation, the
commencement, conduct and consummation of proceedings at law or in equity; and




     (iv) the full power and authority, in the name of the Mortgagor or otherwise, to
enforce, collect, receive and receipt for any and all of the foregoing and to take all other
actions whatsoever which the Mortgagor, as Landlord, is or may be entitled to take under the
Leases.



          SECTION 2.3. Secured Obligations. This Mortgage secures, and the Mortgaged Property is collateral security for, the
performance of the covenants and agreements of Mortgagor and the other Principal Property
Subsidiaries contained in the Indenture, this Mortgage, the other Notes Documents and related
documents, and, among other obligations, the prompt and complete payment and performance in full
when due, whether at stated maturity, by




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required prepayment, declaration, acceleration,
repurchase, redemption, demand or otherwise (including the payment of amounts that would become due
but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Law (and any
successor provision thereof)) of the following:





     (i) all of the obligations and liabilities of the Mortgagor and the other Principal
Property Subsidiaries to the Trustee, the Collateral Agent or any Secured Party, whether
direct or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the Indenture, the
other Notes Documents and related documents to which Mortgagor or such Principal Property
Subsidiary is party, made, delivered or given in connection with any of the foregoing, in
each case whether such obligations and liabilities are on account of principal, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities payable
(including, without limitation, all fees and disbursements of counsel to the Collateral
Agent or to the Secured Parties) that are required to be paid by the Co-Issuers pursuant to
the terms of any of the foregoing agreements;




     (ii) all covenants and agreements, obligations, liabilities and other obligations of
any kind (including, without limitation, principal, interest, fees, reimbursement
obligations, administrative costs and indemnities) of Mortgagor or any other Principal
Property Subsidiary, or combination thereof, now existing or arising in the future from time
to time under or in respect of this Mortgage, the Indenture and the other Notes Documents
and related documents as to which any Principal Property Subsidiary is a party;




     (iii) any and all other amounts, liabilities, and obligations for which or for the
performance of which Mortgagor or any other Principal Property Subsidiary or any combination
thereof is or may become indebted or obligated under the terms of this Mortgage, the
Indenture and the other Notes Documents and related documents to which Mortgagor or any
other Principal Property Subsidiary is a party;




     (iv) any and all renewals, increases, rearrangements, modifications, supplements,
restatements and extensions of the foregoing items of indebtedness and obligations; and




     (v) costs and expenses of collection (including, without limitation, reasonable
attorneys’ fees and expenses), actually incurred by Mortgagee in obtaining performance of,
or in collecting any payments due under, the Indenture and the other Notes Documents and
related documents to which Mortgagor or any of the Principal Property
Subsidiaries is a party, commissions, expenses, charges, reimbursement obligations,
indemnification obligations, reasonable fees and expenses due and payable to any Secured
Party under the Indenture and the other Notes Documents and such related documents.



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          Each and every such indebtedness, liability and obligation of any kind of Mortgagor or any
Principal Property Subsidiary described and included in this Mortgage, whether such item is
absolute or contingent, due or not due, liquidated or unliquidated, arising under or in connection
with the Indenture, this Mortgage and the other Notes Documents or any of them (including, without
limitation, the foregoing) is intended to be fully secured by the liens, assignments, and security
interests created under and by virtue of this Mortgage, and all such items so secured (now or
hereafter existing or arising) plus the other items described in Section 12.4 hereof are
hereinafter collectively referred to herein as the “Secured Obligations.”




          SECTION 2.4. No Release. Nothing set forth in this Mortgage shall relieve the Mortgagor from the performance of any
term, covenant, condition or agreement on the Mortgagor’s part to be performed or observed under or
in respect of any of the Mortgaged Property or from any liability to any person under or in respect
of any of the Mortgaged Property or shall impose any obligation on the Mortgagee or any other
Secured Party to perform or observe any such term, covenant, condition or agreement on the
Mortgagor’s part to be so performed or observed or shall impose any liability on the Mortgagee or
any other Secured Party for any act or omission on the part of the Mortgagor relating thereto or
for any breach of any representation or warranty on the part of the Mortgagor contained in this
Mortgage or any other Notes Document, or under or in respect of the Mortgaged Property or made in
connection herewith or therewith.




ARTICLE III.




REPRESENTATIONS AND WARRANTIES OF MORTGAGOR



          SECTION 3.1. Due Authorization and Execution. The Mortgagor represents and warrants that Mortgagor is a duly formed and validly existing
limited liability company under the law of the state of Delaware and in good standing under the
laws of the state of Delaware and under the laws of the states or commonwealths in which the
Mortgaged Property is located, (ii) Mortgagor has full right, authority and power to enter into
this Mortgage, to consummate the transactions contemplated herein and to perform its obligations
hereunder and under the Notes Documents to which it is a party, (iii) each of the persons executing
this Mortgage on behalf of Mortgagor is authorized to do so, and (iv) this Mortgage constitutes a
valid and legally binding obligation of Mortgagor enforceable against Mortgagor in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors rights generally and subject to
general principles of equity regardless of whether considered in a proceeding in equity or at law.




          SECTION 3.2. Warranty of Title. The Mortgagor represents and warrants as of the Effective Date that:





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     (i) it has good and marketable fee simple title to the Premises and good title to the
interest it owns or holds in each of the Permits, subject to no Liens, except Permitted
Collateral Liens;




     (ii) it has good title to the interest it owns or holds in all other Mortgaged
Property, in each case subject to no Liens, except Permitted Collateral Liens;




     (iii) it does not own, lease or otherwise occupy any real property other than the
Premises and other than any off-site storage or space leases;




     (iv) it is in material compliance with any obligation of the Mortgagor for which
noncompliance would give a third party the right to file a Lien on the Mortgaged Property,
other than a Permitted Collateral Lien; and




     (v) upon proper recordation in the official records in the county (or other applicable
jurisdiction) in which the Premises is located, this Mortgage will create and constitute a
valid and enforceable (subject to the exceptions set forth in Section 3.1(iv) above)
first priority Lien on the Mortgaged Property in favor of the Mortgagee for the benefit of
the Secured Parties, and, to the extent any of the Mortgaged Property shall consist of
Fixtures, a first priority security interest in the Fixtures, which first priority Lien and
first priority security interest are subject only to Permitted Collateral Liens.



          SECTION 3.3. Condition of Mortgaged Property. The Mortgagor represents and warrants that as of the Effective Date:





     (i) there has been issued and there remains in full force and effect subject to no
revocation, suspension, forfeiture or modification, each and every Permit necessary for the
present and contemplated use, operation and occupancy of the Premises by the Mortgagor and
its Tenants, except to the extent the failure to maintain any Permit would not have a
Material Adverse Effect;




     (ii) the Premises and the present and contemplated use and occupancy thereof comply
with all applicable zoning ordinances, building codes, land use laws, setback or
other development and use requirements of Governmental Authorities and with all private
restrictions and agreements affecting the Mortgaged Property whether or not recorded, except
to the extent that the failure to comply would not have a Material Adverse Effect;




     (iii) the Premises are served by all utilities (including, without limitation, public
water and sewer systems) necessary for the present use thereof;




     (iv) the Mortgagor has not received notice of any Taking or the commencement or
pendency of any action or proceeding therefor;



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     (v) there has not occurred any Destruction of the Premises or any portion thereof which
has not previously been repaired or replaced;




     (vi) to its knowledge there are no disputes regarding boundary lines, location,
encroachments or possession of any portions of the Mortgaged Property, which disputes, if
determined adversely to Mortgagor, would have a Material Adverse Effect;




     (vii) no portion of the Premises is located in an area identified by the Federal
Emergency Management Agency as an area having special flood hazards pursuant to the Flood
Insurance Acts or, if any portion of the Improvements located on the Premises is located
within such area, the Mortgagor has obtained flood insurance;




     (viii) the Premises are assessed for real estate tax purposes as one or more wholly
independent tax lot or lots, separate from any adjoining land or improvements not
constituting a portion of such lot or lots, and no other land or improvement is assessed and
taxed together with the Premises or any portion thereof; and




     (ix) Mortgagor has not granted any options or rights of first refusal to purchase or
acquire all or any portion of the Mortgaged Property.



          SECTION 3.4. Leases. The Mortgagor represents and warrants that as of the Effective Date:





     (i) there are no Leases affecting the Premises as of the Effective Date, except as
identified on Schedule B annexed to this Mortgage;




     (ii) true copies of such Leases have been previously delivered to the Mortgagee;




     (iii) the Mortgagor is the sole owner of all of the landlord’s interest in such Leases;




     (iv) to Mortgagor’s knowledge, there is no default under any Lease and there is
existing no condition which with the giving of notice or passage of time or both would cause
a default thereunder, except, in each case to the extent such default or potential default
would not have a Material Adverse Effect; and




     (v) no Lease contains any option to purchase, right of first refusal to purchase, or
any other similar provision.



          SECTION 3.5. Charges. The Mortgagor represents and warrants that all Charges imposed upon or assessed against the
Mortgaged Property have been paid and discharged except to the extent such Charges constitute
Permitted Collateral Liens or to the extent such Charges are being diligently contested in
accordance with Article VII.




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          SECTION 3.6. Benefit to the Mortgagor. The Mortgagor represents and warrants that it will receive substantial benefit as a result
of the execution, delivery, and performance of the Notes Documents.




          SECTION 3.7. Insurance. The Mortgagor represents and warrants that (i) the Premises and the use, occupancy and
operation thereof comply with all Insurance Requirements, except where the failure to comply would
not have a Material Adverse Effect, and there exists no default under any Insurance Requirement
that is reasonably likely to result in the cancellation of such Insurance Policy, (ii) all premiums
due and payable with respect to the Insurance Policies have been paid, (iii) all Insurance Policies
are in full force and effect and the Mortgagor has not received notice of violation or cancellation
thereof, (iv) all Insurance Policies or Insurance Certificates have been delivered to Mortgagee,
and (v) the Premises are insured in accordance with the Insurance Requirements.




          SECTION 3.8. Environmental. (A) The Mortgagor represents and warrants that:





     (i) Mortgagor has obtained all Permits which are necessary with respect to the
ownership and lawful operation of the Mortgaged Property under any and all applicable
Environmental Laws, except to the extent that the failure to maintain any such Permit would
not have a Material Adverse Effect;




     (ii) Mortgagor is in compliance with all terms and conditions of Environmental Laws,
except to the extent that the failure to comply would not have a Material Adverse Effect;




     (iii) To Mortgagor’s knowledge, there are no Hazardous Materials located on, above or
below the surface of the Mortgaged Property or contained in the soil or water constituting
such Mortgaged Property (except those that are in compliance with all Environmental Laws or
where the presence of which would not have a Material Adverse Effect);




     (iv) To Mortgagor’s knowledge, no material Release of Hazardous Materials has occurred
on, upon or from such Mortgaged Property which have not been remediated in accordance with
applicable law, except to the extent the same would not have a Material Adverse Effect;




     (v) To Mortgagor’s knowledge, the Mortgaged Property has not been used as a landfill or
waste disposal site; and




     (vi) the Mortgaged Property is being owned, occupied and operated by Mortgagor in
compliance with all Environmental Laws (except to the extent that the failure to comply
would not have a Material Adverse Effect), there are no material breaches thereof (except to
the extent that any such breach would not have a Material



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Adverse Effect) and no enforcement
actions in respect thereof are pending or, to Mortgagor’s knowledge, threatened against
Mortgagor which, in any case, would be reasonably likely to materially and adversely affect
Mortgagor’s ability to perform its obligations under the Notes Documents or otherwise
materially impair the value of any Mortgaged Property.




     Notwithstanding the foregoing, Mortgagor makes no representation or warranty in (i) —
(vi) above with respect to any matters existing at the Mortgaged Property as of the date(s)
of the environmental report(s) delivered to Mortgagee with respect to the Mortgaged
Property.




     (B) Mortgagor represents and warrants that to its knowledge no adverse change has
occurred with respect to any of the matters identified in the environmental report(s)
delivered to Mortgagee with respect to the Mortgaged Property, except for changes which,
individually or in the aggregate, would not have a Material Adverse Effect.



ARTICLE IV.




CERTAIN COVENANTS OF MORTGAGOR



          SECTION 4.1. Payment. The Mortgagor shall pay as and when the same shall become due, whether at its stated maturity,
by acceleration or otherwise, each and every amount payable by the Mortgagor in respect of the
Secured Obligations.




          SECTION 4.2. Title. The Mortgagor shall





     (i) Except as permitted under the Indenture (A) keep in effect all rights and
appurtenances to or that constitute a part of the Mortgaged Property and (B) protect,
preserve and defend its interest in the Mortgaged Property and title thereto (subject in
each case to Permitted Collateral Liens);




     (ii) (A) forever warrant and defend to the Mortgagee the Lien and security interests
created and evidenced hereby and the validity and priority hereof in any action or
proceeding against the claims of any and all persons whomsoever affecting or purporting to
affect the Mortgaged Property or any of the rights of the Mortgagee hereunder (other than
Permitted Collateral Liens) and (B) maintain a valid and enforceable first priority Lien on
the Mortgaged Property and, to the extent any of the Mortgaged Property shall consist of
Fixtures, a first priority security interest in the Fixtures, which first priority Lien and
security interest shall be subject only to Permitted Collateral Liens; and



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     (iii) promptly upon obtaining knowledge of the pendency of any proceedings for the
eviction of the Mortgagor from the Mortgaged Property or any part thereof by paramount title
or otherwise questioning the Mortgagor’s right, title and interest in, to and under the
Mortgaged Property as warranted in this Mortgage, or of any condition that is reasonably
likely to give rise to any such proceedings, notify the Mortgagee thereof. The Mortgagee
may participate in such proceedings and the Mortgagor will deliver or cause to be delivered
to the Mortgagee all instruments reasonably requested by the Mortgagee to permit such
participation. In any such proceedings, the Mortgagee may be represented by counsel
satisfactory to the Mortgagee at the reasonable expense of the Mortgagor. If, upon the
resolution of such proceedings, the Mortgagor shall suffer a loss of the Mortgaged Property
or any part thereof or interest therein and title insurance proceeds shall be payable in
connection therewith, such proceeds are hereby assigned to and shall be paid to the
Mortgagee to be applied to the payment of the Secured Obligations.



          SECTION 4.3. Maintenance and Use of Mortgaged Property.





     (i) Maintenance of Premises. The Mortgagor will use reasonable efforts to
maintain, preserve, protect and keep the Premises in good repair, working order and
condition (normal wear and tear and damage from casualty excepted), and make necessary
and proper repairs, renewals and replacements, in each case in a good and workmanlike
manner, so that its business carried on in connection therewith may be properly conducted,
and to the extent failure to do so would have a Material Adverse Effect. Mortgagor shall
use reasonable efforts not to (x) commit any act, or (y) suffer or permit any condition to
exist, in or upon the Mortgaged Property in violation of any law, covenant, condition or
restriction now, or hereafter, affecting the Mortgaged Property (including any which require
alteration or improvement thereof), except to the extent such violation would not have a
Material Adverse Effect. Mortgagor shall not drill or extract or enter into any lease for
the drilling for or extraction of oil, gas or other hydrocarbon substances or any mineral of
any kind of character on or from the Mortgaged Property or any part thereof which is likely
to have a materially adverse impact upon the Mortgaged Property.




     (ii) Permits. The Mortgagor shall use its reasonable efforts to maintain, or
cause to be maintained, in full force and effect all Permits to the extent contemplated by
Section 3.3(i) hereof, except to the extent failure to do so would not have a
Material Adverse Effect. Unless and to the extent contested by the Mortgagor in accordance
with the provisions of Article VII hereof, the Mortgagor shall use its reasonable
efforts to comply with all requirements set forth in the Permits and all requirements of law
applicable to all or any portion of the Mortgaged Property or the condition, use or
occupancy of all or any portion thereof or any recorded deed of restriction, declaration,
covenant running with the land or otherwise, now or hereafter in force, in each case



-17-









 







except
where the failure to comply singly or in the aggregate would not have a Material Adverse
Effect.




     (iii) Zoning. The Mortgagor shall not initiate, join in or consent to any
change in the zoning or any other permitted use classification of the Premises, which would
prohibit use of the Premises for its current use.




     (iv) Insurance. Mortgagor will maintain or cause to be maintained, with
financially sound and reputable (in each case, in the judgment of the Mortgagor) insurers,
such public liability insurance, third party property damage insurance, business
interruption insurance and casualty insurance with respect to liabilities, losses or damage
in respect of the Mortgaged Property as may customarily be carried or maintained under
similar circumstances by Persons of established reputation engaged in similar businesses, in
each case in such amounts (giving effect to self insurance), with such deductibles, covering
such risks and otherwise on such terms and conditions as shall be customary for such
Persons. Mortgagor shall operate its business and the Premises in compliance with all
provisions of such policies, all requirements of the issuers of such policies, and all
orders, rules, regulations and any other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions) binding upon the Mortgagor and
applicable to the Mortgaged Property or any use or condition thereof,
except to the extent that such non-compliance would not have a Material Adverse Effect.
Without limiting the generality of the foregoing, Mortgagor will maintain or cause to be
maintained (a) flood insurance with respect to the Mortgaged Property if located in an area
designated by the Federal Emergency Management Agency as having special flood or mud slide
hazards, and which area is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board
of Governors of the United States Federal Reserve System (or any successor thereto), (b)
replacement value casualty insurance on the Mortgaged Property under such policies of
insurance, with such insurance companies, in such amounts on an “all-risk” basis, with such
deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses, and (c)
public liability insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties owned, occupied or
controlled by them, in a prudent manner, with (except for self insurance) financially sound
and reputable (in each case, in the judgment of Mortgagor) insurers or with the government
of the United States of America or an agency or instrumentality thereof, in such amounts,
with such deductibles, and by such methods as shall be customary, in the reasonable, good
faith opinion of Mortgagor, and adequate and appropriate for the conduct of the business of
the Mortgagor and its subsidiaries in a prudent manner for entities similarly situated in
the industry. Each such policy of insurance shall name the Collateral Agent, on behalf of
the Secured Parties, as an additional insured thereunder as its interests may appear and



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provide for at least 30 days’ prior written notice to the Collateral Agent of any
modification or cancellation of such policy.




For the avoidance of doubt, the Mortgagee will have no liability or responsibility to
maintain, pay premiums on, or have any liability or responsibility in connection with, any
such insurance policy or policies.



          SECTION 4.4. Notices Regarding Certain Defaults. The Mortgagor shall, promptly upon receipt of any written notice regarding the failure to
discharge any of the Mortgagor’s obligations with respect to the Mortgaged Property or any portion
thereof described in Sections 4.2(ii)(B), 4.3(iv) and 4.7, furnish a copy
of such notice to the Mortgagee.




          SECTION 4.5. Access to Mortgaged Property, Books and Records; Other Information. Upon reasonable prior notice to the Mortgagor, the Mortgagee, its agents, accountants and
attorneys shall have access to visit and inspect the Mortgaged Property, at reasonable times and
accompanied by a representative of Mortgagor and subject to the rights of any tenants or other
occupants of the Mortgaged Property.




          SECTION 4.6. Limitation on Liens; Transfer Restrictions.





          (i) Except for the Permitted Collateral Liens and the Lien of this Mortgage and the other
Security Documents, the Mortgagor may not, without the prior written consent of the Mortgagee,
permit to exist or grant any Lien on all or any part of the Mortgaged Property or suffer or allow
any of the foregoing to occur by operation of law or otherwise.




          (ii) Except to the extent permitted in the Indenture, the Mortgagor may not, without the prior
written consent of the Mortgagee, sell, convey, assign, mortgage, lease, pledge or otherwise
transfer all or any part of the Mortgaged Property.



          SECTION 4.7. Environmental. Mortgagor shall use its reasonable efforts to comply with all applicable Environmental
Laws, except where the failure to comply would not have a Material Adverse Effect.




ARTICLE V.




CONCERNING ASSIGNMENT OF LEASES AND RENTS



          SECTION 5.1. Present Assignment; License to the Mortgagor.




          (i) Section 2.2 of this Mortgage constitutes a present, absolute, effective,
irrevocable and complete assignment by Mortgagor to Mortgagee of the Leases and Rents and




-19-









 




the
right, subject to applicable law, to collect all sums payable to Mortgagor thereunder and apply the
same after payment of any costs and expenses arising under Section 12.6 of this Mortgage in
accordance with Section 9.3(iii) of this Mortgage, which is not conditioned upon Mortgagee
being in possession of the Premises. The Mortgagee hereby grants to the Mortgagor, however, a
license to collect, receive, use, retain and apply the Rents and to enforce the obligations of
Tenants under the Leases. Upon the occurrence of and during the continuance of any Event of
Default, the license granted in the immediately preceding sentence shall cease and terminate,
provided however that if the Event of Default is cured by Mortgagor or waived in
writing by Mortgagee, the license granted to Mortgagor will thereupon be reinstated.




          (ii) Mortgagor acknowledges that Mortgagee has taken all reasonable actions necessary to
obtain, and that upon recordation of this Mortgage, Mortgagee shall have, to the
extent permitted under applicable law, a valid and fully perfected, first priority, present
assignment of the Rents arising out of the Leases and all security for such Leases subject to the
Permitted Collateral Liens and in the case of security deposits, rights of depositors and
requirements of law. Mortgagor acknowledges and agrees that upon recordation of this Mortgage,
Mortgagee’s interest in the Rents shall be deemed to be fully perfected, “choate” and enforced as
to Mortgagor and all third parties, including, without limitation, any subsequently appointed
trustee in any case under Title 11 of the United States Code (the “Bankruptcy Code”),
without the necessity of commencing a foreclosure action with respect to this Mortgage, making
formal demand for the Rents, obtaining the appointment of a receiver or taking any other
affirmative action.




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




          SECTION 5.2. Collection of Rents by the Mortgagee.





     (i) Any Rents received by the Mortgagee hereunder, after payment of all proper costs
and expenses arising under Section 12.4 of this Mortgage, shall be applied in
accordance with the provisions of Section 9.3(iii) of this Mortgage. The Mortgagee
shall be accountable to the Mortgagor only for Rents actually received by the Mortgagee.
The collection of such Rents and the application thereof shall not cure or waive any Event
of Default or waive, modify or affect notice of Event of Default or invalidate any act done
pursuant to any such notice.




     (ii) The Mortgagor hereby authorizes and directs the tenant under each Lease, upon the
occurrence of and during the continuance of any Event of Default, to rely upon and comply
with any and all notices or demands from the Mortgagee for payment of



-20-









 







Rents to the Mortgagee
and the Mortgagor shall have no claim against such tenant for Rents paid by such tenant to
the Mortgagee pursuant to such notice or demand.



          SECTION 5.3. No Release. Neither this Mortgage nor any action or inaction on the part of the Mortgagee shall release
any tenant under any Lease, any guarantor of any Lease or the Mortgagor from any of their
respective obligations under such Leases or constitute an assumption of any such obligation on the
part of the Mortgagee. No action or failure to act on the part of the Mortgagor shall adversely
affect or limit the rights of the Mortgagee under this Mortgage or, through this Mortgage, under
such Leases. Nothing contained herein shall operate or be construed to (i)
obligate the Mortgagee to perform any of the terms, covenants or conditions contained in any
Lease or otherwise to impose any obligation upon the Mortgagee with respect to such Lease
(including, without limitation, any obligation arising out of any covenant of quiet enjoyment
contained in such Lease in the event that the tenant under such Lease shall have been joined as a
party defendant in any action by which the estate of such tenant shall be terminated) or (ii) place
upon the Mortgagee any responsibility for the operation, control, care, management or repair of the
Premises, except for any liability arising solely out of its gross negligence or willful
misconduct.




          SECTION 5.4. Irrevocable Interest. All rights, powers and privileges of the Mortgagee herein set forth are coupled with an
interest and are irrevocable, subject to the terms and conditions hereof.




          SECTION 5.5. Amendment to Leases. Each Lease, including, without limitation, all amendments, modifications, supplements,
replacements, extensions and renewals thereof, shall continue to be subject to the provisions
hereof without the necessity of any further act by any of the parties hereto.




ARTICLE VI.




TAXES AND CERTAIN STATUTORY LIENS



          SECTION 6.1. Payment of Charges. Unless and to the extent contested in accordance with the provisions of Article VII
hereof, the Mortgagor shall pay and discharge, or cause to be paid and discharged, from time to
time prior to same becoming delinquent, all Charges, and prepare, execute and file any form
required to be prepared, executed and filed in connection therewith.




          SECTION 6.2. Stamp and Other Taxes. Unless and to the extent contested by the Mortgagor in accordance with the provisions of
Article VII hereof, the Mortgagor shall pay any United States, state and local documentary
stamp taxes, with interest and fines and penalties, and any mortgage recording taxes, with interest
and fines and penalties, that may hereafter be




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levied, imposed or assessed under or upon or by
reason hereof or the Secured Obligations or any instrument or transaction affecting or relating to
either thereof and in default thereof the Mortgagee may advance the same and the amount so advanced
shall accrue interest at the Default Rate and be payable by the Mortgagor to the Mortgagee.




          SECTION 6.3. Certain Tax Law Changes. In the event of the passage after the Effective Date of any law deducting from the value of
real property, for the purpose of taxation, amounts in respect of any Lien thereon or changing in
any way the laws for the taxation of mortgages or debts secured by mortgages for state or local
purposes or the manner of the collection of any taxes, and imposing any taxes, either directly or
indirectly, on this Mortgage, the Mortgagor shall pay such taxes in accordance with Section
7.1 or if such taxes are assessed against the Mortgagee, shall promptly pay to the Mortgagee
such amount or amounts as may be necessary from time to time to pay any such taxes, assessments or
other charges resulting therefrom; provided, that if any such payment or reimbursement
shall be unlawful or taxable to Mortgagee, or would constitute usury or render the indebtedness
wholly or partially usurious under applicable law, the Mortgagor shall pay or reimburse Mortgagee
for payment of the lawful and non-usurious portion thereof.




          SECTION 6.4. Proceeds of Tax Claim. In the event that the proceeds of any tax claim are paid after the Mortgagee has exercised
its right to foreclose the Lien hereof, such proceeds shall be paid to the Mortgagee to satisfy any
deficiency remaining after such foreclosure. The Mortgagee shall retain its interest in the
proceeds of any tax claim during any redemption period. The amount of any such proceeds in excess
of any deficiency claim of the Mortgagee shall in a reasonably prompt manner be released to the
Mortgagor.




ARTICLE VII.




CONTESTING OF PAYMENTS



          SECTION 7.1. Contesting of Taxes and Certain Statutory Liens. The Mortgagor may at its own expense contest in good faith by appropriate proceedings the
validity, amount or applicability of any Charges or any law, provided, that (x) in the case of a
Charge, such contest would result in such Charge being a Permitted Collateral Lien, or (y) (i) such
proceedings are initiated prior to the delinquency of any such Charge, (ii) there is no imminent
foreclosure or risk of loss of the subject Mortgaged Property, (iii) Mortgagor diligently pursues
such proceedings to completion, and, (iv) in the case of Charges, adequate reserves with respect
thereto in accordance with GAAP have been set aside on the Co-Issuers’ or Mortgagor’s books.




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ARTICLE VIII.




DESTRUCTION, CONDEMNATION AND RESTORATION



          SECTION 8.1. Destruction and Restoration. Mortgagor or its affiliates shall have the right to retain the Proceeds received by the
Mortgagor or its affiliates in respect to any Destruction, except as required to be otherwise
applied in accordance with the Events of Loss provisions set forth in the Indenture.




          SECTION 8.2. Condemnation. If there shall occur any Taking or the commencement of any proceeding therefor, the
Mortgagor shall promptly notify the Mortgagee upon receiving notice of such Taking or commencement
of proceedings therefor. The Mortgagee may participate in any proceedings or negotiations which
are reasonably likely to result in any Taking, and the Mortgagor shall deliver or cause to be
delivered to the Mortgagee all instruments reasonably requested by it to permit such participation.
The Mortgagee may be represented by counsel satisfactory to it at the reasonable expense of the
Mortgagor in connection with any such participation. The Mortgagor shall pay all reasonable fees,
costs and expenses incurred by the Mortgagee in connection with any Taking and in seeking and
obtaining any award or payment on account thereof. Mortgagor or its affiliates shall have the
right to retain any proceeds, award or payment in respect of any Taking, except as required to be
otherwise applied in accordance with the Event of Loss provisions set forth in the Indenture.




          SECTION 8.3. Availability of Proceeds. Any Proceeds received by Mortgagor or its affiliates as a result of any Destruction or
Taking shall be applied in accordance with the Event of Loss provisions set forth in the Indenture.




ARTICLE IX.




EVENT OF DEFAULT AND REMEDIES



          SECTION 9.1. Events of Default. The occurrence of any Event of Default under the Indenture (as defined therein) shall
constitute an “Event of Default” hereunder.




          SECTION 9.2. Remedies in Case of an Event of Default. If any Event of Default shall have occurred and be continuing, the Mortgagee may at its
option, in addition to any other action permitted under this Mortgage or the other Notes Documents
or by law, statute or in equity, take one or more of the following actions to the greatest extent
permitted by applicable law:




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     (i) by written notice to the Mortgagor, and subject to the requirements of the
Indenture, declare the entire unpaid amount of the Secured Obligations to be due and payable
immediately;




     (ii) personally, or by its agents or attorneys, (A) enter into and upon and take
possession of all or any part of the Premises together with the books, records and accounts
of the Mortgagor relating thereto and, exclude the Mortgagor, its agents and servants wholly
therefrom, (B) use, operate, manage and control the Premises and conduct the business
thereof, (C) maintain and restore the Premises, (D) make all necessary or proper repairs,
renewals and replacements and such useful Alterations thereto and thereon as the Mortgagee
may deem advisable, (E) manage, lease and operate the Premises and carry on the business
thereof and exercise all rights and powers of the Mortgagor with respect thereto either in
the name of the Mortgagor or otherwise or (F) collect and receive all Rents. The Mortgagee
shall be under no liability for or by reason of any such taking of possession, entry,
removal or holding, operation or management except for any liability arising solely out of
its gross negligence or willful misconduct;




     (iii) with or without entry, personally or by its agents or attorneys, (A) sell the
Mortgaged Property and any or all estate, right, title and interest, claim and demand
therein at one or more sales in one or more parcels, in accordance with the provisions of
Section 9.3 or (B) institute and prosecute proceedings for the complete or partial
foreclosure of the Lien and security interests created and evidenced hereby; or




     (iv) take such steps to protect and enforce its rights whether by action, suit or
proceeding at law or in equity for the specific performance of any covenant, condition or
agreement in the Indenture, this Mortgage and the other Notes Documents, or in aid of the
execution of any power granted in this Mortgage, or for any foreclosure hereunder, or for
the enforcement of any other appropriate legal or equitable remedy or otherwise as the
Mortgagee shall elect.



          SECTION 9.3. Sale of Mortgaged Property if Event of Default Occurs; Proceeds of Sale.





     (i) If any Event of Default shall have occurred and be continuing, the Mortgagee may
institute an action to foreclose this Mortgage or take such other action as
may be permitted and available to the Mortgagee at law or in equity for the enforcement
of the Indenture and realization on the Mortgaged Property and proceeds thereon through
power of sale (if then available under applicable law) or to final judgment and execution
thereof for the Secured Obligations, and in furtherance thereof the Mortgagee may sell the
Mortgaged Property at one or more sales, as an entirety or in parcels, at such time and
place, upon such terms and after such notice thereof as may be required or permitted by law
or statute or in equity. The Mortgagee may execute and deliver to the purchaser at



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such
sale a conveyance of the Mortgaged Property in fee simple and an assignment or conveyance of
all the Mortgagor’s Interest in the Leases and the Mortgaged Property, each of which
conveyances and assignments shall contain recitals as to the Event of Default upon which the
execution of the power of sale herein granted depends, and effective upon the occurrence and
during the continuance of an Event of Default the Mortgagor hereby constitutes and appoints
the Mortgagee the true and lawful attorney-in-fact of the Mortgagor to make any such
recitals, sale, assignment and conveyance, and all of the acts of the Mortgagee as such
attorney in fact are hereby ratified and confirmed. The Mortgagor agrees that such recitals
shall be binding and conclusive upon the Mortgagor and that any assignment or conveyance to
be made by the Mortgagee shall divest the Mortgagor of all right, title, interest, equity
and right of redemption, including any statutory redemption (which rights are hereby
expressly waived to the fullest extent permitted by applicable law), in and to the Mortgaged
Property. The power and agency hereby granted are coupled with an interest and are
irrevocable by death or dissolution, or otherwise, and are in addition to any and all other
remedies which the Mortgagee may have hereunder, at law or in equity. So long as the
Secured Obligations, or any part thereof, remain unpaid, the Mortgagor agrees that upon the
occurrence and during the continuance of an Event of Default possession of the Mortgaged
Property by the Mortgagor, or any person claiming under the Mortgagor, shall be as tenant,
and, in case of a sale under power or upon foreclosure as provided in this Mortgage, the
Mortgagor and any person in possession under the Mortgagor, as to whose interest such sale
was not made subject, shall, at the option of the purchaser at such sale, then become and be
tenants holding over, and shall forthwith deliver possession to such purchaser, or be
summarily dispossessed in accordance with the laws applicable to tenants holding over. In
case of any sale under this Mortgage by virtue of the exercise of the powers herein granted,
or pursuant to any order in any judicial proceeding or otherwise, the Mortgaged Property may
be sold as an entirety or in separate parcels in such manner or order as the Mortgagee in
its sole discretion may elect. One or more exercises of powers herein granted shall not
extinguish or exhaust such powers, until the entire Mortgaged Property is sold or all
amounts secured hereby are paid in full.





     (ii) In the event of any sale made under or by virtue of this Article IX, the
entire principal of, and interest in respect of the Secured Obligations, if not previously
due and payable, shall, at the option of the Mortgagee, immediately become due and payable,
anything in this Mortgage to the contrary notwithstanding.




     (iii) The proceeds of any sale made under or by virtue of this Article IX,
together with any other sums which then may be held by the Mortgagee under this Mortgage,
whether under the provisions of this Article IX or otherwise, shall be applied in
the following order, except as may be otherwise provided herein or in the Indenture:
first, to the payment of all costs and expenses of such sale, collection or other
realization, including reasonable compensation to the Collateral Agent and its agents and
counsel, and all other expenses, liabilities and advances made or incurred by the Collateral
Agent



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in connection therewith, and all amounts for which the Collateral Agent is entitled to
indemnification hereunder (in its capacity as the Collateral Agent) and all advances made by
the Collateral Agent hereunder, and to the payment of all costs and expenses paid or
incurred by the Collateral Agent in connection with the exercise of any right or remedy
hereunder or under the Indenture, all in accordance with the terms hereof or thereof;
second, to the extent of any excess of such proceeds, to the payment of all other
Secured Obligations for the ratable benefit of the Secured Parties; and third, to
the extent of any excess of such proceeds, to the payment to or upon the order of the
Mortgagor or to whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.





     (iv) The Mortgagee (on behalf of any Secured Party or on its own behalf) may bid for
and acquire the Mortgaged Property or any part thereof at any sale made under or by virtue
of this Article IX and, in lieu of paying cash therefor, may make settlement for the
purchase price by crediting against the purchase price the unpaid amounts (whether or not
then due) owing to the Mortgagee in respect of the Secured Obligations, after deducting from
the sales price the expense of the sale and the reasonable costs of the action or
proceedings and any other sums that the Mortgagee is authorized to deduct under this
Mortgage.




     (v) The Mortgagee may adjourn from time to time any sale by it to be made under or by
virtue hereof by announcement at the time and place appointed for such sale or for such
adjourned sale or sales, and the Mortgagee, without further notice or publication, may make
such sale at the time and place to which the same shall be so adjourned.




     (vi) If the Premises is comprised of more than one parcel of land, the Mortgagee may
take any of the actions authorized by this Section 9.3 in respect of any or a number
of individual parcels.




     (vii) To the fullest extent permitted by law, Mortgagor, for itself and all who may
claim through or under Mortgagor, hereby irrevocably and unconditionally waives (a) any and
all rights to have the Mortgaged Property and estates comprising the Mortgaged Property
marshaled upon any foreclosure of the lien of this Mortgage, and agrees that any court
having jurisdiction to foreclose such lien may order the Mortgaged Property sold in its
entirety, and (b) all benefit that might accrue to Mortgagor by virtue
of any present or future statute of limitations or law or judicial decision exempting
the Mortgaged Property from attachment, levy or sale on execution or providing for any stay
of execution, exemption from civil process, redemption or extension of time for payment.



          SECTION 9.4. Additional Remedies in Case of an Event of Default.





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     (i) The Mortgagee shall be entitled to recover judgment as aforesaid either before,
after or during the pendency of any proceedings for the enforcement of the provisions
hereof, and the right of the Mortgagee to recover such judgment shall not be affected by any
entry or sale hereunder, or by the exercise of any other right, power or remedy for the
enforcement of the provisions hereof, or the foreclosure of, or absolute conveyance pursuant
to, this Mortgage. In case of proceedings against the Mortgagor in insolvency or bankruptcy
or any proceedings for its reorganization or involving the liquidation of its assets, the
Mortgagee shall be entitled to prove the whole amount of principal and interest and other
payments, charges and costs due in respect of the Secured Obligations to the full amount
thereof without deducting therefrom any proceeds obtained from the sale of the whole or any
part of the Mortgaged Property; provided, however, that in no case shall the
Mortgagee receive a greater amount than the aggregate of such principal, interest and such
other payments, charges and costs (with interest at the Default Rate) from the proceeds of
the sale of the Mortgaged Property and the distribution from the estate of the Mortgagor.




     (ii) Any recovery of any judgment by the Mortgagee and any levy of any execution under
any judgment upon the Mortgaged Property shall not affect in any manner or to any extent the
Lien and security interests created and evidenced hereby upon the Mortgaged Property or any
part thereof, or any conveyances, powers, rights and remedies of the Mortgagee hereunder,
but such conveyances, powers, rights and remedies shall continue unimpaired as before.




     (iii) Any monies collected by the Mortgagee under this Section 9.4 shall be
applied in accordance with the provisions of Section 9.3(iii).



          SECTION 9.5. Legal Proceedings After an Event of Default.





     (i) After the occurrence and during the continuance of any Event of Default and
immediately upon the commencement of any action, suit or legal proceedings to obtain
judgment for the Secured Obligations or any part thereof, or of any proceedings to foreclose
the Lien and security interest created and evidenced hereby or otherwise enforce the
provisions hereof or of any other proceedings in aid of the enforcement
hereof, the Mortgagor shall enter its voluntary appearance in such action, suit or
proceeding.




     (ii) Upon the occurrence and during the continuance of an Event of Default, the
Mortgagee shall be entitled forthwith as a matter of right, concurrently or independently of
any other right or remedy hereunder either before or after declaring the Secured Obligations
or any
part thereof to be due and payable, to the appointment of a receiver without giving
notice to any party and without regard to the adequacy or inadequacy of any security for the
Secured Obligations or the solvency or insolvency of any person or entity then legally or
equitably liable for the Secured Obligations or any



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portion thereof. The Mortgagor hereby
consents to the appointment of such receiver. Notwithstanding the appointment of any
receiver, the Mortgagee shall be entitled as pledgee to the possession and control of any
cash, deposits or instruments at the time held by or payable or deliverable under the terms
of the Security Documents.




     (iii) The Mortgagor shall not (A) at any time insist upon, or plead, or in any manner
whatsoever claim or take any benefit or advantage of any stay or extension or moratorium
law, any exemption from execution or sale of the Mortgaged Property or any part thereof,
wherever enacted, now or at any time hereafter in force, which may affect the covenants and
terms of performance hereof, (B) claim, take or insist on any benefit or advantage of any
law now or hereafter in force providing for the valuation or appraisal of the Mortgaged
Property, or any part thereof, prior to any sale or sales of the Mortgaged Property which
may be made pursuant to this Mortgage, or pursuant to any decree, judgment or order of any
court of competent jurisdiction or (C) after any such sale or sales, claim or exercise any
right under any statute heretofore or hereafter enacted to redeem the property so sold or
any part thereof. To the extent permitted by applicable law, the Mortgagor hereby expressly
(W) waives all benefit or advantage of any such law or laws, including, without limitation,
any statute of limitations applicable to this Mortgage, (X) waives any and all rights to
trial by jury in any action or proceeding related to the enforcement hereof, (Y) waives any
objection which it may now or hereafter have to the laying of venue of any action, suit or
proceeding brought in connection with this Mortgage and further waives and agrees not to
plead that any such action, suit or proceeding brought in any such court has been brought in
an inconvenient forum and (Z) covenants not to hinder, delay or impede the execution of any
power granted or delegated to the Mortgagee by this Mortgage but to suffer and permit the
execution of every such power as though no such law or laws had been made or enacted. The
Mortgagee shall not be liable for any incorrect or improper payment made pursuant to this
Article IX in the absence of gross negligence or willful misconduct.



          SECTION 9.6. Remedies Not Exclusive. No remedy conferred upon or reserved to the Mortgagee by this Mortgage is intended to be
exclusive of any other remedy or remedies, and each and every such remedy shall
be cumulative and shall be in addition to every other remedy given under this Mortgage or now
or hereafter existing at law or in equity. Any delay or omission of the Mortgagee to exercise any
right or power accruing on any Event of Default shall not impair any such right or power and shall
not be construed to be a waiver of or acquiescence in any such Event of Default. Every power and
remedy given by this Mortgage may be exercised from time to time concurrently or independently,
when and as often as may be deemed expedient by the Mortgagee in such order and manner as the
Mortgagee, in its sole discretion, may elect. If the Mortgagee accepts any monies required to be
paid by the Mortgagor under this Mortgage after the same become due, such acceptance shall not
constitute a waiver of the right either to require prompt payment, when due, of all other
sums
secured by this Mortgage or to declare an Event of Default with regard to subsequent defaults. If
the Mortgagee accepts any monies required to be paid by the Mortgagor under this Mortgage in an
amount less than the




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sum then due, such acceptance shall be deemed an acceptance on account only
and on the condition that it shall not constitute a waiver of the obligation of the Mortgagor to
pay the entire sum then due, and the Mortgagor’s failure to pay the entire sum then due shall be
and continue to be a default hereunder notwithstanding acceptance of such amount on account.




          SECTION 9.7. Costs of Enforcement. All sums advanced and expenses incurred at any time by Mortgagee or any Secured Party under
this Article IX shall bear interest at the Default Rate from the date that such sum was
advanced or expense incurred to and including the date of reimbursement, and such shall be Secured
Obligations hereunder. Mortgagor shall pay all expenses (including reasonable attorneys’ fees and
expenses) of or incidental to the perfection and enforcement of this Mortgage and the other
Security Documents, or the enforcement, compromise or settlement of the Secured Obligations or any
claim under this Mortgage and the other Security Documents, or for defending or asserting the
rights and claims of Mortgagee or the Secured Parties in respect thereof, by litigation or
otherwise.




ARTICLE X.




SECURITY AGREEMENT AND FIXTURE FILING



          SECTION 10.1. Security Agreement. To the extent that the Mortgaged Property includes personal property or items of personal
property which are or are to become fixtures under applicable law, this Mortgage shall also be
construed as a security agreement under the UCC; and, upon the occurrence and during the
continuance of an Event of Default, the Mortgagee shall be entitled with respect to such personal
property to exercise all remedies hereunder, all remedies available under the UCC with respect to
fixtures and all other remedies available under applicable law. Without limiting
the foregoing, such personal property may, at the Mortgagee’s option upon the occurrence and
during the continuance of an Event of Default, (i) be sold hereunder together with any sale of any
portion of the Mortgaged Property or otherwise, (ii) be sold pursuant to the UCC, or (iii) be dealt
with by the Mortgagee in any other manner permitted under applicable law. The Mortgagee may
require the Mortgagor to assemble such personal property and make it available to the Mortgagee at
a place to be designated by the Mortgagee. The Mortgagor acknowledges and agrees that a
disposition of the personal property in accordance with the Mortgagee’s rights and remedies in
respect to the Mortgaged Property as heretofore provided is a commercially reasonable disposition
thereof; provided, however, that the Mortgagee shall give the Mortgagor not less than ten (10)
days’ prior notice of the time and place of any intended disposition.




          SECTION 10.2. Fixture Filing. To the extent that the Mortgaged Property includes items of personal property which are or
are to become fixtures under applicable law, and to the extent permitted under applicable law, the
filing hereof in the real estate records of the county in which such Mortgaged Property is located
shall also operate from the time of filing as




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a fixture filing with respect to such Mortgaged
Property, and the following information is applicable for the purpose of such fixture filing, to
wit:




	 	 	 

	Name and Address of the debtor:

	 	Name and Address of the secured party:
	 
	 	 
	The Mortgagor having the address
described in the Preamble hereof.


The Mortgagor is a limited liability
company organized under the laws of the
State of Delaware whose Organization
Number is 3957245.

	 	The Mortgagee having the
address described in the
Preamble hereof, from which
address information concerning
the security interest may be
obtained.





This Financing Statement covers the following types or items of property:



The Mortgaged Property.



This Mortgage covers goods or items of personal property which are or are to
become fixtures upon the Land or Improvements.



The name of the record owner of the Land and Improvements on which such
fixtures are or are to be located is the Mortgagor.



In addition, Mortgagor authorizes the Mortgagee to file appropriate financing and continuation
statements under the UCC in effect in the jurisdiction in which the Mortgaged Property is located
which Mortgagee deems necessary to establish, preserve and protect the liens and security interests
intended to be granted to the Mortgagee pursuant to this Mortgage in the Mortgaged Property.




ARTICLE XI.




FURTHER ASSURANCES



          SECTION 11.1. Recording Documentation To Assure Security. The Mortgagor shall, forthwith after the execution and delivery hereof and thereafter, from
time to time, cause this Mortgage and any financing statement, continuation statement or similar
instrument relating to any thereof or to any property intended to be subject to the Lien hereof to
be filed, registered and recorded 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 protect the validity and priority
thereof (subject to Permitted Collateral Liens) or the Lien hereof purported to be created upon the
Mortgaged Property and the interest and rights of the Mortgagee therein.




          SECTION 11.2. Further Acts. The Mortgagor shall, at the sole cost and expense of the Mortgagor, do, execute,
acknowledge and deliver all and every such further acts,




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deeds, conveyances, mortgages,
assignments, notices of assignment, transfers, financing statements, continuation statements,
instruments and assurances as the Mortgagee shall from time to time request, which may be necessary
in the reasonable judgment of the Mortgagee from time to time to assure, perfect, convey, assign,
mortgage, transfer and confirm unto the Mortgagee, the property and rights hereby conveyed or
assigned or which the Mortgagor may be or may hereafter become bound to convey or assign to the
Mortgagee or for carrying out the intention or facilitating the performance of the terms hereof or
the filing, registering or recording hereof. Without limiting the generality of the foregoing, in
the event that the Mortgagee desires to exercise any remedies, consensual rights or
attorney-in-fact powers set forth in this Mortgage and determines it necessary to obtain any
approvals or consents of any Governmental Authority or any other person therefor, then, upon the
request of the Mortgagee, the Mortgagor agrees to reasonably assist and aid the Mortgagee to obtain
as soon as practicable any necessary approvals or consents for the exercise of any such remedies,
rights and powers. In the event the Mortgagor shall fail after demand to execute any instrument or
take any action required to be executed or taken by the Mortgagor under this Section 11.2,
the Mortgagee, upon notice to Mortgagor, may execute or take the same as the attorney-in-fact for
the Mortgagor, such power of attorney being coupled with an interest and is irrevocable.




          SECTION 11.3. Additional Security. Without notice to or consent of the Mortgagor and without impairment of the Lien and rights
created by this Mortgage, the Mortgagee may accept (but the Mortgagor shall not be obligated to
furnish) from the Mortgagor or from any other person, additional security for the Secured
Obligations. Neither the giving hereof nor the acceptance of any such additional security shall
prevent the Mortgagee from resorting, first, to such additional security, and,
second, to the security created by this Mortgage without affecting the Mortgagee’s Lien and
rights under this Mortgage.




ARTICLE XII.




MISCELLANEOUS



          SECTION 12.1. Covenants To Run with the Land. All of the grants, covenants, terms, provisions and conditions in this Mortgage shall run
with the Land and shall apply to, and bind the successors and assigns of, the Mortgagor. If there
shall be more than one mortgagor with respect to the Mortgaged Property, the covenants and
warranties hereof shall be joint and several.




          SECTION 12.2. Environmental Indemnity.





          (i) All risk of loss associated with non-compliance with Environmental Laws at the Mortgaged
Property, or with the presence of any Hazardous Material at, upon, within, contiguous to or
otherwise affecting the Mortgaged Property or any portion thereof, shall be



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solely with Mortgagor.
Accordingly, Mortgagor shall bear all risks and costs associated with any loss (including any loss
in value attributable to Hazardous Materials), damage or liability from such non-compliance or
presence of any Hazardous Material, including all costs of removal of such Hazardous Material or
other related remediation required by Environmental Laws. Mortgagor shall indemnify, defend and
hold Collateral Agent harmless from and against all loss, liabilities, damages, claims, costs and
expenses (including reasonable costs of defense) (hereinafter collectively referred to as
“Liabilities”), arising out of or associated, in any way, with:




	 	(A)	 	the non-compliance of the Mortgaged Property
with Environmental Laws; or
	 
	 	(B)	 	the existence or presence of Hazardous
Materials in concentrations in excess of applicable standards under
Environmental Laws in, on, or about the Mortgaged Property or any
portion thereof;




whether based in contract, tort, implied or express warranty, strict liability, criminal or civil
statute or common law, including those Liabilities arising from the joint, concurrent or
comparative negligence of Collateral Agent; however, Mortgagor shall not be liable under
such indemnification to the extent such Liabilities result directly from Collateral Agent’s gross
negligence or willful misconduct.



Mortgagor’s obligations under this Section shall arise upon the discovery of the presence of any
Hazardous Material, whether or not any governmental authority has taken or threatened any action in
connection with the presence of any Hazardous Materials and whether or not the existence of any
such Hazardous Material or potential liability on account thereof is disclosed in the Site
Assessment and shall continue notwithstanding the repayment of the Notes or any transfer or sale of
any right, title and interest in the Mortgaged Property or any portion thereof (by foreclosure,
deed in lieu of foreclosure or otherwise), but shall not apply to any actions taken or events
occurring after such transfer or sale or after Mortgagee or a receiver in any bankruptcy proceeding
takes possession of the Mortgaged Property. For the avoidance of doubt, such liabilities shall
survive any such transfer or sale or taking possession to the extent such liabilities arose, or are
the result of circumstances or actions occurring, prior to such transfer, sale or taking
possession.




          SECTION 12.3. No Merger. The rights and estate created by this Mortgage shall not, under any circumstances, be held
to have merged into any other estate or interest now owned or hereafter acquired by the Mortgagee
unless the Mortgagee shall have consented to such merger in writing.




          SECTION 12.4. Secured Obligations to Include Judgments; Other Collateral. The term “Secured Obligations” as defined in this Mortgage shall include, without
limitation, any judgment(s) or final decree(s) rendered to collect any money obligations of
Mortgagor to Mortgagee and/or any Secured Parties and/or to enforce the performance or collection
of all




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rights, remedies, obligations, covenants, agreements, conditions, indemnities,
representations, warranties, and other liabilities of the Mortgagor under this Mortgage or any or
all of the other Notes Documents. Furthermore, Mortgagor acknowledges and agrees that the Secured
Obligations are secured by the Mortgaged Property and various other collateral at the time of
execution of this Mortgage. Mortgagor specifically acknowledges and agrees that the Mortgaged
Property, in and of itself, if foreclosed or realized upon would not be sufficient to satisfy the
outstanding amount of the Secured Obligations. Accordingly, Mortgagor acknowledges that it is in
Mortgagee’s contemplation that the other collateral pledged to secure the Secured Obligations may
be pursued by Mortgagee in separate proceedings in the various states and counties where such
collateral may be located and additionally that Mortgagor will remain liable for any deficiency
judgments in addition to any amounts Mortgagee and/or the other Secured Parties may realize on
sales of other property or any other collateral given as security for the Secured Obligations.
Specifically, and without limitation of the foregoing, it is agreed that it is the intent of the
parties hereto that in the event of a foreclosure of this Mortgage, that the Secured Obligations
shall not be deemed merged into any judgment of foreclosure, but shall rather remain outstanding to
the fullest extent permitted by applicable law.




          SECTION 12.5. Concerning Mortgagee.




          (i) The Mortgagee has been appointed as Collateral Agent pursuant to the Indenture.




          (ii) The Mortgagee shall be deemed to have exercised reasonable care in the custody and
preservation of the Mortgaged Property in its possession if such Mortgaged Property is accorded
treatment substantially equivalent to that which the Mortgagee, in its individual capacity, accords
its own property consisting of similar instruments or interests, it being understood that neither
the Mortgagee nor any of the Secured Parties shall have responsibility for taking any necessary
steps to preserve rights against any person with respect to any Mortgaged Property.




          (iii) With respect to any of its rights and obligations as a Secured Party, the Mortgagee
shall have and may exercise the same rights and powers hereunder. The term “Secured Parties,”
“Secured Party” or any similar terms shall, unless the context clearly otherwise indicates, include
the Mortgagee in its capacity as Collateral Agent and as a Secured Party. The Mortgagee may accept
deposits from, lend money to, and generally engage in any kind of banking, trust or other business
with the Mortgagor or any Affiliate of the Mortgagor to the same extent as if the Mortgagee were
not acting as Trustee and Collateral Agent.




          (iv) If any portion of the Mortgaged Property also constitutes collateral granted to the
Mortgagee under any other deed of trust, mortgage, security agreement, pledge or instrument of any
type, in the event of any conflict between the provisions hereof and the provisions of such other
deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such
collateral, (x) if the conflict regards personal property covered by the




-33-









 




Security Agreement, the
provisions of the Security Agreement shall control, and (y) in all other cases the Mortgagee, in
its sole discretion, shall select which provision or provisions shall control.




          SECTION 12.6. Mortgagee May Perform; Mortgagee Appointed Attorney-in-Fact. If the Mortgagor shall fail to perform any covenants contained in this Mortgage (including,
without limitation, the Mortgagor’s covenants to (i) pay the premiums in respect of all required
insurance policies hereunder, (ii) pay Charges, (iii) make repairs, (iv) discharge Liens or (v) pay
or perform any obligations of the Mortgagor with respect to any Mortgaged Property), the Mortgagee
may (but shall not be obligated to) (x) following the occurrence of an Event of Default, or (y)
after delivery of notice to Mortgagor and (1) passage of any applicable grace periods hereunder or
under the Indenture, or (2) the passage of such shorter period of time as reasonably necessary to
prevent the Premises from being uninsured or reasonably necessary to prevent an imminent
foreclosure, do the same or cause it to be done or remedy any such breach, and may expend funds for
such purpose, which shall bear interest at the Default Rate and be secured by this Mortgage;
provided, however, that the Mortgagee shall in no event be bound to inquire into the validity of
any tax, lien, imposition or other obligation which the Mortgagor fails
to pay or perform as and when required hereby and which the Mortgagor does not contest in
accordance with the provisions of Article VII hereof. Any and all amounts so expended by
the Mortgagee shall be paid by the Mortgagor in accordance with the provisions hereof. Neither the
provisions of this Section 12.6 nor any action taken by the Mortgagee pursuant to the
provisions of this Section 12.6 shall prevent any such failure to observe any covenant
contained in this Mortgage nor any breach of representation or warranty from constituting an Event
of Default. The Mortgagor hereby appoints the Mortgagee its attorney-in-fact, with full authority
in the place and stead of the Mortgagor and in the name of the Mortgagor, or otherwise, from time
to time in the Mortgagee’s discretion to take any action and to execute any instrument consistent
with the terms hereof and the other Notes Documents which the Mortgagee may deem reasonably
necessary to accomplish the purposes hereof if Mortgagee reasonably believes the security afforded
by this Mortgage may be impaired and if an Event of Default has occurred and is continuing. The
foregoing grant of authority is a power of attorney coupled with an interest and such appointment
shall be irrevocable for the term hereof. The Mortgagor hereby ratifies all that such attorney
shall lawfully do or cause to be done by virtue hereof.




          SECTION 12.7. Continuing Security Interest; Assignment. This Mortgage shall create a continuing Lien on and security interest in the Mortgaged
Property and shall (i) be binding upon the Mortgagor, its successors and assigns and (ii) inure,
together with the rights and remedies of the Mortgagee hereunder, to the benefit of the Mortgagee
for the benefit of the Secured Parties and each of their respective successors, transferees and
assigns. No other persons (including, without limitation, any other creditor of the Co-Issuers or
any of their Subsidiaries) shall have any interest herein or any right or benefit with respect
hereto. Without limiting the generality of the foregoing clause (ii), except to the extent, if
any, prohibited under the Indenture, any Secured Party may assign or otherwise transfer any
indebtedness held by it secured by this Mortgage to any other person, and such other person shall
thereupon become




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vested with all the benefits in respect thereof granted to such Secured Party,
herein or otherwise, subject, however, to the provisions of the Indenture.




          SECTION 12.8. Termination; Release. When all the Secured Obligations have been indefeasibly paid in full or all of the
Mortgaged Property shall otherwise be released from the Lien of this Mortgage pursuant to the
Indenture, the Lien of this Mortgage shall terminate. Upon termination of the Lien hereof or any
release of the Mortgaged Property or any portion thereof (whether arising from a sale of the
Mortgaged Property or otherwise), the Mortgagee shall, upon the request and at the sole cost and
expense of the Mortgagor, forthwith assign, transfer and deliver to the Mortgagor, against receipt
and without recourse to or warranty by the Mortgagee, such of the Mortgaged Property to be released
(in the case of a release) as may be in possession of the Mortgagee and as shall not have been sold
or otherwise applied pursuant to the terms hereof, and, with respect to any other Mortgaged
Property, proper documents and instruments (including UCC-3 termination statements, releases or
assignments of Mortgages) acknowledging the termination of the Lien
hereof or the assignment or release of such Mortgaged Property, as the case may be. In the
case of any such assignment, the terms of the same shall be without recourse to Mortgagee and
without any representation or warranty (express, implied or otherwise) on behalf of Mortgagee, and
Mortgagee shall not enter into or issue any other estoppels, agreements or other instruments in
connection therewith. As a condition precedent to providing such assignment, Mortgagor shall pay
all of Mortgagee’s out-of-pocket costs and expenses in connection therewith (including reasonable
attorneys’ fees).




          SECTION 12.9. Modification in Writing. No amendment, modification, supplement, termination or waiver of or to any provision
hereof, nor consent to any departure by the Mortgagor therefrom, shall be effective unless the same
shall be done in accordance with the terms of the Indenture and unless in writing and signed by the
Mortgagee. Any amendment, modification or supplement of or to any provision hereof, any waiver of
any provision hereof and any consent to any departure by the Mortgagor from the terms of any
provision hereof shall be effective only in the specific instance and for the specific purpose for
which made or given. Except where notice is specifically required by this Mortgage or any other
Notes Document, no notice to or demand on the Mortgagor in any case shall entitle the Mortgagor to
any other or further notice or demand in similar or other circumstances.




          SECTION 12.10. Notices. Any notice to be given or required hereunder shall be provided in accordance with Section
13.02 of the Indenture, to Trustor, Mortgaged Property Trustee, or Beneficiary, as applicable, at
the address set forth below:




          (i) If to Mortgagor:



Mason Family Resorts, LLC

c/o Great Wolf Resorts, Inc.

122 West Washington Avenue

Suite 600




-35-









 







Madison, WI 53703

Attention: General Counsel

Phone: (608) 661-4700

Fax: (608) 661-4701




          (ii) If to Mortgagee:



Great Wolf Administrator

c/o U.S. Bank National Association

60 Livingston Avenue

EP-MN-WS3C

St. Paul, MN 55107-2292

Phone: (651) 495-3918

Fax: (651) 495-8097




          SECTION 12.11. GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. THIS MORTGAGE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER,
OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR ITEM OR TYPE OF MORTGAGED PROPERTY ARE GOVERNED
BY THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. MORTGAGOR AGREES THAT SERVICE OF PROCESS IN
ANY PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE MORTGAGOR AT ITS ADDRESS SET FORTH IN
SECTION 12.10 HEREOF OR AT SUCH OTHER ADDRESS OF WHICH THE MORTGAGEE SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO. IF ANY AGENT APPOINTED BY MORTGAGOR REFUSES TO ACCEPT SERVICE,
MORTGAGOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING
HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF MORTGAGEE TO BRING PROCEEDINGS AGAINST MORTGAGOR IN THE COURTS OF ANY OTHER
JURISDICTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS MORTGAGE OR THE
TRANSACTIONS CONTEMPLATED HEREBY.




          SECTION 12.12. Severability of Provisions. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.




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          SECTION 12.13. Limitation on Interest Payable. It is the intention of the parties to conform strictly to the usury laws, whether state or
Federal, that are applicable to the transaction of which this Mortgage is a part. All agreements
between the Mortgagor and the Mortgagee whether now existing or hereafter arising and whether oral
or written, are hereby expressly limited so that in no contingency or event
whatsoever shall the amount paid or agreed to be paid by the Mortgagor for the use,
forbearance or detention of the money to be loaned under the Indenture or any other Notes Document,
or for the payment or performance of any covenant or obligation contained herein or in the
Indenture or any other Notes Document, exceed the maximum amount permissible under applicable
Federal or state usury laws. If under any circumstances whatsoever fulfillment of any such
provision, at the time performance of such provision shall be due, shall involve exceeding the
limit of validity prescribed by law, then the obligation to be fulfilled shall be reduced to the
limit of such validity. If under any circumstances the Mortgagor shall have paid an amount deemed
interest by applicable law, which would exceed the highest lawful rate, such amount that would be
excessive interest under applicable usury laws shall be applied to the reduction of the principal
amount owing in respect of the Secured Obligations and not to the payment of interest, or if such
excessive interest exceeds the unpaid balance of principal and any other amounts due hereunder, the
excess shall be refunded to the Mortgagor. All sums paid or agreed to be paid for the use,
forbearance or detention of the principal under any extension of credit by the Mortgagee shall, to
the extent permitted by applicable law, and to the extent necessary to preclude exceeding the limit
of validity prescribed by law, be amortized, prorated, allocated and spread from the Effective Date
until payment in full of the Secured Obligations so that the actual rate of interest on account of
such principal amounts is uniform throughout the term hereof.




          SECTION 12.14. Business Days. In the event any time period or any date provided in this Mortgage ends or falls on a day
other than a Business Day, then such time period shall be deemed to end and such date shall be
deemed to fall on the next succeeding Business Day, and performance herein may be made on such
Business Day, with the same force and effect as if made on such other day.




          SECTION 12.15. Relationship. The relationship of the Mortgagee to the Mortgagor hereunder is strictly and solely that of
lender and borrower and mortgagor and mortgagee and nothing contained in the Indenture, this
Mortgage, the other Notes Documents or any other document or instrument now existing or delivered
in connection therewith or otherwise in connection with the Secured Obligations is intended to
create, or shall in any event or under any circumstance be construed as creating a partnership,
joint venture, tenancy-in-common, joint tenancy or other relationship of any nature whatsoever
between the Mortgagee and the Mortgagor other than as lender and borrower and mortgagor and
mortgagee.




          SECTION 12.16. Waiver of Stay.




          (i) The Mortgagor agrees, to the full extent that it may lawfully do so, that in the event
that the Mortgagor or any property or assets of the Mortgagor shall hereafter become




-37-









 







the subject of
a voluntary or involuntary proceeding under the Bankruptcy Code or the
Mortgagor shall otherwise be a party to any Federal or state bankruptcy, insolvency,
moratorium or similar proceeding to which the provisions relating to the automatic stay under
Section 362 of the Bankruptcy Code or any similar provision in any such law is applicable, then, in
any such case, whether or not the Mortgagee has commenced foreclosure proceedings under this
Mortgage, the Mortgagee shall be entitled to relief from any such automatic stay as it relates to
the exercise of any of the rights and remedies (including, without limitation, any foreclosure
proceedings) available to the Mortgagee as provided in this Mortgage or in any other Security
Document.




          (ii) The Mortgagee shall have the right to petition or move any court having jurisdiction over
any proceeding described in Section 12.16(i) hereof for the purposes provided therein, and
the Mortgagor agrees not to oppose any such petition or motion and at Mortgagor’s sole but
reasonable cost and expense, to assist and cooperate with the Mortgagee, as may be reasonably
requested by the Mortgagee from time to time, in obtaining any relief requested by the Mortgagee,
including, without limitation, by filing any such petitions, supplemental petitions, requests for
relief, documents, instruments or other items from time to time reasonably requested by the
Mortgagee or any such court.




          SECTION 12.17. No Credit for Payment of Taxes or Impositions. The Mortgagor shall not be entitled to any credit against the principal, premium, if any,
or interest payable under the Indenture or any other Notes Document, and the Mortgagor shall not be
entitled to any credit against any other sums which may become payable under the terms thereof or
hereof, by reason of the payment of any Charge on the Mortgaged Property or any part thereof.




          SECTION 12.18. No Claims Against the Mortgagee. Nothing contained in this Mortgage shall constitute any consent or request by the
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 Premises or any part thereof, nor as giving the
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 the Mortgagee in respect thereof or any claim that any Lien based on
the performance of such labor or services or the furnishing of any such materials or other property
is prior to the Lien hereof.




          SECTION 12.19. Obligations Absolute. All obligations of the Mortgagor hereunder shall be absolute and unconditional irrespective of:




          (i) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of the Mortgagor or any other obligor;







-38-









 








          (ii) any lack of validity or enforceability of either the Indenture, any other Notes Document,
or any other agreement or instrument relating thereto;




          (iii) any change in the time, manner or place of payment of, or in any other term of, all or
any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure
from either the Indenture, any other Notes Document, or any other agreement or instrument relating
thereto;




          (iv) any exchange, release or non-perfection of any Mortgaged Property or any Other
Collateral, or any release or amendment or waiver of or consent to any departure from any
guarantee, for all or any of the Secured Obligations;




          (v) any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under
or in respect hereof or any other Notes Document except as specifically set forth in a waiver
granted pursuant to the provisions of Section 12.9 hereof; or




          (vi) any other circumstances which might otherwise constitute a defense available to, or a
discharge of, the Mortgagor.




          SECTION 12.20. Mortgagee’s Right To Sever Indebtedness.




          (i) The Mortgagor acknowledges that (A) the Mortgaged Property does not constitute the sole
source of security for the payment and performance of the Secured Obligations and that the Secured
Obligations are also secured by other property of Mortgagor, and property of the Mortgagor’s
Affiliates in other jurisdictions (all such property, collectively, the “Other
Collateral”), (B) the number of such jurisdictions and the nature of the transaction of which
this Mortgage is a part are such that it would have been impracticable for the parties to allocate
to each item of Other Collateral a specific loan amount and to execute in respect of such item a
separate credit agreement and (C) the Mortgagor intends that the Mortgagee have the same rights
with respect to the Mortgaged Property, in foreclosure or otherwise, that the Mortgagee would have
had if each item of Other Collateral had been secured, mortgaged or pledged pursuant to a separate
credit agreement, mortgage or security instrument. In furtherance of such intent, the Mortgagor
agrees that the Mortgagee may at any time by notice (an “Allocation Notice”) to the
Mortgagor allocate a portion (the “Allocated Indebtedness”) of the Secured Obligations to
the Mortgaged Property and sever from the remaining Secured Obligations the Allocated Indebtedness.
From and after the giving of an Allocation Notice with respect to the Mortgaged Property, the
Secured Obligations hereunder shall be limited to the extent set forth in the Allocation Notice and
(as so limited) shall, for all purposes, be construed as a separate loan obligation of the
Mortgagor unrelated to the other transactions contemplated by either the Indenture, any other Notes
Document or any document related to any thereof. To the extent that the proceeds on any
foreclosure of the Mortgaged Property shall exceed the Allocated Indebtedness, such proceeds shall
belong to the Mortgagor and shall not be available
hereunder to satisfy any Secured Obligations of the Mortgagor other than the Allocated




-39-









 




Indebtedness. In any action or proceeding to foreclose the Lien hereof or in connection with any
power of sale, foreclosure or other remedy exercised under this Mortgage commenced after the giving
by the Mortgagee of an Allocation Notice, the Allocation Notice shall be conclusive proof of the
limits of the Secured Obligations hereby secured, and the Mortgagor may introduce, by way of
defense or counterclaim, evidence thereof in any such action or proceeding. Notwithstanding any
provision of this Section 12.20, the proceeds received by the Mortgagee pursuant to this
Mortgage shall be applied by the Mortgagee in accordance with the provisions of Section
9.3(iii) hereof.




          (ii) The Mortgagor hereby waives to the greatest extent permitted under law the right to a
discharge of any of the Secured Obligations under any statute or rule of law now or hereafter in
effect which provides that foreclosure of the Lien hereof or other remedy exercised under this
Mortgage constitutes the exclusive means for satisfaction of the Secured Obligations or which makes
unavailable a deficiency judgment or any subsequent remedy because the Mortgagee elected to proceed
with a power of sale foreclosure or such other remedy or because of any failure by the Mortgagee to
comply with laws that prescribe conditions to the entitlement to a deficiency judgment. In the
event that, notwithstanding the foregoing waiver, any court shall for any reason hold that the
Mortgagee is not entitled to a deficiency judgment, the Mortgagor shall not (A) introduce in any
other jurisdiction such judgment as a defense to enforcement against the Mortgagor of any remedy in
any Notes Document or (B) seek to have such judgment recognized or entered in any other
jurisdiction, and any such judgment shall in all events be limited in application only to the state
or jurisdiction where rendered.




          (iii) In the event any instrument in addition to the Allocation Notice is necessary to
effectuate the provisions of this Section 12.20, including, without limitation, any
amendment to this Mortgage, any substitute promissory note or affidavit or certificate of any kind,
the Mortgagee may execute, deliver or record such instrument as the attorney-in-fact of the
Mortgagor. Such power of attorney is coupled with an interest and is irrevocable.




          (iv) Notwithstanding anything set forth herein to the contrary, the provisions of this
Section 12.20 shall be effective only to the maximum extent permitted by law.




          SECTION 12.21. Multi-Site Real Estate Transaction. Mortgagor acknowledges that this Mortgage is one of a number of mortgages and other
security documents (“Other Mortgages”) 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 Mortgagee of any security for or guarantees of the Secured Obligations, or by any failure,
neglect or omission on the part of Mortgagee to realize upon or protect any Secured Obligation or
any collateral security therefor including the Other Mortgages. The lien of this Mortgage 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




-40-









 




any of the Secured Obligations or of any of the collateral
security therefor, including the Other Mortgages or any guarantee thereof, and, to the fullest
extent permitted by applicable law, 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
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 shall not in any manner
impair the indebtedness hereby secured or the lien of this Mortgage and any exercise of the rights
and remedies of Mortgagee hereunder shall not impair the lien of any of the Other Mortgages or any
of Mortgagee’s rights and remedies thereunder. To the fullest extent permitted by applicable law,
Mortgagor specifically consents and agrees that Mortgagee may exercise its rights and remedies
hereunder and under the Other Mortgages separately or concurrently and in any order that it may
deem appropriate and waives any right of subrogation.




ARTICLE XIII.




STATE OF OHIO PROVISIONS



          To the extent of any conflict between the provisions of this Article XIII and any of
the other provisions of this Mortgage, the provisions of this Article XIII shall control.




          SECTION 13.1. Open-End Mortgage. This mortgage is intended by Mortgagor and Mortgagee to constitute an “Open-End Mortgage” that
complies with Section 5301.232 of the Ohio Revised Code, and is intended, in addition to securing
the Secured Obligations, to secure unpaid balances of advances made after this Mortgage is
delivered to the county recorder for record. The maximum amount of unpaid indebtedness which may be
outstanding at any time (exclusive of interest thereon and exclusive of unpaid balances of advances
made for the payment of taxes, assessments, insurance premiums, and costs incurred for the
protection of the Mortgaged Property) shall not exceed TWO HUNDRED THIRTY MILLION AND NO/100
DOLLARS ($230,000,000). In addition to the Secured Obligations secured hereby, this Mortgage shall
secure unpaid balances of advances made for the payment of taxes, assessments, insurance premiums,
and costs incurred for the protection of the Mortgaged Property as provided in Ohio Revised Code
Section 5301.233.




          SECTION 13.2. Mechanics’ Lien Law. Mortgagee shall be and hereby is authorized and empowered to do, as Mortgagee, all things
provided to be done in the mechanics’ lien laws of the State of Ohio
(including Section 1311.14 of the Ohio Revised Code), and all acts amendatory or supplementary
thereto.




[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]









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          IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be duly executed and delivered
under seal as of the Effective Date.




	 	 	 	 	 	 	 

	 

	 	MASON FAMILY RESORTS, LLC
	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Great Wolf Lodge of PKI, LLC	 	 
	 

	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	GWR Operating Partnership, L.L.L.P.	 	 
	 

	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	GWR OP General Partner, LLC	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Great Wolf Resorts, Inc.	 	 
	 

	 	 	 	its Sole Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ J. Michael Schroeder	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	J. Michael Schroeder	 	 
	 

	 	Title:
	 	Corporate Secretary
	 	 






S-1









 





ACKNOWLEDGMENT




	 	 	 

	STATE OF WISCONSIN

	 	) 
	 

	 	) SS:
	DANE COUNTY

	 	) 






          Before me, a Notary Public in and for said County and State personally appeared the above
named Great Wolf Resorts, Inc., a Delaware corporation, the Sole Member of GWR OP General Partner,
LLC, a Delaware limited liability company, the General Partner of GWR Operating Partnership,
L.L.L.P., a Delaware limited liability limited partnership, the Sole Member of Great Wolf Lodge of
PKI, LLC, a Delaware limited liability company, the Sole Member of Mason Family Resorts, LLC, a
Delaware limited liability company, by J. Michael Schroeder, its Secretary , who acknowledged that
he/she did sign the foregoing instrument, and that the same is the free act and deed of said
limited liability company, and the free act and deed of him/her personally and as such officer.




          In testimony whereof, I have hereunto set my hand and official seal this 5th day of April,
2010.




	 	 	 	 	 
	 	 	 
	 	     /s/ Nikki Rockstroh
 	 
	 	Notary Public

Commission Expires 8/11/2013 	 
	 	 	 
	 








 









 








This instrument prepared outside

the state of Ohio by:

Jeffrey N. Anderson

Latham & Watkins LLP

233 S. Wacker Dr., Suite 5800

Chicago, IL 60606









 









 








Schedule A


Legal Description



Real property in the City of Mason, County of Warren, State of Ohio, described as follows:



Lot 1 of Great Wolf Subdivision as recorded in Plat Book No. 70 on Pages 74 and 75, situated in the
Township of Deerfield (now in the City of Mason), Warren County, Ohio.



The above described parcel being those lands conveyed to Mason Family Resorts, LLC, as recorded in
Official Record Volume 3934, Pages 127 through 129, Recorder’s Office, Warren County, Ohio, and
further identified by Parcel No. 16-18-300-19. The bearings are based on the Engineers Record of
Land Surveys Volume 75, Page 37 of Warren County Records.






 









 








Schedule B


Leases




NONE